Donoghue v. Bunkley

• Decision Date: 28 February 1946
• Docket Number: 1 Div. 245.
• Citation: 247 Ala. 423,25 So.2d 61
• Parties: DONOGHUE et al. v. BUNKLEY et al.
• Court: Alabama Supreme Court

25 So.2d 61

247 Ala. 423

DONOGHUE et al. v. BUNKLEY et al.

1 Div. 245.

Supreme Court of Alabama

February 28, 1946

Francis H. Inge and Armbrecht, Inge, Twitty &amp Jackson, all of Mobile, for appellants.

Palmer Pillans, of Mobile (Pillans & Cowley, of Mobile, of counsel), for appellee Ennis.

Vincent F. Kilborn and Outlaw, Seale & Kilborn, all of Mobile for other appellees.

LIVINGSTON Justice.

The Circuit Court, in Equity, of Mobile County, Alabama sustained demurrers to complainants' bill of complaint seeking a declaration of rights under the Declaratory Judgments Act, Title 7, section 156 et seq., Code of 1940, in respect to the provisions of Acts numbered 517, 518 and 459, enacted by the 1945 Legislature of Alabama. The bill also prays for injunctive and general relief.

This appeal is by virtue of section 755, Title 7, Code of 1940, authorizing an appeal to this Court from a decree of a circuit court, sitting in equity, sustaining or overruling a demurrer to a bill in equity.

Act No. 517 is as follows:

'To apply in, but only in, counties which have a population of not less than 140,000 nor more than 300,000, according to the last or any subsequent Federal Census, and which counties are wet counties as defined in section 68 of Title 29 of the Alabama Code of 1940; to require such counties to hold an election for the entire county on the date of the first Constitutional Amendment Election held in the State of Alabama after the final adjournment of the regular session of the Alabama Legislature for 1945; at which such election the following question shall be submitted to the qualified voters of said county: '1. Shall a license tax of 2 cents on each twelve fluid ounces, or fractional part thereof, of malt or brewed beverages sold, distributed, delivered, stored or taken out of storage within this county be levied in this county? Yes _____. No. _____'; and to provide for the declaration of the result of such election by the probate judge of such county.

'BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

'Section 1. In all counties of this State which have a population of not less than 140,000 nor more than 300,000 according to the last or any subsequent Federal Census, and which counties are wet counties as defined in section 68 of Title 29 of the Alabama Code of 1940, the Revenue and Road Commission or other governing body of such county shall call an election in such county to be in all respects the same as a general election for the selection of members of the House of Representatives of the Legislature of Alabama, provided that in all such counties where voting machines are now authorized or required by law the same must be used, which such election shall be held on the date of the first Constitutional Amendment Election held in the State of Alabama after the final adjournment of the regular session of the Alabama Legislature for 1945.

'Section 2. At the election provided for in section 1 hereof, the following question shall be submitted to the qualified electors of such county; '1. Shall a license tax of 2 cents on each twelve fluid ounces or fractional part thereof, of malt or brewed beverages sold, distributed, delivered, stored, or taken out of storage within this county be levied within this county? Yes. _____ No. _____.'

'Section 3. In all such counties the probate judge shall, within five (5) days after the date of such election, declare the result thereof by inserting in a newspaper of general circulation published in the county a tabulation of the total votes cast in said election; the total number of votes for the proposition submitted and the total number of votes against the proposition and in the event a majority of the number of votes cast shall be in favor of the proposition the probate judge shall declare the proposition adopted and the tax therein provided for to be levied; and if the majority of the number of votes cast shall be against the proposition the probate judge shall declare the same defeated and no tax as provided therein shall be levied.

'Section 4. This Act shall become effective immediately upon its passage and approval or upon its otherwise becoming a law.

'Approved July 6, 1945.'

Analyzed briefly, Act No. 518 provided:

Title: To apply in, but only in, counties which have a population of not less than 140,000 nor more than 400,000 according to the last, or any subsequent Federal Census, and which counties are wet counties as defined in section 68, of Title 29, of the Code of Alabama of 1940; and to require the payment to such counties of a license tax, in addition to all other taxes and licenses now required by law, of 2 cents on each twelve fluid ounces, or fractional part thereof, of malt or brewed beverages sold, distributed, delivered, stored or taken out of storage within such counties; and to provide for the ascertainment, collection, payment and distribution of such license tax and for the enforcement of this Act; and to prescribe penalties and fix punishment for the violation of any of the provisions of this Act, and to fix the term of the effectiveness of the license tax levied hereunder.

Section 1 provides that the Act shall apply in counties which have a population of not less than 140,000, nor more than 400,000, according to the last or any subsequent Federal Census, and which are wet counties within the meaning of that term as defined in section 68, Title 29, Code of Alabama of 1940. The Act is made cumulative and additional to all other acts.

Section 2 is a definition section.

Section 3(a) levies a license tax to counties coming under the law of 2 cents on each twelve ounces of beer, malt or brewed beverages sold, distributed, delivered, stored or taken out of storage in the county. The license is levied on each distributor or seller (including retailers) so that a 2 cent license is levied in the hands of the wholesaler and an additional 2 cents in the hands of the retailer, with the retailer being able to exempt himself from his additional 2 cents tax by showing that he has bought from a wholesaler who paid.

(b) sets out the method in which the retail dealer may claim his exemption.

(c) provides that all who have not claimed the exemption (therefore the wholesale dealer) must file a report on or before the 30th day after the effective date of the Act on or before the 15th of every month thereafter, calculated to show the amount of tax owing from him.

(d) provides for the payment of the 2 cents license tax reflected by the report made in accordance with the provisions of section 3(c). Payment is made to the probate judge or license commissioner or inspector, whichever authority is authorized by law to receive payment in the county. Failure to pay the license is a misdemeanor. Every day's default is a separate offense and a penalty of 20% of the amount of the license attaches. All funds collected are paid by the governmental agency collecting them to the treasurer of the county. The treasurer of the county then must pay these sums to the public body corporate entrusted with the operation, management and control of the public schools of such counties subject to the tax.

Section 4 makes unlawful the selling of beer in counties under the Act by persons having no place of business in the county, without a permit from the probate judge.

Section 5 makes unlawful the engaging in business as a beer dealer, distributor or seller while in default of the payment of the license tax.

Section 6 exempts acts of interstate commerce, business of the United States or governmental agencies.

Section 7 makes it unlawful to work for a beer dealer in default.

Section 8 requires the keeping of records of purchases, sales, receipts and inventories and forbids the destruction of such records except after notice to the probate judge. Each person subject to the Act must give information if requested to the probate judge, the license inspector or where one exists, the license commissioner. This section also provides for secrecy of information obtained.

Section 9 denounces the making of false reports.

Section 10 provides that if in any county in which this Act may become operative a commissioner of licenses exists, the duties vested in the probate judge are transferred to such a license commissioner.

Section 11 provides for fines for violation of the Act, provides certain duties on the license inspector where there is one and for the furnishing of forms and for payment of the expenses for such forms.

Section 12 is what is known as the severability section.

Section 13 is worded as follows: 'This Act shall become effective immediately upon a declaration by the probate judge of such county that at a regularly and legally held referendum election the majority of the duly qualified electors voting therein voted in favor of adopting the tax levied herein, and upon this Act being made effective by the declaration of the probate judge that the majority of the qualified electors voting in such election voted in favor of adopting the tax levied herein, then this Act shall remain and continue in effect for a period of two (2) years from the date of such declaration.'

Act No. 459 provides for the allocation of funds derived from taxes collected under the provisions of Acts Nos. 517 and 518.

A copy of each of the foregoing Acts is attached to and made a part of the bill of complaint. In short, the bill alleges that complainants are distributors and sellers of beer in Mobile County, Alabama, within the meaning of said Acts; that respondent Frank Bunkley is commissioner of licenses for Mobile County, and that respondent Robert Ennis is license inspector for Mobile County, the enforcement agencies provided for in said Acts; that Mobile County, Alabama, is a 'wet...