68 So. 586 | Ala. Ct. App. | 1915
The appellee, O’Connell, after his conviction in the recorder’s court of the appellant city for violation of a municipal ordinance, which prohibited, under penalty, any person, firm, or corporation from engaging in the business of supplying water for public or domestic purposes without first paying for and taking out a license therefor in the sum as required by the ordinance, appealed to the circuit court of Jefferson county, where he was discharged, upon the ground that the ordinance with the violation of which he was charged was void as in contravention of section 36F of an act of the Legislature, approved March 31, 1911, and entitled “An act to further provide for the revenues of the state of Alabama” (Gen. Acts 1911, p. 159), which said section reads as follows: “The maximum amount of privilege or license tax which the several municipalities within the state may annually assess and collect of persons, firms or corporations operating street railroads, electric • light companies, gas companies, steam-heating companies, and waterworks companies under the laws of this state or any other state or whether incorporated at all or not, shall not exceed two per cent-um of the gross receipts of said business of such persons, firms, or corporations, provided, however, that the amount paid by such persons, firms, or corporations as intangible property tax to such municipalities shall be allowed as a credit on and against the said privilege or license tax.”
In the case of McLendon v. State, 179 Ala. 54, 60 South. 392, our Supreme Court had under consideration the question of the constitutionality of section 33% of the same act of the Legislature before cited that contains section 36F now before us, which section 33%, after levying an annual license tax of $5 on lawyers and other professional classes therein enumerated, undertook, in a concluding proviso, to exempt from the tax all Confederate soldiers engaged in such professions; and our Supreme Court held that the exemption was void, on constitutional grounds not here involved, however, and, that being void, the whole section must fall, because clearly it evinces a legislative intent not to levy
Here the situation is clearly different, both as to the language, character, and purpose of the section (36F) under consideration. It does not levy any tax whatsoever. In its body and as its leading purpose it is merely and manifestly only a limitation upon the power of the municipality to tax certain classes of business, limiting it as to the amount of the license or privilege tax which it may levy upon such businesses, by declaring in clear, unambiguous, and unconditional terms that the “maximum amount of privilege or license taxes which the several municipalities of the state may annually assess and collect of persons, firms, or corporations” engaged in such businesses as therein specified “shall not exceed two- per centum of the gross receipts” therefrom; and in its concluding paragraph, added by way of a proviso, it seeks, in effect, it seems, to' relieve or to exempt such persons, firms, or corporations from that tax to the extent that they have paid taxes to the municipality on their intangible, property. This exemption, if it may properly be called such, may fail and yet furnish no reason for a failure-of the' limitation, as the two are separable and distinct, not depending one upon
On the other hand, the same result will follow if, instead of construing the proviso as an exemption to the companies, we construe it as a further limitation on the municipality; further limiting it as to the amount of the license tax it may levy and collect from the companies specified in the section (which is probably the correct construction); it by no means follows that because the last limitation fails the first should fail also. The tuvo are not interdependent. The validity of the first is not made contingent or conditional upon the validity of the second. The legislative purpose, manifest in the section was to protect (whether wisely or not is not for us to say) public utility corporations of the class specified from the power of municipalities to tax —a power which, unrestrained, is the power to destroy —and it cannot, we think, rationally be said from an examination of the section here that the Legislature intended that if the last, limitation on the municipality should prove abortive, the first should also. — Authorities, supra.
It follows from what we have said that the judgment appealed from must be and is affirmed.
Affirmed.