Rule v. Town of Etowah

• Decision Date: 11 December 1953
• Citation: 31 Beeler 634,195 Tenn. 634,263 S.W.2d 498
• Parties: RULE et al. v. TOWN OF ETOWAH et al. 31 Beeler 634, 195 Tenn. 634, 263 S.W.2d 498
• Court: Tennessee Supreme Court

Page 498

263 S.W.2d 498

RULE et al. v. TOWN OF ETOWAH et al.

31 Beeler 634, 195 Tenn. 634, 263 S.W.2d 498

Supreme Court of Tennessee.

Dec. 11, 1953.

B. B. Gullett, Nashville, for appellants.

Williams & Williams and Charles C. Guinn, Etowah, for appellees.

TOMLINSON, Justice.

The Town of Etowah adopted an ordinance forbidding the sale of beer in the town at any point within 5,000 feet of a church or school. Its effect is to prohibit the sale of beer within the corporate limits of Etowah, as those limits are at present established. Appellants filed their bill in Chancery for the purpose of procuring a decree declaring the ordinance unconstitutional. From the decree of the Chancellor sustaining a demurrer and dismissing the suit these complainants have appealed.

The statute authorizing the sale of beer under the circumstances therein specified is carried in the Code Supplement at Section 1191.1 to 1191.19. A privilege tax for state purposes only, and with the like power being withheld from the counties and cities, is levied by 1191.2. By section 1191.15, providing for the distribution of this tax, 4/17ths thereof is allocated to 'existing incorporated municipalities according to population'.

Based upon the holding in Henderson v. Grundy County Beer Committee, 176 Tenn. 397, 401, 141 S.W.2d 901, that this beer statute is a revenue measure, appellants first contend that the ordinance is unconstitutional in that it suspends the general law, to-wit, this revenue statute. It is next contended that in as much as the Town of Etowah shares in the tax collections from the sale of beer its ordinance prohibiting the sale of beer there ought not to be upheld, since such conduct upon the part of Etowah is 'unconscionable and inequitable.'

With reference to the insistence last stated, every municipality in the State is entitled to share in that part of the tax allocated to municipalities without regard to whether beer is, or is not, sold in such municipality. Code Section 1191.15. Appellants should, therefore, address their complaint upon this phase of the matter to the legislature. Courts have nothing to do with it.

Turning now to the insistence that the ordinance is unconstitutional in that it suspends the general law, it will first be noted that Henderson v. Grundy County Beer Committee, supra, likewise held that the statute in question is a police measure, as well as a revenue measure. Since counsel seems to place some importance upon the revenue...