Bellingrath v. Town of Georgiana

• Decision Date: 02 April 1929
• Docket Number: 3 Div. 609.
• Citation: 23 Ala.App. 111,121 So. 458
• Parties: BELLINGRATH ET AL. v. TOWN OF GEORGIANA ET AL.
• Court: Alabama Court of Appeals

121 So. 458

23 Ala.App. 111

BELLINGRATH ET AL. v. TOWN OF GEORGIANA ET AL.

3 Div. 609.

Court of Appeals of Alabama

April 2, 1929

Appeal from Circuit Court, Butler County; A. E. Gamble, Judge.

Action by W. A. Bellingrath and another, partners doing business as the Coca-Cola Bottling Company, against the Town of Georgiana and the Mayor thereof, to recover a license tax paid under protest. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Steiner Crum & Weil, of Montgomery, for appellants.

Powell & Hamilton, of Greenville, for appellees.

SAMFORD J.

The town of Georgiana, by ordinance regularly adopted and applicable to the year 1925, fixed a license of $50 for "wholesale deliveries by trucks for soft drink manufacturers, bottlers, etc." The plaintiff is a wholesale manufacturer, and during the time covered by the ordinance made wholesale deliveries of soft drinks to parties within the corporation limits of Georgiana. The trucks were owned by plaintiff, and for each it had paid the license as prescribed by law.

Taking the case of Williams v. City of Albany, 216 Ala 408, 113 So. 257, as a guide, it seems clear that the town of Georgiana is not authorized to levy a license tax upon plaintiffs' truck. But that, as we take it, is not contemplated by the ordinance.

The ordinance undertakes to levy a license upon the business of persons making wholesale deliveries by truck for soft drink manufacturers, bottlers, etc. Construing the ordinance strictly against the town, as we must do, if the deliveries are made by train, wagon, buggy, touring car, or otherwise or if the deliveries are being made for and on behalf of a wholesale dealer, jobber, or other person, not a manufacturer or bottler, the ordinance does not apply, and no license is required. License taxes must bear equally and uniformly upon all persons engaged in the same class of business or occupation or exercising the same privileges. The class here sought to be taxed is soft drink manufacturers, bottlers etc., and those who act for them, and the license is required for making wholesale deliveries of any commodity. This is an unwarranted discrimination, and for that reason the ordinance is void. 37 Corpus Juris, 200 (53); Ala. Con. Coal & Iron Co., 177 Ala. 248, 59 So. 305; Mefford v. Sheffield, 148 Ala. 539, 41 So. 970. The ordinance is void.

The judgment is reversed, and the cause is remanded.

Reversed and...