Woco Pep Co. of Montgomery v. City of Montgomery

• Decision Date: 14 May 1925
• Docket Number: 3 Div. 698
• Citation: 213 Ala. 452,105 So. 214
• Parties: WOCO PEP CO. OF MONTGOMERY v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

105 So. 214

213 Ala. 452

WOCO PEP CO. OF MONTGOMERY v. CITY OF MONTGOMERY.

3 Div. 698

Supreme Court of Alabama

May 14, 1925

Rehearing Denied, June 25, 1925

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by the Woco Pep Company of Montgomery against the City of Montgomery, to recover taxes paid under protest. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

London Yancey & Brower and Clara Cain, all of Birmingham, for appellant.

Ludlow Elmore, of Montgomery, and Reese & Reese, of Selma, for appellee.

THOMAS J.

The suit was for license tax and penalties paid under protest by plaintiff to the city of Montgomery.

The complaint contained the common counts and special counts for alleged illegal license taxes exacted and paid under protest by virtue of the ordinance of December 29, 1923, and for license tax and penalties on sales made outside the city and within its police jurisdiction.

The claims filed with the city and denied payment by its board of commissioners were for said several sums and penalties thereon. They were of several classes, of which was the claim for license tax and penalties on sales of motor fuel outside the corporate limits of the city and within its police jurisdiction in the amount of 18,603 gallons, which the witness Gardner interprets in money as being $186.03.

The power to define crime and fix the punishment for the commission thereof rests with the legislative department of government. The statute or ordinance having such legal effect must be so explicit as that all men subject thereto may know what act it is his duty to avoid or observe. State v Skinner (Ala.App.) 101 So. 327; State v Goldstein, 207 Ala. 569, 93 So. 308; United States v. Cohen Gro. Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045; United States v. Brewer, 139 U.S. 278, 11 S.Ct. 538, 35 L.Ed. 190.

The exercise of the police power to the end of a proper regulation and due taxation within the law has been given much consideration by the courts. Standard Chemical & Oil Co. v. City of Troy, 201 Ala. 89, 91, 77 So. 383, L.R.A.1918C, 522; State v. Goldstein, 207 Ala. 569, 93 So. 308; Ex parte Robert Smith (Ala.Sup.) 102 So. 122; Adams, Tax Col. v. Southern Ry., 167 Ala. 383, 52 So. 439; Van Hook v. City of Selma, 70 Ala. 363, 45 Am.Rep. 85; American U.T. Co. v. Western U.T. Co., 67 Ala. 26; Boyd v. Alabama, 94 U.S. 645, 24 L.Ed. 302. Reasonable discretion is conceded by the courts to legislative authority in respect of the grounds of classification for the foregoing purposes. Board of Commissioners v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A. (N.S.) 575; Standard Chemical Oil Co. v. City of Troy, 201 Ala. 89, 91, 77 So. 383, L.R.A.1918C, 522; Ex parte Robert Smith (Ala.Sup.) 102 So. 122; Yick Wo. v. Hopkins, 118 U.S. 371, 6 S.Ct. 1064, 30 L.Ed. 220.

The method employed, in the respective ordinances, of December 29, 1923, and February 5, 1924, for measuring and determining the aggregate amount required of plaintiff to be paid the city as a privilege or license tax per month on the business classified in the ordinance, was not a violation of section 211 of the Constitution, and was within the rule applied in Republic I. & S. Co. v. State, 204 Ala. 469, 86 So. 65.

Plaintiff complied with the provisions of the general ordinance approved December 17, 1923 (section 137), as to its filling stations located, respectively, at the corner of Bibb and Moulton and Monroe and McDonough streets in the city of Montgomery. The licenses issued to it purported to cover the period of 1924. It was provided in said ordinance as follows:

"Section 1. That the following be and is hereby declared to be the schedule of licenses for the year beginning January 1st, 1924, and ending December 31st, 1924, and each person, firm or corporation engaged in any business, trade or profession, or keeping or carrying on any establishment, or other thing, or doing any act in this section specified, shall pay an annual license thereof, as follows:

* * *

* * *

"137. Gasoline and Oil. Retail dealers in and agents for the sale of gasoline and oil exclusively, each $150.00.

"(a) Retail dealers in gasoline and oil in connection with other business, first pump or filler, $25.00.

"(b) For each additional filler pump, $15.00.

* * *

* * *

"Sec. 2. That all license fixed in the foregoing section shall apply per annum, except where otherwise specifically provided. Provided, that after July 1st, of each year, six months' license may be issued as provided by law, except as where otherwise stated."

It is further provided in that ordinance:

"Sec. 4. That any person desiring to engage in any trade, business or occupation for which a license is required, and for which a fixed place of business is required, shall designate the place at which said trade, business or occupation is to be carried on, and the license thereunder shall designate such place and such license shall authorize the carrying on of such trade, business or occupation only at such place. For each place at which said trade, business or occupation is carried on a license shall be paid."

The following is also contained in that ordinance (of December 17, 1923):

"Sec. 11. That the adoption of this schedule of licenses shall not abridge the right of the board of commissioners of the city of Montgomery, or other governing body, to change, alter, decrease or revoke any of the above licenses at any time. ***"

The ordinance of December 29, 1923, makes no reference to sales within the police jurisdiction of the city; that of December 17, 1923, contains such provision for "half tax" in its section 15 of subsection 137 of section 1; and the ordinance of February 15, 1924, sought to make a general provision for sales within the corporate limits or police jurisdiction of the city. We are not advised of other provisions for the license or privilege tax than those given expression in the several ordinances to which we have adverted.

The plaintiff having paid, under protest, the city's demands for said license taxes and penalties, and duly petitioned the city for a refund thereof, which was denied, to the extent of any said unlawful exaction by the city the amounts so paid may be recovered. Code 1923, § 3144; Allred v. Dunn, Tax Col., 207 Ala. 469, 471, 93 So. 390; Child Labor Tax Case, Bailey v. Drexel Furniture Co., 259 U.S. 33, 42 S.Ct. 449, 66 L.Ed. 817, 21 A.L.R. 1432.

The provision of section 89 of the Constitution is:

"The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state."

And the provision of the act of the Legislature approved September 29, 1919, is:

"That no municipality of this state shall assess or collect any privilege or license tax, or fee, from any person, firm or corporation for carrying on any business trade or profession, when the conduct and operation of such business trade or profession is wholly outside the corporate limits of such municipalities." Gen.Acts 1919, p. 1030.

This act is incorporated in the Code of 1923 as section 2173.

To an understanding of the questions before us, it is necessary to advert to the nature of the license tax in question in determining the power of the commission to alter the same after the issue of the license under section 11 of the ordinance of December 17, 1923. In Southern Car & Foundry Co. v. State, 133 Ala. 624, 629, 32 So. 235, it was declared that such license was personal. Southern Car & Foundry Co. v. Calhoun County, 141 Ala. 250, 37 So. 425; 25 Cyc. 625. It is not an obligation between the granting powers and the licensee that is protected in the general sense by the contract laws. (Bleon v. Emery, 60 Utah, 582, 209 P. 629), and it is revocable at pleasure. ( Powell v. State, 69 Ala. 10; Jones v. Motley, 78 Ala. 370; Foshee v. State, 15 Ala.App. 113, 72 So. 685; Dreyfus v. City of Montgomery, 4 Ala.App. 270, 58 So. 730; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Boyd v. Alabama, 94 U.S. 645, 24 L.Ed. 302; Burgess v. City of Brockton, 235 Mass. 95, 126 N.E. 456; State v. Cote, 122 Me. 450, 120 A. 538; Mahaney v. Cisco [Tex.Civ.App.] 248 S.W. 420; Prather v. Storey [[[Tex.Civ.App.] 249 S.W. 871; 25 Cyc. 625; Fell v. State, 42 Md. 71, 20 Am.Rep. 88; Cooley's Const. Lim. [5th Ed.] 343; Pomeroy's Const. Lim., § 554). See, also, Standard Chemical & Oil Co. v. City of Troy, 201 Ala. 89, 77 So. 383, L.R.A.1918C, 522; Van Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85.

As to plaintiff's liability for the privilege tax for doing said business in the city (and in its police jurisdiction), for which a license or privilege tax is charged and measured by the gallon, a consideration of the three city ordinances, the Constitution, and the general law of the state which has application, is necessary. We have adverted to the provisions of the general ordinance of December 17, 1923, the Constitution, and the general laws of the state. Reverting to the ordinances in evidence--that of December 29, 1923, and February 5, 1924--the latter is materially different from the former, purports to be a complete re-enactment as to the subject-matter, and, if free from constitutional objection, repealed the former. The title to the ordinance of December 29, 1923, is:

"An ordinance to fix a license tax on persons, firms or corporations engaged in the business of selling or distributing gasoline or other liquid motor fuels, kerosene and lubricating oils, one or all; to provide for the ascertainment, collection and payment of such license and fixing penalties for the violation of any of the provisions of the ordinance."

The second ordinance, of February 5, 1924, was amendatory of the first, and provided:

"Be it

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