City of Tuscaloosa v. Holczstein

Decision Date13 November 1902
PartiesMAYOR, ETC., OF TUSCALOOSA v. HOLCZSTEIN.
CourtAlabama Supreme Court

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

A Holczstein was tried for violation of an ordinance of the city of Tuscaloosa. From a judgment for defendant, the mayor and aldermen appeal. Affirmed.

Vaude Graaff & Verner, for appellants.

Foster & Oliver, for appellee.

McCLELLAN C.J.

The mayor and aldermen of Tuscaloosa are authorized by the charter of that city "to levy and collect annually a tax on and to regulate and license the persons, businesses vocations and privileges" therein mentioned, to wit "* * * millinery establishments; * * * each person or firm engaged in merchandising or carrying on any business of a mercantile character," etc. The mayor and aldermen of the city, in attempting to exercise the power thus conferred, passed an ordinance levying license taxes upon a great number of persons, businesses, occupations and privileges, and among the rest, the following:

"Art. 87. Millinery establishments not paying merchants' tax, $10.00.
"Art. 88. Merchants selling millinery, in addition to merchants' license, $7.50.
"Art. 89. Merchants, each person, or persons, or firm engaged in merchandising or carrying on any business of a mercantile character whose gross amount of sales are less than ten thousand dollars per annum, $10.00.
"Art. 90. Merchants whose gross amount of sales exceed ten thousand dollars and less than twenty thousand dollars per annum, $15.00.
"Art. 91. Merchants whose gross sales exceed twenty thousand dollars per annum, $20.00."

The appellee, Holczstein, was, during the year 1901, engaged in a mercantile business, selling dry goods and clothing, and also as a part of his stock kept and sold a cheaper grade of ladies' hats; also sold laces, ribbons, and artificial flowers; but he did not trim or make any hats. A license was paid for and issued to him for the year 1901 for engaging in the business of merchandising, or being a merchant, but he did not take out or pay for the milliner's license prescribed by article 87 of the ordinance quoted above, nor the license required by article 88 of said ordinance. He was proceeded against by the city authorities for selling millinery without having taken out and paid for the license required by article 88 of the ordinance, and tried before the mayor, and convicted. From that conviction he appealed to the circuit court, where upon a trial before the circuit judge without a jury he was discharged, the trial judge holding that article 88 of said ordinance is invalid. And that is the question presented for our consideration on this appeal prosecuted by the mayor and aldermen from the judgment of the circuit court.

It seems to us that the legislature itself, in conferring the power of license taxation on the municipality of Tuscaloosa took and made a clear distinction between the "millinery establishments" and the business of merchandising or carrying on "a business of a mercantile character," for the purposes of the licensing and taxation authorized. It is, it seems to us, as if the lawmakers had said, in terms, "a millinery establishment is one thing, and merchandising is another and different thing, within the purview and meaning of this act." As an abstract proposition, it would not be inapt to say that a milliner is a merchant, or a person engaged in carrying on a business of a mercantile character. But there is in point of fact a difference between an ordinary mercantile business and the business of a milliner. The merchant only deals in commodities, buying and selling. The things he buys, those things he sells in the same condition in which he bought. The milliner doubtless...

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13 cases
  • Republic Iron & Steel Co. v. State
    • United States
    • Supreme Court of Alabama
    • June 5, 1920
    ...Craft, 94 Ala. 156, 10 So. 534; Mobile v. Richards, 98 Ala. 594, 12 So. 793, explained and reaffirmed in the case of Tuscaloosa v. Holczstein, 134 Ala. 636, 32 So. 1007. judgment of the circuit court is affirmed. Affirmed. All the Justices concur. ...
  • Singer Sewing Machine Company v. Robert Brickell
    • United States
    • United States Supreme Court
    • April 6, 1914
    ...cases cited from the state courts lend no support to appellant's argument. Mobile v. Craft, 94 Ala. 156, 10 So. 534; Tuscaloosa v. Holczstein, 134 Ala. 636, 32 So. 1007, and Gambill v. Endrich Bros. 143 Ala. 506, 39 So. 297, involved the construction of certain municipal charters and the po......
  • Am. Tobacco Co v. City Of Danville
    • United States
    • Supreme Court of Virginia
    • June 12, 1919
    ...conduct a secondhand store, a city has no right to require a separate license for each article in which the store dealt. In Tuscaloosa v. Holczstein, 134 Ala. 636, 32 South. 1007, it is held, where the charter authorized the licensing of milliners and also any person or firm engaged in merc......
  • Dunning v. Town of Thomasville
    • United States
    • Alabama Court of Appeals
    • April 17, 1917
    ...... case on this ground. Griel Bros. Co. v. [16 Ala.App. 71] City of Montgomery, 182 Ala. 291,. [75 So. 277] City of Anniston v. South. Ry. Co., 112 Ala. 557, 20 ...Gambrill v. Endrich Bros. et. al., 143 Ala. 506, 39 So. 297; Mayor of Tuscaloosa. v. Holczstein, 134 Ala. 636, 30 So. 1007. It follows. that the person that owned an oil mill was ......
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