Hale v. State

Decision Date28 January 1928
Docket Number4 Div. 366
Citation116 So. 369,217 Ala. 403
PartiesHALE v. STATE.
CourtAlabama Supreme Court

Rehearing Denied April 5, 1928

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

H.D Hale was convicted of conducting a vaudeville, theatrical show without a license, and he appeals. Affirmed.

Merrill & Field, of Anniston, and Farmer, Merrill & Farmer, of Dothan, for appellant.

Charlie C. McCall, Atty. Gen., and W.H. Mitchell, of Florence, for the State.


The prosecution of defendant for doing business without a license is a test of the validity of section 16 of the Revenue Act of July 22, 1927. Gen.Acts of 1927, p. 156. The suggestion of invalidity by appellant is that the tax is confiscatory, prohibitive, and illegal.

The statute in question (section 16 of the General Revenue Act) concludes with the proviso that the section "shall not apply to any show operating in a theater regularly licensed"; and section 79 concludes as follows:

"If any section, clause, provision or portion of this act shall be held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause or provision or portion of this act which is not in and of itself unconstitutional."

Thus was made separable a proviso, section, or clause or any other provision or portion of the enactment that may be held to be invalid or unconstitutional by said last expression of the legislative will.

There is a distinction to be made between a statute in the exercise of the police power and that in which the state exercises its taxing power in such wise as not to be oppressive and unconstitutional. The presumptions obtaining in favor of such enactments, and the burden of proof in an attack on the statute were recently considered by this court. Standard Chem. Co. v. City of Troy, 201 Ala. 89, 77 So. 383 L.R.A.1918C, 522.

It is the duty of this court to bear in mind the distinction between the useful and harmless businesses, trades, and occupations essential to the liberty of the citizen in pursuit of happiness, and that class of human endeavor or enterprise which, while tolerated, is recognized as being or having a tendency that is productive of disorder, injurious to the public, or hurtful to public morals, by reason of its debilitating or dissipating tendencies or influences on the life of the people, old or young. Republic I. & S. Co. v State, 204 Ala. 469, 86 So. 65; Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43. And in this there is the power and authority of government to make valid regulations and to levy a proper license tax upon the conduct of lawful and needful business under the taxing and police power, and the right of prohibition, regulation, or discouragement of the last-named class productive of disorders or hurtful to public morals. The presumption of lawful enactment obtains and to justify interference by the courts, a flagrant case of excessive and oppressive abuse of legislative power, resulting in the prohibition of a useful and harmless occupation, business, or trade, must be shown. Denson v. Ala. F. & I. Co., 198 Ala. 383, 73 So. 525; Briggs v. B.R.L. & P. Co., 188 Ala. 262, 66 So. 95.

It should be stated at the outset, as to a license such as we have before us, that in the case of Woco Pep Co., infra, is the declaration of taxing and licensing ordinances challenged as excessive, and that the same should have been given a reasonable time in its due administration to observe and fully obtain the result upon the class of businesses subject thereto, and the public who is to absorb or assimilate such imposed burden of government; that without such trial or due application the courts are ordinarily not able to say that a license tax is confiscatory.

Prima facie a tax is reasonable (Gamble v. City of Montgomery, 147 Ala. 682, 39 So. 353; Williams v. City of Talladega, 164 Ala. 633, 51 So. 330); and the reasonableness, as a license tax, imposed by law, cannot be determined by the extent of the business of a single party so engaged, for reasons unusual or extraordinary, as competition, negligence, extravagance, or misfortunes affecting merely the extent of profits and earnings of a single business (Woco Pep Co. v. City of Montgomery, 213 Ala. 452, 459, 105 So. 214; N.C. & St. L. Ry. v. City of Attalla, 118 Ala. 362, 24 So. 450; Williams v. City of Talladega, 164 Ala. 633, 649, 51 So. 330; Id., 226 U.S. 404, 417, 33 S.Ct. 116, 118, 57 L.Ed. 275, 280; Atlantic, etc., Co. v. Philadelphia, 190 U.S. 160, 23 S.Ct. 817, 47 L.Ed. 995). Like reasons would require a sufficient time for a proper test of the provisions and the result of a general statute imposing a license tax, in its effect upon a useful and harmless business, duly and economically administered, and not embarrassed by such extraneous influences.

In the case of Ex parte Sikes, 102 Ala. 173, 15 So. 522, 24 L.R.A. 774, an effort of a defendant to discharge the burden upon him under the law as the party attacking a liquor license, to show that the same was prohibitory, it was declared:

"We do not think there is anything in this showing, which reasonably satisfies the mind that the license required is prohibitory in a business view."

In that case it was not shown what salaries or other reasonable and necessary expenses were incurred in a right and proper conduct of the business, and the fact that some dealers did an unprofitable business was not thought to be sufficient to strike down the license tax imposed. The record in the Sikes Case and in this case are likewise meager as to the amounts paid in--of salaries and actual or necessary operating expenses, etc. It may not be necessary that we discuss more in detail the facts before us, for the reason to which we advert.

The classification employed is well founded, is not arbitrary and illegal; for the business so taxed is of the kind or class which, under certain reasonable limitations of time and place, are tolerated, yet are recognized as probably susceptible to debilitating influences and dissipating tendencies hurtful to public morals, and therefore "productive of disorder or injurious to the public." City of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43; Standard Chem. Oil Co. v. City of Troy, 201 Ala. 89, 77 So. 383, L.R.A.1918C, 522; Gamble v. City of Montgomery, 147 Ala. 682, 39 So. 353. That is to say, the transient vaudeville and theatrical shows, operating temporarily in different places, in tents or otherwise, were the subject of the due and valid exercise of the police power. See Goldstein's Case for authorities, 207 Ala. 569, 575, 93 So. 308. The courts are generally content to assign or not assign the subject and classification within or beyond the pale of police power without an attempt at specific definition. In Lochner v. New York, 198 U.S. 45, 49, 25 S.Ct. 539, 546, 49 L.Ed. 937, 944 (3 Ann.Cas. 1133), Mr. Justice Peckham said:

"It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose. Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455, 3 Interst.Com.Rep. 185; Brimmer v. Rebman, 138 U.S. 78, 11 S.Ct. 213, 34 L.Ed. 862, 3 Interst.Com.Rep. 485. The court looks beyond the mere letter of the law in such cases. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220."

In Western Union Tel. Co. v. City of Decatur, 16 Ala.App. 679, 81 So. 199 (approved by this court, 202 Ala. 593, 81 So. 205), is contained the declaration:

"It is universally recognized that the power to tax for revenue is essentially an attribute of sovereignty conferred by the people, through the Constitution, on the state, and vested in the legislative department, which it may exercise within constitutional limitations without restraint or judicial supervision. Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627, 72 Am.St.Rep. 143; Barefield v. State 79 So. 396; Dunlap v. State 78 So. 638. And the courts recognize the right of the state to so combine the exercise of this power with the power of police as to embarrass and destroy businesses and occupations recognized as being hurtful to public morals, productive of disorder, or injurious to the public good. City of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43; Cooley on Taxation (2d Ed.) p. 20; Tiedeman on Limitation of Police Power, 273, 277, 278. However, this power may not be so used as to useful and harmless trades and occupations so essential to the liberty of the citizen in the pursuit of happiness."

See 37 C.J. 187, § 37; Kendrick v. State, 142 Ala. 43, 39 So. 203; Standard Chem. Company v. Troy, 201 Ala. 89, 77 So. 383, L.R.A.1918C, 522.

Defendant and witness Swain express the opinion that their tent shows are harmless or above reproach; yet it is not disclosed by the record the type of singing and dancing and other entertainment given or exhibited by the other named "minstrels" or "troops" or other "tent show" entertainers, who have or may enter or tour the urban, semiurban, or rural sections...

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