Alabama Gas Co. v. City of Montgomery

• Decision Date: 23 January 1947
• Docket Number: 3 Div. 445.
• Citation: 249 Ala. 257,30 So.2d 651
• Parties: ALABAMA GAS CO. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

30 So.2d 651

249 Ala. 257

ALABAMA GAS CO. v. CITY OF MONTGOMERY.

3 Div. 445.

Supreme Court of Alabama

January 23, 1947

Rehearing Denied June 12, 1947.

Hill Hill, Whiting & Rives, of Montgomery, for appellant.

Walter J. Knabe, of Montgomery, for appellee.

LIVINGSTON Justice.

The appeal is from a decree rendered by the Circuit Court of Montgomery County, in Equity, in a declaratory judgment proceeding. Sections 156 et seq., Title 7, Code of 1940.

No question is presented here as to the remedy, all parties desiring under the present procedure to have the merits of the case determined. The fact that no question here was raised as to the remedy of declaratory procedure distinguishes this case from that of L. W. Richardson &amp Co. v. Town of Hamilton, Ala.Sup., 28 So.2d 924, where the demurrer specifically took the point as to an adequate remedy at law.

The bill of complaint, filed by the Alabama Gas Company, a corporation, and hereinafter called the gas company, against the city of Montgomery, hereinafter called the city, has for its principal purpose the construction of section 745, Title 37, Code of 1940. That section provides that, 'The maximum amount of privilege or license tax which the several municipalities within the state may annually assess and collect of persons, operating * * * gas companies (and certain other public utilities) * * * shall not exceed two percent of the gross receipts of the business of such persons, in the municipality for the preceding year.'

Other questions relate to the validity and effect of certain city ordinances enacted by the city under its taxing authority.

There is little, if any, dispute about the facts in the case. The following statement is sufficient for an understanding of the conclusions here reached.

Since prior to 1942, the gas company has been engaged in the business of furnishing natural gas for heating, lighting and power to consumers within the city and also to a number of consumers outside the corporate limits, but within the police jurisdiction of the city. Throughout that period of time the gas company has been the only person, firm or corporation engaged in such business in the city or county of Montgomery, Alabama. One branch of the gas company's business consists of selling gas appliances and fixtures, operating a retail store for that purpose. When requested, the gas company installs pipes and appliances in the customers' houses and charges the customers as any other plumbing concern or gas fitter charges. From the meter into the consumer's home, it is optional with the consumer to use the services of the gas company or other independent contractors. The installation and servicing of pipes and appliances from the meter into the consumer's premises is treated as a part of the merchandising branch of the gas company's business, and the gas company pays to the city a license tax on that business regardless of whether it is done within or without the city limits. There is no dispute here concerning the license tax on this phase of the gas company's business.

As stated, the other phase of the gas company's business is the furnishing of natural gas to customers within the corporate limits of the city and to a number of customers without the corporate limits, but within the police jurisdiction of the city. All of the gas so furnished is purchased from the Southern Natural Gas Company, whose main pipe line from Texas and Louisiana runs north of the city of Montgomery. All of the gas sold to the gas company, and by it sold to its customers, comes into the gas company's pipe line through a meter station north of the city and beyond the city limits, but within the police jurisdiction. A part of the gas is piped directly to customers before reaching the city limits. The larger part of the gas is piped into the city through underground pipes and there delivered to the meters of its customers. Some of the gas is piped through parts of the city to meters of consumers outside of the city, but within the police jurisdiction. The territory serviced by the gas company is confined to the city and its police jurisdiction. The actual sales and measuring of the gas occur at the meter of the consumer. Up to that point it belongs to the gas company and after it passes through the meter it is the consumer's gas. Gunter and Maxwell Fields, two large Army air fields, pay for the gas as a whole delivered to a central meter within the government reservations, rather than to individual consumers.

The gas company maintains an office in the city. The locale of its management is that office. Bills for gas furnished are sent out monthly from that office. Payments are made in person at the office or by checks mailed to the office, and the money is deposited in a Montgomery bank. All business with the gas company, including applications for gas, meter deposits, the making of contracts, is transacted at the gas company's office in the city, and all its records and books are kept there. The headquarters of the service and inspection departments of the gas company is located in the city, but in a building other than the building in which the gas company maintains its office.

The gas company has paid all license taxes claimed by the city for gas furnished for heating, lighting and power purposes to consumers within the corporate limits of the city, and no question is here presented concerning such taxes. It has paid no license tax for gas furnished for heating, lighting and power purposes to consumers without the corporate limits of the city, but within the police jurisdiction thereof. The authority to levy and collect such taxes, and the amount thereof, are questions for determination.

It is well understood that municipal legislative power is delegated power derived from and part of the legislative power of the State. Mitchell v. City of Birmingham, 222 Ala. 389, 133 So. 13; Y. W. C. A. v. Gunter, 230 Ala. 521, 162 So. 120; Yeilding v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580. And the power of a municipality to license business or occupation can be exercised only where it is plainly conferred by the State, either in express terms or by necessary implication. It will not be inferred from terms of uncertain import. 37 Corpus Juris page 178, section 18; 38 Am.Jur. page 17, section 325; City of Mobile v. Gentry, 170 Ala. 234, 54 So. 488; City of Mobile v. Richards, 98 Ala. 594, 12 So. 793; Van Hook v. Selma, 70 Ala. 361, 45 Am.Rep. 85; Nashville, C. & St. L. R. Co. v. Attalla, 118 Ala. 362, 24 So. 450.

The following statutes are controlling here:

Section 735, Title 37, Code. 'All municipalities shall have the power to license any exhibition, trade, business, vocation, occupation, or profession not prohibited by the constitution or laws of the state, which may be engaged in or carried on in the city or town; to fix the amount of licenses, the time for which they are to run not exceeding one year, and provide a penalty for doing business without a license, and to charge a fee of not exceeding fifty cents for issuing each license; to require sworn statements as to the amount of capital invested, or value of goods or stocks, or amounts of sales or receipts where the amount of the license is made to depend upon the amount of capital invested, or value of goods or stocks or amount of sales or receipts, and to punish any person or corporation for failure or refusal to furnish sworn statements or for giving of false statements in relation thereto. The license herein authorized as to persons, firms or corporations engaged in business in connection with interstate commerce, shall be confined to that portion within the limits of the state, and where such person, firm or corporation has an office or transacts business in the city or town imposing the license. The power to license conferred by this article may be used in the exercise of the police power as well as for the purpose of raising revenue, one or both.'

Section 745, Title 37, Code. 'The maximum amount of privilege or license tax which the several municipalities within the state may annually assess and collect of persons, operating (electric, hydro-electric) street railroad, electric light and power companies, gas companies, water works companies, pipe line companies for transporting or carrying gas, oil, gasoline, water or other commodities, gas distributing companies whether by means of pipe lines or by tanks, drums, tubes, cylinders, or otherwise, heating companies or other public utility, incorporated under the laws of this state, or any other state, or whether incorporated at all or not, except telephone and telegraph companies, railroad and sleeping car companies, and express companies which are otherwise licensed shall not exceed two percent of the gross receipts of the business of such persons, in the municipality for the preceding year. Provided that this shall not affect any existing contract between any municipality and any public utility operating therein.'

Section 733, Title 37, Code (Pocket Part). 'Any city or town within the State of Alabama may fix and collect licenses for any business, trade or profession done within the police jurisdiction of such city or town but outside the corporate limits thereof; provided, however, that the amount of such licenses shall not be more than one-half the amount charged and collected as a license for like business, trade or profession done within the corporate limits of such city or town, fees and penalties excluded. Provided, further, that when the place at which any such business, trade or profession is done or carried on within the police jurisdiction of two or more municipalities which levy the licenses thereon authorized by this section, such licenses paid to and...