City of Bessemer v. Bessemer Theatres
| Decision Date | 31 March 1949 |
| Docket Number | 6 Div. 796. |
| Citation | 39 So.2d 658,252 Ala. 117 |
| Parties | CITY OF BESSEMBER v. BESSEMER THEATRES, Inc. |
| Court | Alabama Supreme Court |
Edw L. Ball, of Bessemer, for appellant.
Francis H. Hare, of Birmingham, for appellee.
Bessemer Theatres, Incorporated filed its bill, in equity, for a declaratory judgment against the City of Bessemer, a municipal corporation. The court overruled the demurrer to the bill. Hence this appeal.
The bill in substance shows the following. The complainant is a corporation organized under the laws of the State of Delaware and is the owner of the Grand Theatre and the State Theatre which are moving picture theatres in the City of Bessemer. On November 4, 1941, the City of Bessemer adopted an ordinance No. 883, section 2 of which levied a license tax on every person who conducts or operates a place of amusement within the corporate limits of the city, the tax being fixed and levied in the following amounts: (a) one cent on each charge for admission of more than ten cents and less than and including fifteen cents; (b) two cents on each charge for admission in amount in excess of fifteen cents. Ordinance No. 883 does not purport to apply to any other class of taxpayers except persons who conduct or operate places of amusement as therein defined and the complainant has paid, pursuant to the ordinance, taxes based on the rates prescribed in the ordinance.
It is alleged that ordinance No. 883 deprives complainant of its property without due process of law, denies to complainant equality under the law and the equal protection of the law and denies to it the right to a uniform operation of the law and is void and unlawful and further that it grossly and unlawfully discriminates against complainant and all other persons engaged in business of conducting places of amusement within the corporate limits of the city and in favor of each and every other person engaged in conducting each, all and every other class or classes of business in the City of Bessemer and is in violation of the Constitution of the United States and more particularly the Fourteenth Amendment thereof. It is further alleged that the ordinance is invalid in that it is unreasonable.
The bill further alleges that during the tax years of 1945 and 1946 there were other businesses, as well as the picture show business, which were also taxed in various amounts under the general license code of the City of Bessemer The bill mentions the Tennessee Coal, Iron and R. R. Co., the Pullman Standard Car Company and an unnamed wholesale and retail hardware business and alleges that not withstanding the aforesaid concerns enjoy gross annual receipts far in excess of those receipts received by the complainant, the complainant's business was taxed by virtue of the ordinance No. 883 in an amount far in excess of the tax levied under the provisions of the license code on the aforesaid named and other concerns.
It is alleged that 'there was and is a justiciable controversy between complainant and respondent with respect to the claim and assertion of respondent that said tax or license ordinances are both valid, effective and enforceable and the claim and assertion of the complainant as herein set forth to the contrary.' It is further alleged that the complainant desires and is entitled to a declaratory decree determining and declaring its statute, rights, duty and relations with the respondent depending upon whether or not said tax ordinance is valid and enforceable.
The demurrers to the bill raise the proposition that the bill fails to allege sufficient facts to constitute an arbitrary classification as relates to the complainant; that the bill contains no facts which show that the complainant has been discriminated against as a member of the class in which complainant falls for tax purposes and that the bill does not show that respondent has made an unreasonable, capricious or arbitrary classification as affects the complainant.
There is no doubt that the bill shows such an actual controversy as to support the jurisdiction of the court for a declaratory judgment. Title 7, § 156 et seq., Code of 1940; City of Birmingham v. Allen, Ala.Sup., 36 So.2d 297. However, it is not always appropriate to make a construction or determination of rights or status on a demurrer to a bill seeking a declaratory judgment. Danied T. McCall v. J. R. Nettles et al., Ala.Sup., 37 So.2d 635; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11. Ordinarily where the bill for a declaratory judgment shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. As pointed out in Alabama State Milk Control Board v. Graham, supra, the test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. It was further pointed out that if the complaint states the substance of a bona fide justiciable controversy which should be settled, a cause of action for a declaratory judgment is stated and the demurrers should be overruled. It seems to us that this is a case which should not be decided on demurrer except to the point of holding that the bill states a bona fide justiciable controversy which should be settled.
There appears to be no doubt that municipal authorities have the power to require licenses of those engaged in the amusement business. Section 751, Title 37, Code of 1940, confers this authority in the following language. 'Any city or town shall have the power to license, tax, regulate, restrain, or prohibit theatrical and other amusements, billiard and pool tables, nine or tenpin alleys, box or ball alleys, shooting galleries, theatres, parks and other places of amusement, when in the opinion of the council the public good or safety demands it, * * *.'
It was stated in City of Birmingham v. Leo A. Seltzer Inc., 229 Ala. 675, 159 So. 203, 205, in referring to the foregoing statute, that the 'statute has used...
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