Kentz v. City of Mobile

• Decision Date: 01 December 1898
• Citation: 24 So. 952,120 Ala. 623
• Parties: KENTZ v. CITY OF MOBILE.
• Court: Alabama Supreme Court

24 So. 952

120 Ala. 623

KENTZ v. CITY OF MOBILE.

Supreme Court of Alabama

December 1, 1898

Appeal from city court of Mobile; O. J. Semmes, Judge.

Action by the city of Mobile against Joseph Kentz to recover a fine for the violation of a city ordinance imposing a tax on vehicles. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by the city of Mobile, the appellee against the appellant, Joseph Kentz.

The complaint charged that Joseph Kentz, the appellant, violated an ordinance of the city of Mobile, known as the "License Ordinance," and which required every firm association or corporation, trading or carrying on any business, trade or profession, by agents, or otherwise within the limits of the city of Mobile, to pay a license as in said ordinance fixed. A portion of section 2 of said ordinance provided that drays, wagons and vehicles, used in the transportation of goods and merchandise, and vehicles used for hire at the public stands, should pay an annual license of $7.50.

Section 7 of said ordinance provides that whenever any person shall fail or refuse after publication of said ordinance to obtain a license under the provision of the same, he shall be fined in such sum as the recorder may impose, not exceeding $50 nor less than $5 for each day's failure to obtain said license. The complaint alleges that said ordinance was published in the Mobile Daily Register, a newspaper of the city of Mobile, on March 18, 1897. The complaint alleges that on the 13th day of July, 1897, and also within 30 days of said July 13, 1897, said defendant, Joseph Kentz, violated said ordinance by using three vehicles upon the streets of the city of Mobile in transporting goods and merchandise without procuring a license therefor as required by said ordinance. Complaint also alleges that for the violation of said ordinance by said defendant the recorder of said city on the 13th day of July, 1897, duly and lawfully imposed on said defendant a fine of $15, whereby the defendant became and is liable to pay the said sum of $15. The defendant pleaded not guilty to said complaint. The cause was submitted to the jury upon the license ordinance in question, and upon an agreed statement of facts which is set out in the bill of exceptions, and which contained the following recital of facts: "The defendant is engaged in the manufacture of brick, at a place outside of the corporate limits of the city of Mobile, and has no office or agent within the corporate limits of the city of Mobile. The defendant uses three wagons to deliver brick to such persons as may purchase same of him at places within and without the corporate limits of the city of Mobile. The wagons are used exclusively in carrying the brick from the place where the same is manufactured outside of the corporate limits of the city of Mobile to such places within or without the corporate limits of the city of Mobile as the purchaser may direct, and when delivered to places within the city of Mobile, said wagons use the streets of said city for the purpose; and said wagons were so used in the streets of the city of Mobile for that purpose after the 18th day of March, 1897. Defendant makes no charge against a customer for the use of the wagons and derives no profit from their use. Defendant sells brick to those who receive it at his place of business at the same price at which he sells it to those to whom he delivers it with said wagons. It is the custom of other manufacturers of brick, in and about the city of Mobile, to deliver brick purchased of them to the purchaser at such place as he may designate, without additional charge. The use of said wagons is an item of expense to the defendant in the conduct of his business. The license ordinance hereto attached is a true copy of the ordinance of force in said city on the 13th day of July, 1897, and it is the ordinance under which said city proceeds in said cause against defendant. Said ordinance was published in the Mobile Daily Register, a newspaper published in the city of Mobile, on March 18, 1897, and is herewith made a part of this agreed statement of facts. The value of the wagon is about $30. The amount of the license, including the brass tag to be placed on the wagon, demanded of the defendant, is $7.75. The cost of issuing the license does not exceed 25 cents. The license demanded of the defendant is, when collected, not applied to any particular purpose, but is paid into the general city fund, and is applied, together with collections from other sources, to general and municipal purposes. The greater part of the brick manufactured by the defendant is delivered to purchasers in the corporate limits of the city of Mobile. The weight of each load of brick is about 2,000 pounds."

The facts as stated in the agreed statement of facts were all the evidence introduced. Thereupon the court at the request of the plaintiff gave the general affirmative charge to the jury in its favor. The defendant duly excepted to the giving of this charge, and also duly excepted to the court's refusal to give the general affirmative charge requested by him.

McIntosh & Rich, for appellant.

B. B. Boone, for appellee.

HARALSON J.

The new charter of Mobile (Acts 1896-97, p. 542) in section 28 bestows on the general council of the city, for the purpose of carrying on the government of the city under its charter, the power to levy and collect a tax, each year, upon all the real and personal property, and all subjects of state taxation, within the city, not exceeding six-tenths of 1 per cent.

Section 43 provides, that the general council shall, "besides the tax heretofore authorized [under said section 28], have the authority to levy and collect from all persons and corporations, trading or carrying on any business, trade or profession by an agent or otherwise within the limits of said corporation, a license tax which shall be fixed and declared each year by ordinance of said corporation," and also, in addition to the license tax, it was provided, that "a vehicle license may be imposed in addition to business license, provided that said license shall only apply to vehicles used in the transportation of goods or merchandise and vehicles used for hire at the public stands." In Davis v. Petrinovich, 112 Ala. 654, 21 So. 344, after careful consideration, we sustained a vehicle license tax, as a valid exercise of the power competently bestowed by the legislature, and we need not here repeat what was then said and afterwards more elaborately discussed and sustained in the case of Ph nix Carpet Co. v. State (Ala.) 22 So. 637.

But granting this power, it is objected that the tax was levied in this case against the vehicles themselves, and not against the persons owning them, and, therefore, it is a property tax. The ordinance of the city, itself, in section 1, imposes a license tax on the persons carrying on business, trade or profession in the city, and the same, as the ordinance states, is hereby fixed for such business, trade or profession as follows;-naming many trades and occupations and the license tax for each, one item being-"Drays, wagons and vehicles used in the transportation of goods and merchandise, and vehicles used for hire at the public stands, $7.50." It is manifest that the business or occupation tax referred to, is required to be determined by the number of drays or vehicles that are used in the transportation of goods, and that the number of drays and other vehicles are referred to, not to impose a tax on them as property, but simply to arrive at a proper ascertainment of the just amount of...