City of Mobile v. Richards

• Decision Date: 05 April 1893
• Citation: 12 So. 793,98 Ala. 594
• Parties: CITY OF MOBILE v. RICHARDS ET AL.
• Court: Alabama Supreme Court

12 So. 793

98 Ala. 594

CITY OF MOBILE v. RICHARDS ET AL.

Supreme Court of Alabama

April 5, 1893

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

Action by the city of Mobile against S. Richards & Sons. There was a judgment for defendants, and plaintiff appeals. Reversed.

This was a suit by the city of Mobile to recover from defendants below the amount of a penalty imposed by the mayor for a failure to pay a special license tax laid by an ordinance of the city on all who engaged in the business of selling liquor by the wholesale within its limits. Besides the general issue, two special pleas, amounting in substance to the same were interposed by defendants, setting up certain facts on which they based their claim to immunity from said license tax. To these pleas, demurrers were filed, which the court below overruled. It was then agreed that the facts set forth in said pleas were true, and on those facts the court entered judgment for defendants. In these pleas defendants say that besides the special license tax imposed by the said ordinance on specified businesses and pursuits, including wholesale liquor dealers, it (said ordinance) also imposed a general license upon every pursuit, business, or trade not specially provided for in the "foregoing enumeration;" that defendants obtained, under said last-named clause, a license for the year to do business as wholesale grocers; that they engaged in the business of selling liquor at wholesale, not as a separate and distinct business by itself, but as a part of and in connection with their business as wholesale grocers, and hence that the city could not lawfully demand of them the license tax imposed by the same ordinance on wholesale liquor dealers. Defendants further say that by the present charter of the city of Mobile, the license tax authorized to be laid shall not exceed 75 per cent. of the amount fixed for license by the last ordinance on this subject, enacted by the mayor, aldermen, and common council of the city; that by said former ordinance no license tax was imposed on wholesale liquor dealers, but was imposed upon wholesale grocers; that under said former ordinance, while in force, they took out a license as wholesale grocers, and thereunder sold liquor at wholesale without taking out any special or additional license therefor; that the amount paid under the present ordinance for a license to do business as wholesale grocers is equal to 75 per cent. of the amount fixed by the "former ordinance" on wholesale grocers. The demurrers interposed to the pleas raise the question of the sufficiency of the defenses set up.

Pillans Torrey & Hanow, for appellant.

Hannis Taylor, for appellees.

HEAD J.

In view of the principle that the power of a municipal corporation to tax must be clearly and unequivocally conferred by the state and that all doubts whether the power has been conferred, in a given instance, must be resolved against the municipality we perceive the force of the argument that the act to create the port of Mobile, approved December 10, 1886, (Acts 1886-87, p. 224,) which, while in general terms authorizing the general council to impose license taxes upon all businesses, trades, and professions carried on in the city, yet further provides...