Smith v. Town of Notasulga, 5 Div. 536
| Citation | 59 So.2d 674,257 Ala. 382 |
| Decision Date | 19 June 1952 |
| Docket Number | 5 Div. 536 |
| Parties | SMITH et al. v. TOWN OF NOTASULGA et al. |
| Court | Supreme Court of Alabama |
Jas. O. Davis, Jr., and Brown & McMillan, Auburn, for appellants.
Edw. H. Reynolds, Notasulga, for appellees.
The legislature by Act No. 442, a local law applicable to the Town of Notasulga, Alabama, the principal offices of which are located in Macon County, altered and rearranged the boundary line and corporate limits of the Town of Notasulga to include territory located in Lee County. Macon County is a dry county and Lee County is a wet county within the meaning of the A.B.C. Act (Title 29, Chapter 1, Code of 1940). Said local act was approved August 17, 1951, and is published in the Acts of 1950-51, p. 794.
At the time of the passage of said act the complainants, resident within the territory included in the corporate limits of Notasulga, by said act located in Lee County, were restaurateurs engaged in the business of operating restaurants in said territory and as an incident thereto were licensed by the ABC Board to sell the the general public beer and similar malt or brew beverages in the conduct of said business. Such license was granted to them under the provisions of Chapter 1, Title 29, Code of 1940, §§ 1 through 78, inclusive. Thereafter the Town Council of Notasulga levied a license tax against said business fixing the amount thereof, the requirement of a license from the town under said ordinance and otherwise regulating the sale of such intoxicating liquors in said territory.
The complainants Smith, Ruff, Fralic and Thompson filed a bill, alleging that said ordinance was inconsistent with the general laws of the state, because it levied an additional tax to that authorized by the general law regulating such activity and, therefore, was unconstitutional, excessive and arbitrary. The bill seeks a declaratory judgment or decree. The Town of Notasulga filed demurrers to the bill, for want of equity, and that the averments as to the ordinance being arbitrary and excessive were the mere conclusions of the pleader.
While the ordinance is inartfully drawn and its provisions are complicated--certainly not clear--in that it does not provide in plain and exact language that its operation shall be confined to the territory which lies in Lee County, nevertheless it does contain the following provision:
* * *.'
We interpret said quoted section as meaning that it shall not apply to the territory in Macon County, but only to that in Lee County brought into the corporate limits of Notasulga by Act No. 442, supra.
The appeal is by the complainants from a decretal order of the court sustaining the respondents' demurrer to the bill. The pivotal question in the case is, 'Do the Mayor and Aldermen of the Town of Notasulga have authority to pass an ordinance levying an additional license or privilege tax on persons engaged in the business of restaurateurs, located in that part of Lee County brought within the jurisdiction of said town by the local law No. 442, which alters and rearranges the boundary line and corporate limits of said municipality?'
No question is raised in respect to the legislative processes through which said act was passed and approved as a local law, and therefore, we assume that the legislative procedure through and by which said act was duly passed meets the requirements of § 106 of the Constitution. State ex rel. Brooks v. Gullatt, 210 Ala. 452, 98 So. 373.
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