City of Birmingham v. Merchants Cigar & Candy Co.

• Decision Date: 13 January 1938
• Docket Number: 6 Div. 160
• Citation: 178 So. 220,235 Ala. 204
• Parties: CITY OF BIRMINGHAM et al. v. MERCHANTS CIGAR & CANDY CO.
• Court: Alabama Supreme Court

178 So. 220

235 Ala. 204

CITY OF BIRMINGHAM et al. v. MERCHANTS CIGAR & CANDY CO.

6 Div. 160

Supreme Court of Alabama

January 13, 1938

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Bill in equity by Merchants Cigar & Candy Company against the City of Birmingham and individual officers thereof, to enjoin levy and collection of excessive license tax on vending machines. From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

J.H Willis, Clarence Mullins, and Harvey T. Deramus, all of Birmingham, for appellants.

Herbert R. Maulitz, of Birmingham, for appellee.

GARDNER Justice.

Schedule 154 of the General Revenue Act of 1935, Gen.Acts 1935, § 348 p. 504, fixed a schedule of license fees for vending machines, but with no restrictions on municipalities as to any license regulation. The Legislature in 1937 saw fit to amend this section, change the license schedule, and add other regulatory features here unnecessary to relate. General and Local Acts, Special Session, 1936-37, p. 32.

The title to this latter act was as follows: "To amend Schedule 154 of Article XIII, Chapter 1 of Section 348 of an Act approved July 10, 1935, entitled 'An Act to provide for the general revenue of the State of Alabama.' " Among the other changes in the original schedule, section 154 was the following proviso found in the body of the amendatory act: "Provided, further, no municipality shall be allowed to levy and collect a license for the operation of vending machines enumerated and defined in this Schedule in an amount greater than fifty (50%) percent of that levied by the State."

The city, on this appeal, insists this proviso is invalid as in contravention of section 45 of our Constitution, which requires that "each law shall contain but one subject which shall be clearly expressed in its title." It is of course not controverted that a section of the Code may be amended by reference to the section number only, and the form of the amendment of schedule 154 of the General Revenue Act of 1935 is therefore not here challenged.

As to an act original in form the subject-matter must be "allied to the subject expressed, or, as is usually said, germane and cognate to it or complementary to the idea expressed in the title." Lovejoy v. City of Montgomery, 180 Ala. 473, 61 So. 597, 599. And as to an act amendatory in form, amending a Code section, the same principle controls. As stated in our cases, "the matter of the amendatory act must be germane to, suggested by, and supplemental to the subject of the section sought to be amended." State v. Smith, 187 Ala. 411, 65 So. 942, 944.

It but remains to apply these well-settled principles to the case in hand. Counsel for the city have noted several of our cases, which they consider analogous, among them that of State v. Smith, cited above; City of Mobile v. Louisville & Nashville R.R. Co., 124 Ala. 132, 26 So. 902; State v. Southern Ry. Co., 115 Ala. 250, 22 So. 589; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358; Wood & Pritchard v. McClure, 209 Ala. 523, 96 So. 577; Kendrick v. State, 218 Ala. 277, 120 So. 142; McCoy v. Jefferson County, 232 Ala. 651, 169 So. 304. These authorities serve as striking illustrations of the force and effect of this provision of our Constitution. But it is difficult to lay down "a 'fixed and definite rule which shall clearly mark the dividing line between what is and what is not' violative of the article of our Constitution now under consideration." Lovejoy v. City of Montgomery, supra. Each case must therefore necessarily rest upon its own bottom. And the cited authorities serve as illustrations only, helpful, but only controlling when closely analogous situations are presented.

We are persuaded, however, that there is a well-recognized principle of law concerning the subject-matter of schedule 154, relating as it does to the question of taxation and the authority of the state in relation thereto, which is of controlling influence in the instant case. The Court of Appeals in City of Montgomery v. Royal Exchange Assur. Corporation, 5 Ala.App. 318, 59 So. 508, 511, had under consideration the General Revenue Act wherein was a similar limitation of taxation by a municipality as is here presented, and made the following pertinent observation: "And under this view we hold that it was clearly competent for the Legislature, as has long been its custom, in providing for taxes for the state revenue, at the same time and in the same law, to prescribe and limit taxes against the same subjects of taxation by any of the branches of the state government intrusted with the power of levying taxes, such as counties, cities, and towns. The above power is a necessary function of the supreme government. It is its business to adjust all of the burdens of taxation on and against property and persons and privileges; and this...