City of Troy v. Western Union Tel. Co., 51 So. 523

City of Troy v. Western Union Tel. Co.

51 So. 523 | Ala. | 1909

SIMPSON, J.

The city of Troy, by ordinance, requires any telegraph company doing intrastate business *486in said city to pay license tax of $100. The appellee paid said tax under protest, to save its agent from criminal prosecution, and sued the city for the money, on the ground that the ordinance is void, by reason of the unreasonableness of the amount of said license. The case was tried by the court without a jury, on an agreed statement of facts, the substance of which will be set out by the reporter in the statement of this case.

The business of the appellee not being of that class calling for police regulation, this license tax must be considered as of that class Avhich is levied for revenue. While it has been held that the uniformity clause of our Constitution, in regard to taxes, does not apply to license taxation, yet that does not mean that there is no limit to the powers of a municipal corporation in levying license taxes. It is laid doAvn as a general proposition that all municipal ordinances must be reasonablé, yet a broad discretion must be alloAved, and it is difficult to formulate any definite rule as to Avhat is reasonable and what is not.- — Postal Tel. Cable Co. v. New Hope, 192 U. S. 55, 24 Sup. Ct. 204, 8 L. Ed. 338; Ex parte Byrd, 84 Ala. 18, 4 South. 397, 5 Am. St. Rep. 328; Mayor, etc., of Mobile v. Yuille, 3 Ala. 137, 143, 36 Am. Dec. 441; Atlantic etc. Tel. Co. v. Philadelphia, 190 U. S. 160, 167, 23 Sup. Ct. 817, 47 L. Ed. 995 Even in regard to the police powers of the state, the Supreme Court of the United States has said, “The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” — Lawton v. Steele, 152 U. S. 137, 14 Sup. Ct. 501 (38 L. Ed. 385).

In the case of N., C. & St. L. Ry. v. City of Attalla, 118 Ala. 362, 368, 24 South. 450, 452, this court recognizes the proposition that a license tax levied by a city *487under authority of law must he reasonable, but holds that “the reasonableness or unreasonableness of a license tax cannot be determined by the extent of the business of a single individual. There may be competition or negligence on his part, or other considerations affecting the extent of the business of complainant.” That was a bill to enjoin the enforcement of a city ordinance affixing a penalty for engaging in the business of transporting passengers, etc., without a license. The report of the case does not show wha.t the averments of the bill were as to reasonableness, nor that the complainant was the only person or corporation engaged in the business in said city. The expression quoted from the Attalla -Case is quoted with approval in the case of N., C. & St. L. Ry. v. Ala. City, 184 Ala. 414, 420, 32 Soutth. 731, 733, which case also fails to state whether or not there was any other railroad at the place in question.

It is claimed by the appellant that, unless discrimination is shown between persons of the same class, the only limit to the right of taxation by license is that it shall not be prohibitive. It is true that there are expressions in some of the cases which refer to that as the criterion, and yet there are expressions in others which refer to the further qualification that no unreasonable burden shall be placed on any business. In the case of Quartlebaum v. State, 79 Ala. 4, in sustaining a license tax on sewing machine companies, this court said: “Much must be left to the discretion of the Legislature, for exact equality of taxation can never be reached. So long as the burden falls with equal weight upon every member of a given class, * * * it is difficult to formulate an argument that such levy violates any provision of our own or of the federal Constitution.”

In the case of City Council of Montgomery v. Kelly, we quoted the passage, above cited, from Lawton v.

*488Steele, 152 U. S. 137, 14 Sup. Ct. 499, 38 L. Ed. 385, and held that an additional burden could not be placed on merchants using trading stamps. — 142 Ala. 552, 558, 38 South. 67, 69 (70 L. R. A. 209, 11 0Am. St. Rep. 43). In that case we said that liberty “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 by being burdened with discriminative taxation.” In the case of Kendrick v. State, 142 Ala. 43, 46, 39 South. 203, 204, in which we sustained a license tax on emigrant agents, recognizing the right of classification, we stated the question to be “whether or not * * * the license tax imposed is so excessive and unreasonable as to amount to a prohibition of the business or, in the language of the Supreme Court of United States in Lawton v. Steele, 152 U. S. 137 [14 Sup. Ct. 499, 38 L. Ed. 385], hinder the guise of protecting the public interests, arbitrarily to interfere with private business, or impose unusual and unnecessary restrictions upon a lawful occupation,’ ” and, as the record did not furnish the data from which the court could say ' that the license was discriminative beyond the legislative power, it was held good. In the case of Gamble v. City Council of Montgomery, 147 Ala. 682, 684, 39 South. 353, in sustaining the license tax required of trading stamp companies, we said: “In the case at bar we have ho evidence that the tax imposed is unreasonable or prohibitive. So far as we know, the defendant could well afford to pay the tax and conduct a lucrative and profitable business.

The Supreme Court of Mississippi, in deciding- that an ordinance requiring skating rinks to close at 6 p. m. and not to open before' 6 a. m. was void, because unreasonable, said, “Into every charter power given a munic*489ipality to pass by-laws or ordinances there is an implied restriction that the ordinance shall be reasonable, consistent with the general law, and not destructive of a lawful business,” and also quotes from Freund on Police Power, § 63, as folloAVs: “There is implied, in every delegation of power to a municipal corporation, a condition that the poAver must be exercised reasonably, and that therefore every unreasonable ordinance is ultra vires, and that the court in treating it as null and void merely enforces the legislative will, and principles or policies embodied in it.” Also from section 158: “The requirement of reasonableness is so general in its nature that it allows the courts to exercise a very efficient control over ordinances, without being under the necessity of formulating in each case a principle which would be a guide for other cases.” — Johnson v. Town of Philadelphia, 47 South. 526, 527 (19 L. R. A. [N. S.] 637). On the other hand, “the poAver to license an occupation or privilege implies the right to fix the amount of the fee, and the action of a municipal body in fixing a fee will only be disturbed, in case of manifest abuse of that poAver.” — Schmidt v. City of Indianapolis, 168 Ind. 631, 80 N. E. 632, 635, 636, 14 L. R. A. (N. S.) 787, 120 Am. St. Rep. 385; Van Hook v. City of Selma, 70 Ala. 361, 365, 45 Am. Rep. 85; Miller v. Mayor, etc., of Birmingham, 151 Ala. 469, 471, 44 South. 388, 125 Am. St. Rep. 31; Mayor, etc., of Birmingham v. Goldstein, 151 Ala. 473, 477 44 South. 113, 12 L. R. A. (N. S.) 568, 125 Am. St. Rep. 33.

While the business of 1098 shows that the telegraph company at Troy was run at a loss, in so far as intrastate business is concerned, yet it is not shown that such is a proper criterion as to the business of a telegraph company from year to year in that city. Moreover, in the estimate of expenses, a proportionate part of the *490office expenses is included, which would have to be paid at any rate, whether any intrastate business was done or not; and we cannot say that the fixing of this license tax was a manifest abuse of power.

The judgment of the court is reversed, and the cause remanded.

All the Justices concur.