44 So. 113 | Ala. | 1907
The defendant Avas arrested and tried for a violation of the city ordinance, requiring persons engaged in the dairy business to taire out a license. The
The matter in controversy is as to the validity or invalidity of the ordinance in question. The appellee (sustaining the action of the court below) contends that the ordinance “is in contravention of public policy, is unreasonable, in restraint of trade, is class legislation, it attempts to impose unequal taxation, does not impose a fair and equal tax upon all persons and all property alike, is an attempt to tax cows, whether owned in or out of the city, regardless of their value, and regardless of the amount of milk or butter produced.”
The first point to be decided is whether or not this is a tax on property. The wording of the ordinance itself answers that question very clearly. It does not provide that there shall be levied upon the following property a tax, etc., but ordains a schedule of license for divers “business, vocations, occupations and professions, engaged in or carried on in the city of Birmingham, Alabama, and each and every person,” etc., “engaged,” etc., “shall pay for and take out a license,” etc.; and in the clause above set out it is the dairyman who takes out the license, and the amount to be paid is regulated by the number of cows used in the production of the milk or butter. So it is clearly a license tax on the occupation. In a case in which banks were required to pay a license tax, graduated by the amount of paid-up capital
The charter of the city of Birmingham confers ample power to license, tax, and regulate all kinds of business, and provides that this power “may be used in the exercise of the police powers, as well as for the purpose of raising revenue, one or both.” It also confers full powers for the inspection of food products, mentioning specially “all dairies in the county of Jefferson, the owner of which in any manner disposes of milk in said city,” and to require the payment of reasonable charges for such inspection. — Loc. Acts 1898-99, p. 1391. There can be no question, then, of the power of the city of Birmingham to tax this occupation, either as a police measure, or a revenue measure, or for both. In further illustration of the principle that this is merely a license tax on tbe'occupation, and not in any sense a tax on the property, this court has held that a tax on the gross amount of the sales of a-merchant is not a tax on the goods themselves, or on the fruits of the sales, but on the business of selling. — Goldsmith v. Mayor, etc., of Huntsvills, 120 Ala. 182, 185, 24 South. 509; Saks v. Mayor, etc., of Birmingham, 120 Ala. 190, 24 South. 728.
Wherein, then, consists the unconstitutionality? It is settled that our constitutional provision with regard
Where a license tax was imposed on railroad companies doing business in the state, it was held that a license tax “for each main line of railroad used in connection Avith such business” was legal, and that one company operating several lines must pay the license tax for each line. — City of Anniston v. Southern Railway Co., 112 Ala. 558, 566, 20 South. 915, 916. Also, that a license tax on retail merchants, graded according to the amount of stock employed in the business, is a tax on the business, and valid. — Saks v. Mayor, etc., of Birmingham, 120 Ala. 190, 24 South. 728; Goldsmith v. Mayor, etc., of Huntsville, 120 Ala. 182, 24 South. 509-LikeAvise, Avhere a license tax for vehicles used in transportation was fixed at $7.50 for each vehicle so used, it was held that the tax was not on the vehicle, but was simply a means for ascertaining the tax to be imposed
It has long been the law in this state that peddlers traveling in a wagon drawn by two horses paid a different license tax from that paid by those who use a one-horse wagon. We hold, then, that in this case the 50 cents per cow was simply a method adopted for differentiating the dairymen according to the amount of business done, and that the ordinance is valid.
The judgment of the court is reversed, and the cause demanded.
Reversed and remanded.