40 So. 968 | Ala. | 1906
This is on action brought by the city of Opelika, appellee here, to recover of the appellant, defendant in the court below, the price of a license tax for keeping a pool table “in connection with a bar-room or drinking saloon.” The complaint contained six counts, but all of said counts except the second and fourth, were subsequently eliminated by an amendment of the complaint. ' To the second and fourth counts a demurrer was interposed by the defendant, which was overruled by the court, and the defendant declining to plead further, judgment was rendered against him, and from which judgment the present appeal is prosecuted.
The license tax sought to be recovered, it is averred, is one imposed by an ordinance of the city of Opelika. The right of recovery in the action, is therefore, dependent upon the validity of the ordinance, the right not being asserted or claimed otherwise than under the ordinance. The defendant’s demurrer seeks to, and we think does, raise the question of the validity of the ordinance.
By an act approved February 10th, 1893, (Acts 3892-3 page 450), regulating the sale of liquor in the city of Opelika, among other things, it is provided as follows: “Sec. 5. Be it further enacted, That there shall not be allowed in any house where liquors are sold in said district any game of any kind, and there shall not be kept in such house any billiard, pool or any other kind of gaming table * * * * * Any person violating any provision of this section shall be guilty of a misdemeanor and, on conviction, shall be fined not less than one hundred nor more than five hundred dollars.” The act approved February 23, 1899, (Local Acts 1898-9, page 1133) entitled “An act to establish a new charter for the district of Opelika,” has incorporated in it the foregoing-provision of the local act of February 10, 1893.
These two acts, the one of February 10, 1893, and the one of February 21, 1899, establishing- a now charter for Opelika, contain the law regulating the liquor traffic in the city of Opelika. The latter act also contains
The general revenue law of the state approved Feb ruary 23, 1899, (General Acts 1898-9, page 164) regulating license tax, provides in section <59 on page 190, as follows: “For each pool table on which the game of pin pool is played, one hundred dollars. For each table upon which a game of pool is played with fifteen balls, more or less, and not pin jiool, for the use of which money or other things of value is charged or when in connection with a bar-room or drinking saloon, whether its use is charged for or not, fifty dollars.” The general revenue law of the state approved March 5, 1901, contains the same provisions as to pool tables, except that where the table is not kept in connection with a bar-room or drinking saloon, the amount of the license tax is twenty-five dollars. — Acts, 1900-1, page 2631, subdivision 68.
The ordinance of the city of Opelika in question, levied and required a license tax of fifty dollars for keeping a pool table “in connection with a bar-room or drinking saloon.” The question is Avhether the ordinance is invalid as being in conflict Avitli that provision of the local statute of February 10, 1893, and contained in the charter of the city of Opelika, which prohibits the keeping of a pool table in any house Avhere liquors are sold in said district, etc.
The charter of the city contains the general poAver authorizing the licensing of a pool table, and further contains the special prohibitory provision, that no pool table shall be kept in a house AAdiere liquors are sold, and makes a violation of this provision an indictable offense.
We think there can be no doubt that the city is without power and authority under its charter to license the
Affirmed.