Western Union Telegraph Co. v. City of Decatur

• Decision Date: 12 November 1918
• Docket Number: 8 Div. 422
• Parties: WESTERN UNION TELEGRAPH CO. v. CITY OF DECATUR.
• Court: Alabama Court of Appeals

81 So. 199

16 Ala.App. 679

WESTERN UNION TELEGRAPH CO. v. CITY OF DECATUR.

8 Div. 422

Court of Appeals of Alabama

November 12, 1918

On Rehearing, December 17, 1918

On Rehearing.

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action by the City of Decatur against the Western Union Telegraph Company. From the judgment rendered, the Telegraph Company appeals. Affirmed.

Certiorari denied 81 So. 205.

Bricken J., dissenting.

Francis N. Whitney, of New York City, Eyster &amp Eyster, of Albany, and Rushton, Williams & Crenshaw, of Montgomery, for appellant.

Callahan & Harris, of Decatur, for appellee.

BROWN P.J.

The Legislature, in the general revenue bill approved March 31, 1911, laid a privilege tax on intrastate business done by telegraph companies in this state, predicating the amount of the tax on a graduated mileage basis, and provided therein that--

"No telegraph company which has paid the privilege tax herein required shall be liable to pay any additional privilege tax in this state, except licenses required by cities and towns." Acts 1911, p. 159, § 1.

Appellant contends that this act operates as an abridgment of the power conferred on cities and towns by the provisions of section 1339 of the Code, to the extent of withdrawing the power to levy a privilege tax on telegraph companies for the purpose of raising revenue, limiting their authority to matters of regulation under the police power. This section of the Code expressly provides that--

"The power to license, conferred by this article, may be used in the exercise of the police power as well and for the purpose of raising revenue, one or both."

As we understand the appellant's contention, it is not that this section of the Code is repealed by implication entirely, but that the effect of the general revenue law is to amend this section of the Code, by striking from it the pertinent provision that privilege taxes may be levied by municipalities for the purpose of revenue. This contention runs counter to the provisions of section 45 of the Constitution, that--

"No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length." While the act lays a restriction against other subordinate government agencies in levying privilege taxes for state or county purposes, on the business or occupation of engaging in intrastate telegraphing, the manifest purpose of the quoted exception was to leave intact the power conferred on cities and towns by section 1339 of the Code, and the mere fact that the exception refers to the power of municipalities "to license" evidences no intention to deprive them of the power to levy a tax for revenue, or restrict their authority to licensing under the power of police. As was said in Kendrick v. State, 142 Ala. 45, 39 So. 203:

"Under our statutes, all occupation taxes are evidenced by a receipt which is called a license, so that we do not think that the fact that this is spoken of in the act, as a license, renders the act any the less a tax on the occupation for revenue."

The ordinance in question merely levies a tax on the intrastate business of the appellant, transacted within the corporate limits of the city of Decatur, especially excepting from its operation interstate and government business; therefore the defenses sought to be interposed by some of the pleas that the ordinance interferes with interstate or government business cannot be sustained. Postal Tel. Co. v. Charleston, 153 U.S. 692, 14 Sup.Ct. 1094, 38 L.Ed. 871. Neither can the defendant claim immunity from taxation under such ordinance, because of an acceptance by it of the provisions of the Post Road Act of Congress, approved July 24, 1866 (14 Stat. 221, c. 230 [U.S.Comp.St. §§ 10072-10077]); Postal Tel. Co. v. Charleston, supra; Williams v. City of Talladega, 164 Ala. 633, 51 So. 330; City of Troy v. Western Union Tel. Co., 164 Ala. 482, 51 So. 523, 27 L.R.A. (N.S.) 627; Williams v. City of Talladega, 226 U.S. 404, 33 Sup.Ct. 116, 57 L.Ed. 275; City of Anniston v. Southern Railway Co., 112 Ala. 557, 20 So. 915.

It is universally recognized that the power to tax for revenue is essentially an attribute of sovereignty conferred by the people, through the Constitution, on the state, and vested in the legislative department, which it may exercise within constitutional limitations without restraint or judicial supervision. Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627, 72 Am.St.Rep. 143; Barefield v. State, 79 So. 396; Dunlap v. State, 78 So. 638. And the courts recognize the right of the state to so combine the exercise of this power with the power of police as to embarrass and destroy businesses and occupations recognized as being hurtful to public morals, productive of disorder or injurious to the public good. City of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43; Cooley on Taxation (2d Ed.) p. 20; Tiedeman on Limitation of Police Power, 273, 277, 278.

However, this power may not be so used as to useful and harmless trades and occupations so essential to the liberty of the citizen in the pursuit of happiness. The very fact that the power of taxation is conferred as a matter of legislative authority for the purpose of raising revenue to meet the legitimate expenses and needs of the government is antagonistic to the idea that it may be used to embarrass and destroy useful and harmless occupations, that are essential to the prosperity of the people, and thus defeat the very purpose for which the power is conferred.

The liberty which is so sedulously guarded by the Constitution of the United States and of this and other states comprehends more than the mere freedom from personal restraint. It includes the right to pursue any useful and harmless occupation and to conduct the business in the citizen's own way, without being discriminated against, either by being prohibited from engaging in it or being burdened with the discriminative taxation. City Council of Montgomery v. Kelly, supra; City of Troy v. W.U. Tel. Co., 164 Ala. 486, 51 So. 523, 27 L.R.A. (N.S.) 627; Rhodes v. McWilson, 79 So. 462; Standard Chem. Co. v. City of Troy, 77 So. 383, L.R.A.1918C, 522.

While the general rule is that there is no limit to the power of the Legislature to levy an occupation tax under the taxing power, other than the necessities of the public treasury and the discretion of the legislative body exercised within constitutional limits, the weight of authority supports the view, particularly when the tax is imposed by a municipal ordinance, that it must stop short of confiscation, and must not be so oppressive as to prohibit the individual from following the ordinary harmless and useful occupation. Dil.Mun.Corp. (15th Ed.) § 1408; City of Troy v. W.U.T. Co., supra; Van Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85; Kendrick v. State, 142 Ala. 43, 39 So. 203; Ex parte Burnett, 30 Ala. 461; Ex parte Bryd, 84 Ala. 17, 4 So. 397, 5 Am.St.Rep. 328; McQuil.Mun.Corp. 731, 794.

It necessarily follows from these principles that the courts will, in a proper case, declare void any ordinance of a municipal corporation levying a tax upon a business or occupation that is prohibitive and destructive of the business. It is a power, however, that courts should cautiously exercise, and to justify interference, a flagrant case of excessive and oppressive abuse of power, resulting in the prohibition of a useful and harmless occupation or trade must be shown. Commonwealth v. Robertson, 5 Cush. (Mass.) 438; McQuil.Mun.Corp. 731; Kendrick v. State, supra; Caldwell v. Linden, 19 Neb. 569, 27 N.W. 647; Dil. Mun. Corp. § 1408; Lyons v. Cooper, 39 Kan. 324, 18 P. 296.

Because of the broad discretion vested in such legislative bodies, the presumption will be indulged that their acts and ordinances are reasonable and valid, and it is incumbent upon one who assails such act or ordinance to overturn this presumption. City of Troy v. W.U. Tel. Co., supra; Van Hook v. City of Selma, supra; McQuil. Mun. Corp. 731, 794; Standard Chem. Co. v. City of Troy, supra.

The reasonableness or unreasonableness of such tax or ordinance cannot be determined by the extent of the business of a single individual. There may be competition or negligence or other considerations affecting the extent of the business which cannot be charged to the taxing power. N., C. & St. L. v. Attalla, 118 Ala. 364, 24 So. 450; N., C. & St. L. v. Ala. City, 134 Ala. 414, 32 So. 731; City of Troy v. W.U.T. Co., supra.

When the averments of the defendant's pleas questioning the ordinance upon the ground that it is unreasonable are construed most strongly against the pleader, as must be done on demurrer, they are subject to the objection pointed out by the demurrer, that the defendant had not acquitted itself of negligence in the conduct of its business, by averring that it made and collected reasonable charges for all intrastate business transacted by it through its office in the city of Decatur. When the principles stated above are applied to the other pleas of the defendant, it is manifest that the demurrers were properly sustained thereto. Standard Chem. Co. v. Troy, supra.

This disposes of all the questions presented by the assignments of error, and, finding no error in the rulings of the trial court, the judgment appealed from will be affirmed.

Affirmed.

BRICKEN J. (dissenting).

I think the whole case rests upon...