City of Prichard v. Harold

• Decision Date: 10 May 1938
• Docket Number: 1 Div. 282.
• Citation: 186 So. 499,28 Ala.App. 235
• Parties: CITY OF PRICHARD v HAROLD.
• Court: Alabama Court of Appeals

186 So. 499

28 Ala.App. 235

CITY OF PRICHARD v HAROLD.

1 Div. 282.

Court of Appeals of Alabama

May 10, 1938

Rehearing Denied June 7, 1938.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action by R. M. Harold against the City of Prichard to recover license taxes paid under an alleged invalid ordinance. From a judgment for plaintiff, defendant appeals.

Reversed rendered, and remanded.

Certiorari denied by Supreme Court in City of Prichard v Harold (1 Div. 14) 186 So. 504.

George Sossaman, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

RICE Judge.

On January 16, 1934, the city of Prichard adopted an ordinance containing, pertinently here, the following, to wit:

"Section 2. A monthly license tax is hereby imposed, levied, and assessed upon every person who shall engage within the corporate limits of Prichard, Alabama in the business of selling gasoline to consumers or users thereof, and said license tax is hereby fixed in a sum equal to one (1¢) cent per gallon for each and every gallon of gasoline sold in the city of Prichard during the preceding month by such person to a consumer or consumers of gasoline."

On the same day it adopted another ordinance parts of which we quote, to wit:

"Ordinance Number 327.

"To impose a license tax on the business of engaging outside of the corporate limits of the city of Prichard, but within the police jurisdiction thereof, in the sale of gasoline to consumers, and to impose a license tax on the business of operating in said area curb or drive-in filling stations where gasoline is sold at retail.

"Be it ordained by the Council of the City of Prichard, Alabama, as follows, to wit:

"Section 1. As used in this ordinance, the term 'gasoline' shall include gasoline or any substitute therefor, and naptha and other motor fuels commonly used in internal combustion engines, but it shall exclude kerosene. The word 'Person' shall include every person, individual, partnership, company, agency, firm, association, or corporation. The purpose of this ordinance is to license for police and fire protection only and not for revenue.

"Section 2. A monthly license is hereby imposed, levied and assessed upon every person who shall engage outside of the corporate limits of the City of Prichard, but within the police jurisdiction of said City, in the business of selling gasoline to consumers or users thereof, and said license tax is hereby fixed in a sum equal to one half of one cent per gallon for each and every gallon of gasoline sold in said area during the preceding month by such person to a consumer or consumers of gasoline.

"Section 3. On or before the 10th day of January 1934, and on or before the 10th day of each and every month thereafter, every person who may be engaged outside of the corporate limits of the City of Prichard, but within the police jurisdiction thereof, in the business of selling gasoline to consumers, shall be and they are hereby required to file in the office of the License Officer, or City Clerk, of the City of Prichard a sworn statement showing the number of gallons of gasoline sold within said area by such person to consumers or users of gasoline during the preceding calendar month, and every such person shall, on or before the 10th day of each month, pay to the City of Prichard the monthly license hereby imposed, levied and assessed. The said license shall be and become delinquent if not paid on or before the 10th day of the month.

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"Section 5. In addition to the license hereinabove fixed, each person desiring to operate, outside of the corporate limits of the City of Prichard, but within the police jurisdiction thereof, a curb or drive-in filling station where gasoline is sold at retail through pumps, shall take out and pay for said privilege and annual license equivalent to $3.75 for one pump used at such a filling station, and $2.50 for each additional pump used thereat, and the annual license fixed and prescribed by this section shall become due on the fifth day of January of each year, and delinquent on and after the 10th day of January. The purpose of this section and ordinance is to license for police and fire protection only and not for revenue.

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"Section 8. If any person pays the license prescribed by Section 2 of the ordinance this day adopted, entitled, 'An ordinance to impose a license tax on the business of selling gasoline to consumers, and to impose a license tax on the business of operating curb or drive-in filling stations where gasoline is sold at Retail,' for engaging within the corporate limits of the City of Prichard in the business of selling gasoline to consumers or users thereof, no additional license shall be imposed by Section 2 of this present ordinance upon such person for transacting the same business outside the corporate limits and within the police jurisdiction of the City.

"Section 9. Where the place of business of a person against whom a license tax is imposed by Section 2 and/or Section 5 hereof is or shall be within the police jurisdiction of City of Mobile or any other city, then no license tax so imposed by said sections shall be charged or collected by the City of Prichard unless such place is closer or closest to the nearest point on the boundary line of City of Prichard than it is to the nearest point on the boundary line of City of Mobile or other city.

"Section 10. Any person liable therefor, who shall after the 10th day of any calendar month, engage during that month, outside the corporate limits of the City of Prichard but within the police jurisdiction thereof, in the business of selling gasoline to consumers or users thereof, without having paid the monthly license fixed and prescribed by this ordinance, shall be guilty of an offense against the City of Prichard, and shall upon conviction be fined not less than $1.00 nor more than $100.00 and may also be sentenced to imprisonment for not exceeding six months, and each day shall constitute a separate offense.

"Section 11. Any person who shall fail or refuse to furnish the sworn statement required hereby, or who shall give any false statement in relation to the amount of gasoline sold within the police jurisdiction of the City of Prichard, outside the corporate limits thereof, by such person to consumers or users of gasoline during the preceding month, shall be guilty of an offense against the City of Prichard, and shall upon conviction be fined not less than $1.00 nor more than $100.00 and may also be sentenced to imprisonment for not exceeding six months.

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"Section 15. None of the provisions of this ordinance shall apply to any sales which constitute interstate commerce, and no person shall be required to pay any license based upon any sales which constitute or constituted interstate commerce.

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"Section 17. This ordinance shall be and become effective on and after its adoption and publication as required by law."

Appellee sued appellant for a refund of moneys paid by him to it under the provisions of the ordinance last quoted from --he operating a filling station, dispensing, among other things, gasoline, outside the corporate limits but within the police jurisdiction of said city.

The sole material question involved is the constitutional validity of the ordinance under which he made the payments.

It is conceded that the ordinance is "externally valid"--meaning by that that there is no question raised as to its proper adoption, promulgation, etc.

The attack on the ordinance is on the ground that it is one for the purpose of raising revenue (not permissible, as will appear) rather than one for police regulation etc.

As has been succinctly said for our Supreme Court by Mr. Justice Brown:

"It is well settled that the power of the Legislature, except as restrained by the Constitution, is supreme in the enactment of statutory law and in the creation of subordinate governmental agencies, and in prescribing their powers and duties (State ex rel. Brooks v. Gullatt et al., 210 Ala. 452, 98 So. 373); that the Legislature may authorize a municipal corporation, under the police power, to regulate and license businesses carried on within a prescribed reasonable limit outside of its corporate limits, and require the payment of such sum for such license as is reasonably necessary for 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 (Van Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85; Standard Chemical & Oil Co. v. City of Troy, 201 Ala. 89, 77 So. 383, L.R.A.1918C, 522; 37 C.J. 181, § 23).

"But 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...