American Bakeries Co. v. City of Huntsville

• Decision Date: 04 June 1936
• Docket Number: 8 Div. 722
• Citation: 232 Ala. 612,168 So. 880
• Parties: AMERICAN BAKERIES CO. et al. v. CITY OF HUNTSVILLE.
• Court: Alabama Supreme Court

168 So. 880

232 Ala. 612

AMERICAN BAKERIES CO. et al. v. CITY OF HUNTSVILLE.

8 Div. 722

Supreme Court of Alabama

June 4, 1936

Rehearing Denied June 25, 1936

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Bill for injunction by the American Bakeries Company and another against the City of Huntsville. From a decree sustaining a demurrer to the bill, complainants appeal.

Affirmed.

Sumter M. Kelley and Spalding, Sibley, Troutman & Brock, all of Atlanta, Ga., and Watts & White, of Huntsville, for appellants.

M.H Lanier and Francis Esslinger, both of Huntsville, for appellee.

KNIGHT Justice.

This is an appeal from the decree of the circuit court of Madison county, in equity, sustaining demurrers of the city of Huntsville to a bill filed by the appellants, American Bakeries Company and Carl Glenn, seeking to have declared null and void a certain license ordinance of said city, and for perpetual injunction against the enforcement of said ordinance.

On July 11, 1935, the respondent city adopted an ordinance for the licensing and taxing of certain businesses, vocations, and occupations, which so far as here pertinent reads:

"Itinerant sellers of bakery products. Any itinerant dealer, trader or seller of bread, commonly known as loaf bread or light bread, cakes, pies, rolls, doughnuts and cookies; and every itinerant dealer, trader or seller of any one or more of the commodities named above, and every agent, salesman or deliveryman for any such dealer, trader, or seller $300.00.

"Bakeries. Every bakery or seller of bakery products, baking a part or all of the bakery products offered for sale at wholesale or retail by such bakery, and having a place of business regularly open to the public during the usual business hours within the city of Huntsville, Alabama, $100.00."

The American Bakeries Company is a Georgia corporation, and the said Carl Glenn is a resident citizen of Madison county, Ala.

It appears from the averments of the bill that the American Bakeries Company had duly qualified to do business in the state of Alabama, and was engaged in the business of manufacturing and selling bakery products, and had, at the time of the filing of the bill, three manufacturing plants where its said products were made, and one of its plants is located at Gadsden, Ala. That the company for the past few years has been doing business in the city of Huntsville in the following manner: It runs its truck daily to and from its bakery at Gadsden to Huntsville, and from this truck it delivers to the said Carl Glenn, one of the complainant's agents, its bread and other bakery products, and he in turn places the products on a truck and carries them to the various places of business of retail and wholesale merchants, and sells "wholesale and delivers the bakery products from the truck to such merchants as buy said products, and in making such sales the said Glenn acts as agent of the company, which has no place of business in said city."

The complainants, the said American Bakeries Company and the said Glenn, refused to pay the license tax. That for the failure of said Glenn to procure a license, as provided for in said ordinance, he was arrested and tried in the recorder's court in said city, and is threatened with further arrest unless the said parties comply with said ordinance by paying the license tax as prescribed in said ordinance.

It is insisted by the appellants, the American Bakeries Company and the said Carl Glenn, that the ordinance is "unconstitutional, illegal, void, arbitrary, discriminatory and confiscatory"; that it violates the first section of the Fourteenth Amendment to the Constitution of the United States, and, as to the complainant Glenn, it also violates article 4, section 2, of the same instrument; that it violates sections 1, 35, and 89 of the Constitution of the state of Alabama.

In our view of the ordinance, it neither offends the above referred to provisions of the Federal Constitution nor any of the provisions of sections 1, 35, and 89 of the Constitution of Alabama.

We have uniformly held that the power to tax for revenue is essentially an attribute of sovereignty, conferred by the people, through the Constitution, on the state, and is vested in the legislative department, which it may exercise within constitutional limitations without restraint or judicial supervision. "It is enough for the courts," observed Justice Brewer, in the City of Newton v. Atchison, 31 Kan. 151, 1 P. 288, 290, 47 Am.Rep. 486, 488, "that both occupation and property are legitimate objects of taxation; that they are essentially dissimilar; that constitutional provisions regulating the taxation of one do not control that of the other; and that there are no constitutional inhibitions on the taxation of business either by the legislature directly, or by municipal corporations thereto empowered by the legislature."

By section 2154 of the Code it is expressly declared that the power conferred upon municipal corporations by the statute to license business, trades, and professions may be used in the exercise of the police power as well as for the purpose of raising revenue, one or both. The license fixed and levied may have a two-fold purpose, as often announced by this court. State v. Kartus, 230 Ala. 352, 162 So. 533, 101 A.L.R. 1336; City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43. But, of course, this power to tax, while inhering in the state, cannot be so used by the state nor by a municipal corporation so as to "embarrass and destroy useful and harmless occupations, that are essential to the prosperity of the people, and thus defeat the very purpose for which the power is conferred." Western Union Tel. Co. v. City of Decatur, 16 Ala.App. 679, 81 So. 199, 201; Id., 202 Ala. 593, 81 So. 205.

The provision of the ordinance in question applying to itinerant dealers is aimed and leveled at every person and every class who undertake to carry on the business of an itinerant dealer, trader, or seller of the products enumerated in the license schedule. In this respect there is no discrimination or inequality, but perfect equality and uniformity. Such being the case, we do not see that it conflicts in any way with the Federal Constitution. Dozier v. State, 154 Ala. 83, 46 So. 9, 129 Am.St.Rep. 51. "Equality and uniformity consist in the imposition of a like tax upon all who engage in the avocation, or who may exercise the privilege, taxed." Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627, 628, 72 Am.St.Rep. 143.

There is nothing in the ordinance imposing a license tax on itinerants (which comprehends citizens of this State as well as citizens of other states) which in the remotest degree abridges the privileges and immunities of citizens of other states in favor of any resident class. And we likewise fail to detect anything in the ordinance, in the respect under consideration, which tends to deprive any person of life, liberty, or property, without due process of law, or to deny to any person the equal protection of the law. We are not impressed that the ordinance is offensive to any provision of the Federal Constitution.

This court in the quite recent case of American Bakeries Co. v. City of Opelika, 229 Ala. 388, 157 So. 206, 208, speaking through Mr. Justice Gardner, held:

"It is well settled that a schedule of licenses may be prescribed for an itinerant

...