Browne v. City of Mobile

• Decision Date: 01 February 1899
• Citation: 122 Ala. 159,25 So. 223
• Parties: BROWNE v. CITY OF MOBILE.
• Court: Alabama Supreme Court

25 So. 223

122 Ala. 159

BROWNE v. CITY OF MOBILE.

Supreme Court of Alabama

February 1, 1899

Appeal from city court of Mobile; O. J. Semmes, Judge.

Action by the city of Mobile against W. F. Browne. From a judgment for plaintiff, defendant appeals. Affirmed.

In the complaint the plaintiff claimed of the defendant the sum of $10 as a penalty for the violation of an ordinance of the city of Mobile. The ordinance which was alleged to have been filed was set out in the complaint, and was an ordinance to fix the rate of licenses for the year commencing March 15 1897. Section 1 required each person, firm, association, or corporation trading or carrying on any business, trade, or profession, by agents or otherwise, within the limits of the city of Mobile, to pay a license as in said ordinance fixed. Sections 2 and 7, applicable to the business of the defendant, and which were also set out in the complaint, were as follows: "Sec. 2. Drays, wagons, and vehicles used in the transportation of goods and merchandise, and vehicles used for hire at the public stands,-$7.50." "Sec 7. Be it further ordained, that each and every license in this ordinance declared is due and payable on the seventeenth day of March, 1897, and the tax collector will proceed to collect the same. Whenever any person shall fail or refuse after publication of this ordinance, to obtain a license under the provisions of the same, he shall be fined in such sum as the recorder may impose, not exceeding fifty dollars nor less than five dollars, for each day's failure to obtain such license." After setting out these sections of the ordinance, the complaint alleges that said ordinance was published in the Mobile Daily Register, a newspaper of the city of Mobile, on March 18, 1897. The complaint further alleges that on the 3d day of May, 1897, and also within 30 days of said May 3, 1897, said defendant, W. F. Browne violated said ordinance by using a vehicle upon the streets of the city of Mobile for the transportation of goods and merchandise, without procuring a license therefor, as required by said ordinance. Complaint also alleges that for the violation of said ordinance by said defendant the recorder of said city, on the 5th day of May, 1897, duly and lawfully imposed on said defendant a fine of $10, whereby the defendant became and is liable to pay the said sum of $10. To this complaint the defendant demurred upon the following grounds: "First. The act of the General Assembly creating the office of recorder of the city of Mobile is unconstitutional, illegal, and void, because (1) said act, by its terms, disqualifies and excludes from eligibility to said office of recorder all citizens and qualified electors of the state of Alabama residing in the city of Mobile, except practicing attorneys; (2) said act denies to the citizens and qualified electors of the state of Alabama residing in the city of Mobile equal civil and political rights; and (3) said act prescribes and makes an educational qualification for said office of recorder of the city of Mobile. Second. For further cause of demurrer defendant says that the ordinance of the city of Mobile set out in said complaint is illegal, unauthorized, and void. Third. For further cause of demurrer defendant says: (1) Said complaint fails to allege that the defendant was engaged in carrying on the business of using a vehicle upon the streets of the city of Mobile for the transportation of goods, wares, and merchandise without procuring a license therefor, as required by said ordinance. (2) Said complaint fails to allege that defendant was engaged in using said vehicle in the transportation of goods, wares, and merchandise for profit, or with the purpose to derive a profit therefrom." Upon consideration of the demurrers to the complaint, the court overruled the first and second causes of demurrer, and sustained the third. Thereupon the plaintiff filed an amended complaint which was substantially the same as the original complaint, except that it alleged more fully that the defendant, Browne, violated the ordinance in question "by using a vehicle upon the streets of the city of Mobile for the transportation of goods and merchandise, and which said vehicle was kept and used by said W. F. Browne in the business of transporting goods and merchandise, without procuring a license therefor as required by said ordinance." To the amended complaint the defendant demurred upon the following ground: "First. Said amended complaint fails to allege that defendant was engaged in carrying on the business of using a vehicle upon the streets of the city of Mobile in the transportation of goods, wares, and merchandise, without procuring a license therefor, as required by said ordinance." This demurrer was overruled.

The cause was tried upon the following facts, which were agreed to by the parties: "The defendant is engaged in the business of selling butter in the city of Mobile, and has paid to said city a license tax of $15 for the privilege of doing said business in said city; said license being paid under the license ordinance of said city adopted by the general council, and approved by the mayor on the 17th day...