City of Birmingham v. Wilson, 6 Div. 975

• Decision Date: 27 October 1936
• Docket Number: 6 Div. 975
• Citation: 172 So. 292,27 Ala.App. 288
• Parties: CITY OF BIRMINGHAM v. WILSON.
• Court: Alabama Court of Appeals

172 So. 292

27 Ala.App. 288

CITY OF BIRMINGHAM v. WILSON.

6 Div. 975

Court of Appeals of Alabama

October 27, 1936

Rehearing Denied Dec. 15, 1936

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Prosecution by the City of Birmingham against P.N. Wilson. From a judgment for defendant, plaintiff appeals.

Reversed rendered and remanded.

Certiorari denied by Supreme Court in City of Birmingham v Wilson (6 Div. 66) 172 So. 295.

W.J. Wynn and John S. Foster, both of Birmingham, for appellant.

Horace C. Wilkinson and Thos. E. Skinner, both of Birmingham, for appellee.

RICE Judge.

This is an appeal from a judgment in appellee's favor (acquitting and discharging him) upon a trial before the court sitting without a jury, under a complaint filed in the circuit court by appellant (the allegations of which complaint appellee admits to be true), in the following language, to wit: "Comes the City of Birmingham, Alabama, a municipal corporation, and complains that P.N. Wilson, within twelve months before the beginning of this prosecution, did engage in the business of selling gasoline at retail outside the corporate limits of the City of Birmingham, Alabama, but within the police jurisdiction thereof, without first having procured a license to engage in such business, contrary to and in violation of Section 1, Subsection 137, and Section 5, of the License Code of the City of Birmingham, Alabama, for the year 1934."

The case was tried upon an "agreed statement of facts," and the said "agreed statement of facts" has been incorporated in a bill of exceptions which is before us. It would seem that the proper procedure has been followed to present for our decision the question as to the correctness of the single ruling assigned and argued for error, viz., that discharging appellee under the law and evidence. Code Supp.1936 (Michie) § 6095; Jerrell v. Equitable Life Assur. Soc., et al., 222 Ala. 687, 134 So. 132.

Here, as in the case of White v. City of Decatur, 225 Ala. 646, 144 So. 873, 874, the city (appellant, here) contends that the authority for the levy as against appellee is found in the provisions of "General Act No. 580 (Gen.Acts 1927, p. 674), entitled "An Act to authorize all cities and towns within the State of Alabama to fix and collect licenses for any business, trade or profession done outside the corporate limits but within the police jurisdiction thereof," approved September 6, 1927 (as amended, but not in the respect here material, we add, by the Act of the Legislature of Alabama approved Nov. 9, 1932, Gen.Acts Ala. 1932, Ex.Sess., p. 240).

The act referred to has tacitly, if not expressly, been held by our Supreme Court to be a constitutional enactment. White v. City of Decatur, supra; City of Dothan v. Alabama Power Co., 229 Ala. 146, 155 So. 697. Therefore, we hold that said act is not in contravention of any constitutional provision. Code 1923, § 7318.

True, as pointed out in the opinion in the case of White v. City of Decatur, supra, "the Legislature is without authority to authorize the levy of a tax for revenue on businesses or occupations not carried on within the corporate limits, as this would amount to taxation without representation and the taking of private property without due process of law, and for uses not authorized by the Constitution." (Italics ours.)

And if it be shown that the license, for the failure to pay which appellee is being prosecuted in this proceeding, is one imposed solely for the purpose of raising revenue, it follows that the ordinance levying same is an unconstitutional enactment, and the judgment of the lower court acquitting and discharging appellee is due to be affirmed. But the law seems to be that, as here, "in the case of useful trades and employments, and a fortiori in other cases, *** as an exercise of police power merely, the amount exacted for a license, though designed for regulation and not for revenue, is not to be confined to the expense of issuing it; but that a reasonable compensation may be charged for the additional expense of municipal supervision over the particular business or vocation, at the place where it is licensed. For this purpose, the services of officers may be required, and incidental expenses may be otherwise incurred in the faithful enforcement of such police inspection or superintendence." Van Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85. And in the opinion in this same Van Hook v. City of Selma Case the court said: "Very certain it is, that the courts ought not to scrutinize the amount of the license too narrowly, with the view of adjudging it a tax, where it does not appear to be unreasonable in amount as a mere regulation."

In the instant case the license imposed upon appellee appears to be in exact accord with the terms of the Act of the Legislature approved September 6, 1927 (Gen.Acts Ala.1927, p. 674), or with it as amended November 9, 1932 (Gen.Acts Ala.1932 Ex.Sess., p. 240). To be sure "the right here [there] conferred is, to regulate and license for police purposes merely; and the power to license for the purpose of revenue is not to be inferred." Van Hook v. City of Selma, su...