77 So. 383 (Ala. 1917), 4 Div. 745, Standard Chemical & Oil Co. v. City of Troy

Docket Nº:4 Div. 745
Citation:77 So. 383, 201 Ala. 89
Opinion Judge:THOMAS, J.
Attorney:John H. Wilkerson, of Troy, for appellant. C.C. Brannen, of Troy, for appellee.
Case Date:December 20, 1917
Court:Supreme Court of Alabama

Page 383

77 So. 383 (Ala. 1917)

201 Ala. 89




4 Div. 745

Supreme Court of Alabama

December 20, 1917

Appeal from Circuit Court, Pike County; A.B. Foster, Judge.

Suit by the City of Troy against the Standard Chemical & Oil Company to recover busi ness license taxes. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Acts 1911, p. 449) § 6. Affirmed.

Page 384

John H. Wilkerson, of Troy, for appellant.

C.C. Brannen, of Troy, for appellee.


The trial was had by the court without a jury, on an agreed statement of facts. The suit was predicated on ordinances of the city of Troy, being instituted by the municipality, appellee, against appellant, the Standard Chemical & Oil Company, a corporation, and sought to recover of the defendant certain business license taxes claimed to be due by it to the municipality under said ordinances, for the carrying on of the business of manufacturing or mixing fertilizers, and the business of an oil mill.

Count 2 was for license taxes claimed to be due for carrying on the business of manufacturing or mixing fertilizers outside of the corporate limits of Troy, "but within the police jurisdiction thereof"; the defendant having an agency or office in the city of Troy for the sale of fertilizers, and for which business plaintiff had, by an ordinance duly and legally adopted, imposed a license or privilege tax, the ordinance being set out as a part of each count. Count 3 was of like tenor, though it claimed the designated sum as due plaintiff from defendant as license taxes, for the carrying on of "the business of an oil mill *** outside of the corporate limits of the city of Troy, but within the police jurisdiction thereof." To each count defendant's demurrer was overruled.

The question for decision is, May the city, under a valid ordinance and in the reasonable exercise of its police power, impose a license on a manufacturing business, of the nature here dealt with, operated without the city limits, but within its police jurisdiction? That is to say, does the right to reasonably enforce police and sanitary regulations embrace the right to license and tax businesses carried on without the corporate limits of a city, but within its police jurisdiction, having due regard to the cost to the city of furnishing police protection in the indicated zone, and to the value of the same to the business concerns affected.

Mr. Dillon observes of the exercise of the police power:

"The natural and appropriate, although not the exclusive, function of ordinances is in legislation by the people of the locality, or their duly constituted representatives, for the conduct or government of the municipality and its inhabitants. Such legislation usually relates to the exercise of the police power delegated to the municipality by the Legislature, and is the means by which the municipality exercises the powers of restraint over the inhabitants and the use of property within the territorial limits, which are confided to the municipal government for the general good of the city and its inhabitants. The suppression of nuisances, the preservation of the public health, the prevention of fires, the regulation of trades and occupations and of the use and storage of dangerous articles, the establishment and control of markets, the suppression of disorderly conduct and breaches of the peace and other similar matters, when regulated, controlled, or directed by ordinances, are the result of the exercise by the municipality of the police power of the state under a delegation thereof by statute or by charter. The limitations of the police power have never been defined, and it is probable that no general limit can be placed upon it other than the requirement that its exercise must be confined to those matters which have a real and substantial relation to the public welfare." Mun. Corp. (5th Ed.) vol. 2, § 660.

Treating of paramount police power, Mr. Justice Fields expressed the doubt that the Legislature, by any contract with an individual, could restrain the power of a subsequent Legislature "to legislate for the public welfare, and to that end suppress any and all practices tending to corrupt the public morals." Boyd v. Alabama, 94 U.S. 645, 24 L.Ed. 302. And Mr. Justice Bradley thus defined the power:

"The plaintiff in error boldly takes the ground that, being a corporation, it has a right, by contract, to manufacture and sell beer forever, notwithstanding and in spite of any exigencies which may occur in the morals or the health of the community, requiring such manufacture to cease. We do not so understand the rights of the plaintiff. The Legislature had no power to confer any such rights. Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and public morals. The Legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the [police] power itself." Beer Co. v. Massachusetts, 7 Otto (97 U.S.) 25, 33, 24 L.Ed. 989.

This definition of the police power was adopted by our court in American Union Telegraph Co. v. Western Union Telegraph Co., 67 Ala. 26, 32, 42 Am.Rep. 90, where the supremacy of the police power of the state was maintained as to the terms on which foreign corporations may prosecute their business within the state. Van Hook v. Selma, 70 Ala. 361, 45 Am.Rep. 85; B.M.R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 27 L.R.A. 263, 46 Am.St.Rep. 92; L. & N.R.R. Co. v. Baldwin, 85 Ala. 619, 5 So. 311, 7 L.R.A. 266.

Concerning the exercise of the police power of regulation by license, and its distinction from the exercise of the power to the end of raising revenue, the Supreme...

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