Gambill v. Erdrich Bros. & Marx

• Decision Date: 18 May 1905
• Citation: 143 Ala. 506,39 So. 297
• Parties: GAMBILL, LICENSE INSPECTOR, v. ERDRICH BROS. & MARX.
• Court: Alabama Supreme Court

39 So. 297

143 Ala. 506

GAMBILL, LICENSE INSPECTOR, v. ERDRICH BROS. & MARX.

Supreme Court of Alabama

May 18, 1905

Appeal from City Court of Birmingham; Chas. W. Ferguson, Judge.

"To be officially reported."

Action by Erdrich Bros. & Marx against A. A. Gambill, as license inspector of the city of Birmingham, to recover a license tax which they had been forced to pay under an ordinance of the city for the sale of lager beer at wholesale. A judgment was rendered in favor of plaintiffs, and defendant appeals. Reversed.

McClellan C.J., dissenting.

E. D Smith, for appellant.

Richard H. Fries, for appellees.

DOWDELL J.

This is a suit brought by the appellees to recover back a license tax which they were forced to pay under an ordinance of the city of Birmingham for selling lager beer at wholesale. The trial was had by the court below on an agreed statement of facts and a judgment was rendered in favor of the plaintiffs, from which the present appeal is prosecuted.

The question presented in this case is whether or not the municipality of the city of Birmingham, under its charter has the power and authority to segregate lager beer from spirituous, vinous, or malt liquors, in prescribing and fixing license "for the businesses, occupations and professions in the city of Birmingham," and require a separate license for selling beer by the wholesale. In the statement of the facts on which the case was tried, the ordinance, in so far as it pertains to the question, is set out as follows:

"Annual License Ordinance.

"An ordinance to prescribe and fix license for the businesses, occupations and professions in the city of Birmingham, Alabama, for the year 1903.

"Section 1. Be it ordained by the mayor and aldermen of Birmingham that the following be and is hereby declared to be the schedule of license for the year 1903, for the divers businesses, occupations, vocations, and professions engaged in or carried on in the city of Birmingham, Alabama, and each and every person, firm, company or corporation engaging in any of the businesses, vocations, occupations or professions herein enumerated, shall pay for and take out such license and in such sums as are herein provided, to wit: * * * (40) Brewer. Each person, firm or corporation, brewer, brewery, or agency for brewery, selling beer by wholesale not including liquors, $300.00 * * * (230) Liquors. Each wholesale dealer in spirituous, vinous or malt, any or all, not including beer, $400.00." The provisions of the charter of the city of Birmingham (Acts 1898-99, p. 1391), in so far as pertinent here, are as follows:

"Sec. 25. Be it further enacted, that the said board of mayor and aldermen shall have full power and authority: * * * (5) To license, tax, regulate and restrain * * * the selling, retailing, wholesaling, or giving away of vinous, malt, spirituous or intoxicating liquors; and to close houses and places for the sale of intoxicating liquors when, in the opinion of the board, the public safety and peace may require it; and to authorize the mayor, by proclamation, to cause houses and places for the sale of intoxicating liquors to be closed for a period of not longer than the next regular meeting of the board, whenever, in his opinion, the public peace and safety may require it, and the board shall have power to revoke and cancel any license issued for the sale of spirituous, vinous or malt liquors, or the license of any house or place of public entertainment, when, in the opinion of the board, the public safety, peace, good order or decency may require. * * * (34) That the board of mayor and aldermen shall have the power to license, tax, regulate or stop such exhibitions, business, vocations, occupations or professions as are now licensed by the state, as well as other exhibitions, business, vocations, occupations or professions which are now or which may hereafter be engaged in or carried on in said city, in such sums as the board may fix, and to punish all persons who do business in said city without having taken out license required by laws and ordinances, and to impose and collect such licenses; but said city shall not license any business, exhibitions, professions, vocation or occupation, the engaging or carrying on of which is forbidden by state laws. The power to license in this charter conferred may be used in the exercise of the police powers, as well as for the purpose of raising revenue, one or both." (Italics are ours.)

"Sec. 36. Be it further enacted, that any person dealing in two or more of the articles or engaging in two or more of the businesses, vocations, callings or professions for which a license is or may be required for each, such person shall pay for and take out a license for each line of business, vocation, calling or profession."

In the discussion of the question presented it may be well here to state that it is a wellsettled...