Dunning v. Town of Thomasville
| Decision Date | 17 April 1917 |
| Docket Number | 1 Div. 236 |
| Parties | DUNNING v. TOWN OF THOMASVILLE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.
Suit by the Town of Thomasville against R.G. Dunning. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Thomas W. Davis, of Thomasville, for appellant.
Jesse V. Boyles, of Thomasville, for appellee.
The municipality of the town of Thomasville instituted suit in the circuit court of Clarke county, seeking to recover from the appellant the sum of $125, which sum was alleged to have been due for the engaging in the business of buying cotton seed during one-half of the year 1914. The cause of action is grounded on the provisions of an ordinance which imposes a license on the exercise of the privilege. The complaint consists of a special count in assumpsit which sets out in haec verba the entire ordinance. This ordinance contained a provision making it unlawful to engage in any business for which a license was required without having first paid the license, and a penalty was prescribed for the violation thereof. It was contended that the municipality was confined to a prosecution under this penal section, and it was also contended that as it appeared from the averments of the complaint that the circuit court was without jurisdiction, it should have dismissed the case on motion of appellant.
The ordinance, if valid, created a legal liability which could be enforced by an action in assumpsit, as it contained no provision making any remedy it prescribed exclusive. In such instances the remedy given by the ordinance is merely cumulative. The trial court properly refused to dismiss the case on this ground. Griel Bros. Co. v. City of Montgomery, 182 Ala. 291 City of Anniston v South. Ry. Co.,
It appears from the bill of exceptions that it was agreed that:
"The said R.G. Dunning had been arrested for doing business without taking the license for which he is sued, by the town of Thomasville, in this court, and that upon the trial of said cause on the criminal docket of the circuit court of Clarke county, Ala., the same having been appealed to that court from the mayor's court of the town of Thomasville, Ala., the said R.G. Dunning was acquitted of said charge; that this trial was had and judgment rendered therein prior to the institution of this suit, and no appeal was taken from said judgment."
While no plea of res judicata was filed, the bill of exceptions recites that a plea setting up the above facts should be considered as filed in the cause, and it appears that the case was tried as if the issue was formally tendered by filing such plea. Under such circumstances, this court will review the action of the trial court just as if the issue actually tried had been made up in due form. City Loan & Banking Co. v. Byers, 1 Ala.App. 583, 55 So. 951; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A. (N.S.) 653; R. & D. Ry. Co. v. Farmer, 97 Ala. 141, 12 So. 86.
When a judgment is rendered by a court of competent jurisdiction on the merits, it is conclusive between the parties. 4 Mayf.Dig 728; Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514.
The suit for violating the town ordinance was not a criminal prosecution by the state, but a quasi civil action, with the town as plaintiff and the appellant as defendant. The parties and issue determined in that case are identical with the parties and issue in this case. The agreed statement of facts set up a good defense, and should have been sustained. United States v. McKee, 4 Dillon, 128, Fed.Cas. No. 15,688; Coffey v. United States, 116 U.S. 442, 6 Sup.Ct. 437, 29 L.Ed. 684; Stone v. United States, 64 F. 667, 12 C.C.A. 451.
The complaint was not demurred to; but it is here insisted that it appears from its averments that it is grounded on an invalid ordinance, and therefore does not state a substantial cause of action. If this is true, the complaint affords no legal support for the judgment, although its sufficiency was not questioned in the trial court. Mayor and Council of Columbiana v. J.W. Kelley et al., 172 Ala. 336, 55 So. 526; St. Clair Co. v. Smith, 112 Ala. 347, 20 So. 384; Linam v. Jones, 134 Ala. 570, 33 So. 343; Trott v. B.R.L. & P. Co., 144 Ala. 383, 39 So. 716; Ritter v. Hoy, 1 Ala.App. 644, 55 So. 1034; Ex parte Lane, 12 Ala.App. (on rehearing) 236, 67 So. 727.
Two reasons are assigned why this municipal ordinance should be declared invalid: (1) Because it unduly discriminates against appellant; and (2) because it imposes an unreasonable tax on the business of buying cotton seed.
The lawmaking powers of the state and its subdivisions that are delegated with such powers exercise a wide discretion in classifying various businesses for occupation taxes, and as to what is a proper amount to impose on each vocation. While this is true, the right is necessarily not an unbridled one, and has its limits, which, if transcended, render the tax invalid. Kendrick v. State, 142 Ala. 43, 39 So. 203; City of Montgomery v. Kelly, 142 Ala. 558, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43.
As has been said, exact uniformity is not required, and is unattainable in such matters; yet such taxes must fall with equal weight upon every member of a given class, and must impose a like tax on all who may exercise the avocation or privilege taxed. Phoenix Carpet Co. v. State, 118 Ala. 151, 22 So. 627, 72 Am.St.Rep. 143; City of Montgomery v. Kelly, supra.
The ordinance imposed a tax of $10 on the cotton seed...
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