Standard Chemical & Oil Co. v. City of Troy

• Decision Date: 20 December 1917
• Docket Number: 4 Div. 745
• Parties: STANDARD CHEMICAL & OIL CO. v. CITY OF TROY.
• Court: Alabama Supreme Court

77 So. 383

201 Ala. 89

STANDARD CHEMICAL & OIL CO. v. CITY OF TROY.

4 Div. 745

Supreme Court of Alabama

December 20, 1917

Appeal from Circuit Court, Pike County; A.B. Foster, Judge.

Suit by the City of Troy against the Standard Chemical & Oil Company to recover busi ness license taxes. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Acts 1911, p. 449) § 6 Affirmed.

John H Wilkerson, of Troy, for appellant.

C.C Brannen, of Troy, for appellee.

THOMAS J.

The trial was had by the court without a jury, on an agreed statement of facts. The suit was predicated on ordinances of the city of Troy, being instituted by the municipality, appellee, against appellant, the Standard Chemical & Oil Company, a corporation, and sought to recover of the defendant certain business license taxes claimed to be due by it to the municipality under said ordinances, for the carrying on of the business of manufacturing or mixing fertilizers, and the business of an oil mill.

Count 2 was for license taxes claimed to be due for carrying on the business of manufacturing or mixing fertilizers outside of the corporate limits of Troy, "but within the police jurisdiction thereof"; the defendant having an agency or office in the city of Troy for the sale of fertilizers, and for which business plaintiff had, by an ordinance duly and legally adopted, imposed a license or privilege tax, the ordinance being set out as a part of each count. Count 3 was of like tenor, though it claimed the designated sum as due plaintiff from defendant as license taxes, for the carrying on of "the business of an oil mill *** outside of the corporate limits of the city of Troy, but within the police jurisdiction thereof." To each count defendant's demurrer was overruled.

The question for decision is, May the city, under a valid ordinance and in the reasonable exercise of its police power, impose a license on a manufacturing business, of the nature here dealt with, operated without the city limits, but within its police jurisdiction? That is to say, does the right to reasonably enforce police and sanitary regulations embrace the right to license and tax businesses carried on without the corporate limits of a city, but within its police jurisdiction, having due regard to the cost to the city of furnishing police protection in the indicated zone, and to the value of the same to the business concerns affected.

Mr. Dillon observes of the exercise of the police power:

"The natural and appropriate, although not the exclusive, function of ordinances is in legislation by the people of the locality, or their duly constituted representatives, for the conduct or government of the municipality and its inhabitants. Such legislation usually relates to the exercise of the police power delegated to the municipality by the Legislature, and is the means by which the municipality exercises the powers of restraint over the inhabitants and the use of property within the territorial limits, which are confided to the municipal government for the general good of the city and its inhabitants. The suppression of nuisances, the preservation of the public health, the prevention of fires, the regulation of trades and occupations and of the use and storage of dangerous articles, the establishment and control of markets, the suppression of disorderly conduct and breaches of the peace and other similar matters, when regulated, controlled, or directed by ordinances, are the result of the exercise by the municipality of the police power of the state under a delegation thereof by statute or by charter. The limitations of the police power have never been defined, and it is probable that no general limit can be placed upon it other than the requirement that its exercise must be confined to those matters which have a real and substantial relation to the public welfare." Mun. Corp. (5th Ed.) vol. 2, § 660.

Treating of paramount police power, Mr. Justice Fields expressed the doubt that the Legislature, by any contract with an individual, could restrain the power of a subsequent Legislature "to legislate for the public welfare, and to that end suppress any and all practices tending to corrupt the public morals." Boyd v. Alabama, 94 U.S. 645, 24 L.Ed. 302. And Mr. Justice Bradley thus defined the power:

"The plaintiff in error boldly takes the ground that, being a corporation, it has a right, by contract, to manufacture and sell beer forever, notwithstanding and in spite of any exigencies which may occur in the morals or the health of the community, requiring such manufacture to cease. We do not so understand the rights of the plaintiff. The Legislature had no power to confer any such rights. Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and public morals. The Legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the [police] power itself." Beer Co. v. Massachusetts, 7 Otto (97 U.S.) 25, 33, 24 L.Ed. 989.

This definition of the police power was adopted by our court in American Union Telegraph Co. v. Western Union Telegraph Co., 67 Ala. 26, 32, 42 Am.Rep. 90, where the supremacy of the police power of the state was maintained as to the terms on which foreign corporations may prosecute their business within the state. Van Hook v. Selma, 70 Ala. 361, 45 Am.Rep. 85; B.M.R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 27 L.R.A. 263, 46 Am.St.Rep. 92; L. & N.R.R. Co. v. Baldwin, 85 Ala. 619, 5 So. 311, 7 L.R.A. 266.

Concerning the exercise of the police power of regulation by license, and its distinction from the exercise of the power to the end of raising revenue, the Supreme Court of New Jersey observes:

"A power to license is of the same nature as a power to

regulate. Under a charter authorizing the regulation of a business or occupation, an ordinance compelling persons engaged in such business or occupation to take out licenses may be adopted if a license is an appropriate method of regulating the prosecution of the business. Burroughs on Taxation, 392. And if the power to license is given in express words, it nevertheless is included in the classification of police powers. *** The distinction between the power to license, as a police regulation, and the same power when conferred for revenue purposes, is of the utmost importance. If the power be granted with a view to revenue, the amount of the tax, if not limited by the charter, is left to the discretion and judgment of the municipal authorities; but if it be given as a police power for regulation merely, a much narrower construction is adopted; the power must then be exercised as a means of regulation, and cannot be used as a source of revenue. Cooley on Taxation, 408; Cooley on Const. Lim. 201." North Hudson Co. Railway v. Hoboken, 41 N.J.Law (12 Vroom) 71, 79, 81.

That wide discretion is conceded by the courts to the legislative authority in respect of the ground of classification has been recognized by this court. In Board of Commissioners, etc., v. Orr, 181 Ala. 308, 314, 61 So. 920, 922, 45 L.R.A. (N.S.) 575, Mr. Justice Sayre, speaking for the court in this connection, observes that courts--

"must be reluctant to disturb even a municipal ordinance enacted in pursuance of a comprehensive grant of power, and designed presumably to promote the public health and comfort, but the power to condemn is more freely exercised in such cases, for, as to municipal ordinances, it was an ancient jurisdiction of judicial tribunals to pronounce upon their reasonableness and consequent validity. It was always the doctrine of the courts that every ordinance or by-law must be reasonable and not inconsistent with the general principles of the law of the land, particularly those having relation to the liberty of the citizen and the rights of private property. Yick Wo v. Hopkins, 118 U.S. 371, 6 Sup.Ct. 1064, 30 L.Ed. 220."

The subjects and purposes of regulation, with the manner of the exercise of the power, under the police powers of the state and of municipalities, have been often discussed by the courts. For example, the police power has been held to extend to the regulation of slaughtering cattle and of market places (Butchers' Union Co. v. Crescent City Co., 111 U.S. 752, 4 Sup.Ct. 652, 28 L.Ed. 585; Petz v Detroit, 95 Mich. 181, 54 N.W. 644); to the prohibiting of combinations between connecting lines of railway (L. & N.R.R. Co. v. Kentucky, 161 U.S. 700, 16 Sup.Ct. 714, 40 L.Ed. 849); to declaring liability as for fires caused by engines (St. Louis Railway v. Mathews, 165 U.S. 23, 17 Sup.Ct. 243, 41 L.Ed. 611); to prescribing the manner in which railway crossings shall be kept in repair (Chicago Co. v. Nebraska, 170 U.S. 74, 18 Sup.Ct. 513, 42 L.Ed. 948); to the regulation of the killing and exportation of game (Magnet v. People, 97 Ill. 336); to the regulation of telephone rates (Hockett v. State, 105 Ind. 256, 259, 5 N.E. 178, 55 Am.Rep. 201); to the regulation of the transportation of natural gas ( Jamieson v. Indiana Gas & Oil Co., 128 Ind. 566, 28 N.E. 76, 12 L.R.A. 656, 660); to the requiring of street railways to sprinkle their tracks (State v. Railroad Co., 50 La.Ann. 1205, 24 So. 271, 56 L.R.A. 287)...