Southern Liquid Gas Co. v. City of Dothan, 4 Div. 566

• Decision Date: 02 March 1950
• Docket Number: 4 Div. 566
• Citation: 253 Ala. 350,44 So.2d 744
• Parties: SOUTHERN LIQUID GAS CO. v. CITY OF DOTHAN.
• Court: Alabama Supreme Court

Page 744

44 So.2d 744

253 Ala. 350

SOUTHERN LIQUID GAS CO. v. CITY OF DOTHAN.

4 Div. 566.

Supreme Court of Alabama.

March 2, 1950.

Alto V. Lee, III, and Huey D. McInish, of Dothan, for appellant.

Lewis & Lewis, of Dothan, for appellee.

Pertinent counts of the complaint are as follows:

Count Two: 'Plaintiff further claims of the Defendant the sum of two thousand three hundred ninety and 03/100 dollars (2,390.03) for money paid by Plaintiff to Defendant under duress, involuntarily, and under protest on November 1st, 1948, under the following circumstances and conditions:

'Plaintiff avers that the Defendant, the City of Dothan, is a municipal corporation, and that before the happening of the things and matters herein complained of and pursuant to its authority under the Law, it passed and enacted on September 21st, 1948, Ordinance Number 1005, an Ordinance prescribing and fixing licenses for Exhibitions, Trades, Businesses, and Professions in the City of Dothan, Alabama, for the fiscal year beginning October 1st, 1948, and ending September 30th, 1949, Section 87 thereof was and is in words and figures as follows: 'Gas, Natural or Artificial, Wholesale or Retail, Three percent (3 per cent) of Gross Receipts for preceding year according to State Law,' and was purportedly passed and adopted under and by virtue of the provisions of Title 37, Section 745, Code of Alabama 1940, as amended by Act Number 355, General Acts 1947, Page 238.

'Plaintiff avers that it is a gas distributing company, distributing artificial gas by tanks, drums, tubes, cylinders, and otherwise, but that it is not a public utility within the meaning of said Title 37, Section 745, Code of Alabama 1940 as amended, supra.

'Wherefore, Plaintiff avers that said Section 87 of Ordinance Number 1005 passed, approved and adopted by Defendant on September 21st, 1948, as hereinabove set forth, is void so far as its application to Plaintiff, and that Plaintiff is not liable for the sum of $2,390.03, the amount paid by Plaintiff to Defendant for its privilege license for the fiscal year beginning October 1st, 1948, and ending September 30th, 1949, said amount being 3% of Plaintiff's gross receipts for the preceding year.

'Plaintiff further avers that on November 1st, 1948, it paid Defendant the said sum of $2,390.03, so exacted and demanded of it for the purpose of licensing Plaintiff as a gas distributing company as hereinabove set forth; that said payment so made by it involuntarily, under duress, under threat of criminal prosecution and with notice to Defendant at the time of said payment that suit would be filed for the recovery thereof,

'Wherefore, Plaintiff claims said sum of $2,390.03 of the said Defendant, together with the interest thereon from November 1st 1948.'

Count Four: 'Plaintiff further claims of the Defendant the sum of $2,390.03 for money paid by the Plaintiff to Defendant under protest and involuntarily on November 1st, 1948, under the following circumstances and conditions:

'Plaintiff avers that the Defendant, the City of Dothan, a municipal corporation passed and enacted on September 21st, 1948, Ordinance Number 1005, an Ordinance prescribing and fixing licenses for exhibitions, trades, businesses, occupations and professions in the City of Dothan, Alabama, for the fiscal year beginning October 1st, 1948, and ending September 30th, 1949, Section 87 thereof was and is in words and figures as follows: 'Gas, Natural or Artifical, Wholesale or Retail, Three per cent (3 per cent) of Gross Receipts for preceding year according to State Law', and when applied to Plaintiff amounts to a great and large sum, to-wit: $2,390.03.

'Plaintiff avers that such license rate is excessive and discriminatory against Plaintiff's exhibition, trade, business or occupation. That same is greatly in excess of any other 'exhibition, trade, business, occupation or profession's' license rate as prescribed and fixed by said Ordinance Number 1005. That by levying such license tax on Plaintiff, Defendant greatly discriminated against Plaintiff, in that the resulting license was of such amount as to be confiscatory in relation to all other licenses for exhibitions, trades, businesses, occupations or professions in said City of Dothan.

'Plaintiff further avers that on November 1st, 1948, it paid Defendant the said sum of $2,390.03 so exacted and demanded of it for the purpose of licensing Plaintiff as a gas distributing company as hereinabove set forth; that said payment so made by it involuntarily, under duress, under threat of criminal prosecution and with notice to Defendant at the time of said payment that suit would be filed for the recovery thereof.

'Wherefore, Plaintiff claims said sum of $2,390.03 of the said Defendant, together with the interest thereon from November 1st, 1948.'

STAKELY, Justice.

This suit was instituted by Southern Liquid Gas Company (appellant) against the City of Dothan (appellee) to recover $2,390.33, alleged to have been illegally exacted from appellant as a privilege license for doing business in the City of Dothan from October, 1, 1948 to September 30, 1949. The complaint consisted of seven counts. Count one was the common count for money received to the use of the plaintiff. Demurrer was interposed to each of the other counts, which the court sustained. The plaintiff declined to plead further and on account of these adverse rulings, took a non-suit. Hence this appeal. § 819, Title 7, Code of 1940.

With some variations the allegations of counts 2, 3, 5 and 7 are similar and the averments of counts 4 and 6 are alike. We think the purposes of this appeal will be served if we use counts 2 and 4 for the purpose of discussion. Counts 2 and 4 will accordingly appear in the report of the case.

Recovery under count 2 is based on the theory that a license was exacted from the plaintiff under an ordinance adopted by the municipality prescribing a license against those engaged in the gas distributing business and that the city adopted the ordinance under authority of § 745, Title 37, Code of 1940, as amended by Act of the Legislature, General Acts 1947, p. 238. We set out the statute as follows. 'Section 3. That Section 745, Title 37, Code of Alabama 1940 be and the same is hereby amended so as to read as follows: Section 745. Public utilities.--The maximum amount of privilege or license tax which the several municipalities within the state may annually assess and collect of persons, operating (electric, hydro-electric) street railroad, electric light and power companies, gas companies, water works companies, pipe line companies for transporting or carrying gas, oil, gasoline, water or other commodities, gas distributing companies whether by means of pipe lines or by tanks, drums, tubes, cylinders, or otherwise, heating companies...