Goldsmith v. City of Huntsville

• Decision Date: 29 October 1898
• Citation: 24 So. 509,120 Ala. 182
• Parties: GOLDSMITH v. MAYOR, ETC., OF CITY OF HUNTSVILLE.
• Court: Alabama Supreme Court

24 So. 509

120 Ala. 182

GOLDSMITH v. MAYOR, ETC., OF CITY OF HUNTSVILLE.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Oscar Goldsmith was convicted in a mayor's court of keeping a stock of merchandise without a license. On appeal to the circuit court, the cause was tried by the court without the intervention of a jury. The defendant appeals from a judgment rendered in favor of the plaintiff, and assigns as error the rulings of the court upon the pleadings and the rendition of judgment for the plaintiff. Affirmed.

McClellan J., dissenting.

Oscar R. Hundley and Lawrence Cooper, for appellant.

Jere Murphy and R. W. Walker, for appellee.

HARALSON J.

It is well settled, that the amount of tax authorized by the constitution and laws of this state to be levied on property as such, real and personal, has no reference to specific taxes which may be imposed on occupations and privileges; and the power to tax occupations and privileges, includes the power to license them. City Council of Montgomery v. Knox, 64 Ala 463; W. U. Tel. Co. v. State Board of Assessment, 80 Ala. 273, 276; Capital City Water Co. v. Board of Revenue (Ala.) 23 So. 970; City of Anniston v. Southern Ry Co., 112 Ala. 557, 20 So. 915; Cooley, Tax'n, 578, 579.

A tax on gross amount of sales, is not a tax on the goods themselves, or on the fruits of the sales, but upon the business of selling; is not a property tax, but an occupation or income tax; and a municipal corporation, when authorized by its charter, may require a license tax, which the state, even, does not require. Authorities supra.

A right conferred by charter to adopt ordinances, when penalties for their violation are not prescribed by charter, gives the municipality the incidental right to enforce them by reasonable, pecuniary penalties. 1 Dill. Mun. Corp. § 338; Mayor of Huntsville v. Phelps, 27 Ala. 55.

The power to levy the privilege tax complained of in this case, seems to have been very plainly conferred by the charter of the city of Huntsville. By section 25 it is provided, "That the said mayor and aldermen shall have authority to levy taxes on the real and personal estate within said city, *** on capital employed in business in said city, or incomes of persons residing therein, or itinerant or transient merchants, or any business, profession, trade or calling carried on in said city, and on all other subjects of taxation within said city on which the state taxes are now or shall hereafter be levied by the laws of Alabama." Acts 1888-89, p. 236.

This section is very comprehensive, and expressly authorizes a license tax on occupations or privileges, in addition to a property tax as such, whether the state has levied such occupation or privilege tax or not. It is true, however, that the state had prescribed the levy of such a tax, in addition to a property tax. Code 1886, § 454, subd. 5.

But, to make the matter plainer, if possible, it is again provided in section 28, "That said mayor and aldermen shall have power to require merchants, auctioneers, commission merchants, and other persons liable to pay taxes on sales of goods, wares and merchandise, to pay annually a tax on the gross amount of their stock on hand, not exceeding such tax as may by the laws of the state be levied on such stocks." This provision has reference entirely, to an occupation or privilege tax, and not to a tax on property as such. W. U. Tel. Co. v. State Board of Assessment, and Capital City Water Co. v. Board of Revenue, supra.

The fact that the latter part of said section, which authorizes the city to impose a privilege tax on all transient merchants, peddlers and auctioneers, or other persons not having a permanent residence in said city, or a property tax on the value of the goods offered by them for sale, or on the amount of their sales to be paid at such times as the city appoints, does not, by any means, as contended by appellant, limit or modify the preceding provision as to a privilege tax on all merchants, auctioneers and commission merchants permanently residing in and doing business in said city.

Section 29 of the charter makes the further provision, "That power and authority are hereby given to said mayor and aldermen to establish such rules and regulations not inconsistent with this act, for the assessment and collection of the taxes authorized by this act, as they may deem expedient, and to provide and employ all lawful means and proceedings to enforce and collect the same, and to impose such fines and penalties, subject to the restrictions (that the fine shall not exceed $100) hereinbefore expressed, for the violation of the ordinances in reference to taxes and revenues of the city, as they may deem expedient and proper; provided, that the powers conferred in this section shall not extend to imprisonment for debt."

The appellant was proceeded against before the mayor on affidavit and warrant, for carrying on the business of a merchant in Huntsville, without first obtaining a privilege or license tax for so doing, in violation of a city ordinance in such cases made and provided. On trial before the mayor, he was fined $25 and costs. He appealed to the circuit court, executing a bond in the sum of $50, with two sureties, conditioned that failing in said appeal, the obligors should satisfy such judgment as the circuit court might render in the premises.

In the circuit court, the mayor and aldermen filed a complaint, as required by section 4627, Code 1896 (section 4231, Code 1886), complaining of defendant, that within 12 months before the commencement of the prosecution, defendant did carry on the business of a merchant within the corporate limits of the city of Huntsville, without paying the tax, as required by the privilege tax ordinance of said city, adopted April 21, 1896, as amended June 16, 1896.

The complaint was demurred to on many grounds, the principal one being, that the said ordinance was illegal, unconstitutional and void, but the demurrer was overruled, and defendant pleaded many special pleas, setting up the same defenses as were sought to be made available by grounds of demurrer. A demurrer to these pleas was sustained, and the cause was tried by the court, a jury...