City of Albertville v. Scott, 8 Div. 889

• Decision Date: 26 June 1958
• Docket Number: 8 Div. 889
• Citation: 104 So.2d 921,268 Ala. 172
• Parties: CITY OF ALBERTVILLE v. Jack SCOTT et al.
• Court: Alabama Supreme Court

Page 921

104 So.2d 921

268 Ala. 172

CITY OF ALBERTVILLE v. Jack SCOTT et al.

8 Div. 889.

Supreme Court of Alabama.

June 26, 1958.

Rehearing Denied Sept. 25, 1958.

Walter I. Barnes, Gadsden, for appellant.

Marion F. Lusk, Guntersville, for appellees.

STAKELY, Justice.

On May 16, 1956, the cross-appellants filed their bill in the Circuit Court of Marshall County for a declaratory judgment against the City of Albertville, a corporation, appellant here. The bill alleges that plaintiffs were and for two years prior to April 20, 1956, had been engaged in business outside the corporate limits of the City of Albertville but within its police jurisdiction; that their business, severally, was retailing gasoline, groceries, soft drinks, and cigarettes; that defendant's Ordinance No. 93 imposed upon each seller of gasoline having his place of business wholly within the police jurisdiction a license tax of one-half cent per gallon on each and every gallon of gasoline sold and delivered; that Section 11 of said ordinance was as follows:

'Section 11. The total revenue derived from the above ordinance shall be used exclusively for street improvements and fire protection for the said Town of Albertville, Alabama.'

The bill further alleges that for two years prior to April 20, 1956, the City of Albertville had collected from plaintiffs taxes under this ordinance; that on April 20, 1956, plaintiffs had filed with defendant their several petitions for refund, which petitions had been denied; that on May 8, 1956, said Section 11 of Ordinance 93 was repealed; that defendant had notified plaintiffs it intended to enforce the ordinance as thus amended, and was doing so.

The bill further alleges that defendant by its Ordinance No. 224 had levied and was threatening to collect from plaintiffs license taxes for engaging in the several businesses of retailing gasoline, groceries, soft drinks, and cigarettes, in said police jurisdiction. The bill further alleges that defendant had by Ordinance No. 232 imposed an additional license tax on persons selling cigarettes within said police jurisdiction in the amount of one cent on each twenty cigarettes; that Section 6 1/2 of said ordinance prior to May 8, 1956, had been as follows:

'Section 6 1/2. That this tax, collected, or to be collected, under Ordinance No. 232 within the corporate limits of said City is to be used for the purpose of building, constructing, and promoting parks and recreation, and for no other purpose; and that this tax, collected, or to be collected, under Ordinance No. 232, outside of the City limits of said City, and within the police jurisdiction, thereof, is to be used for the purpose of the protection of the lives, health, and property of the citizens, the maintenance of good order and quiet of the community, and the preservation of public morals in said police jurisdiction, and is to be used for no other purpose.'

The bill alleges that on May 8, 1956, the defendant had amended said ordinance by making Section 6 1/2 read as follows:

'Section 6 1/2. That this tax, collected, or to be collected under Ordinance No. 232 within the corporate limits of said City is to be used for the purpose of building, constructing, and promoting parks and recreation, and for no other purpose; and that this tax, collected, or to be collected, under Ordinance No. 232, outside of the City limits of said City, and within the police jurisdiction thereof, is to be used for the purpose of the protection of the lives, health, and property of the citizens, and the maintenance of good order and quiet of the community, and the preservation of public morals, and it is to be used for no other purpose.'

And the bill alleges that the City of Albertville was likewise threatening to enforce this ordinance as thus amended against the plaintiffs. The bill then alleges as follows:

'Twelve: That said defendant in levying the 'gasoline tax' in said Ordinance No. 93 in its original form and as amended, and in levying the 'license schedule tax' in Ordinance No. 224, and in levying the 'cigarette tax' in Ordinance No. 232 in its original form and as amended, did so for the purpose of raising general revenue and did not fix the amount of the levy so as to reflect a reasonable compensation for the expense of municipal supervision over the particular businesses of these plaintiffs at the several places where they were operating them; that in each instance the defendant in fixing the amount of the exaction did not anticipate the amount to be needed for police, fire and sanitation and other supervision, including use of its facilities, both within the city and within the police jurisdiction, nor did it then allocate a reasonable amount of that for the police jurisdiction, nor did it then estimate the proper proportionate amount of what should be chargeable to the various businesses in the police jurisdiction, subject to such exaction, so that each such business thus licensed would as nearly as possible pay an amount properly chargeable to its supervision and police protection so as to make all of such exactions when totalled approximately cover the amount of the defendant's expense for such services in said police jurisdiction; that said fees and rates were arbitrarily fixed.'

The bill then prayed for a declaration that defendant had no right to enforce any of these ordinances as against plaintiffs, and that defendant be required to refund the gasoline taxes collected. There was an offer to do equity and a prayer for general relief.

The answer of the City admitted the ordinances and defendant's purpose to enforce them within three miles of the City limits, defendant having a population of over six thousand.

The cause was submitted for final decree upon the pleadings, testimony adduced by the plaintiffs and a stipulation as to certain facts. The court entered a decree declaring Ordinance No. 93 invalid and requiring defendant to refund the gasoline taxes that were paid from April 20, 1954, to May 8, 1956, with interest at four percent from April 20, 1956, and 'interest' on items collected by it after May 16, 1956. The decree further provides:

'That relief under Ordinances 224 and 232 be and the same is denied as not being reasonable as now enacted.'

From this decree the defendant appealed and assigned several errors. Plaintiffs have cross-assigned errors as follows:

'1. The court erred in not decreeing that plaintiffs in recovering from defendant the amounts collected by it from them under Ordinance No. 93 during the period from April 20, 1954 to April 20, 1956, should also recover interest at six percent from April 20, 1956.

'2. The court erred in not decreeing that plaintiffs in recovering from defendant any other sums collected by it from them under Ordinance No. 93 after April 20, 1956,...