134 Ala. 636 | Ala. | 1902
The mayor and aldermen of Tuscaloosa are authorized by the charter of that city “to levy and collect annually a tax on and to regulate and license the persons, businesses, vocations and privileges” therein mentioned, to-wit “* * * millinery establishments; * * * each person or firm engaged in merchandising or carrying on any business of a mercantile character,” etc., etc. The mayor and aldermen of the city in attempting to exercise the power thus conferred passed an ordinance levying license taxes upon a great number of persons, businesses, occupations and privileges, and, among the rest, the following:
*638 “Art, 87. ■ Millinery establishments not paying 'merchants tax..........................$10.00
Art, 88. Merchants selling millinery, in addition to merchants licenses..................$7.50
Art. 89. Merchants, each person, or persons, or firm engaged in merchandising or carrying on any business of a, mercantile character whose gross receipts of sales are less than ten thousand dollars per annum ..................$10.00
Art, 90. Merchants whose gross amount of sales exceed ten thousand dollars and less than twenty thousand dollars per annum........$15.00
Art. 91. Merchants whose gross sales exceed twenty thousand dollars per annum........$20.00.”
The appellee Holczstein during the year 1901 engaged in a mercantile business, selling dry-goods, clothing, and also as a part of his stock kept and sold a cheaper grade of ladies’ hats, also sold laces, ribbons and artificial flowers, hut he did not trim or make any hats. A license was paid for and issued to him for the year 1901 for engaging in the business of merchandising, or being a merchant, but lie did not taken out or pay for the milliner’s license prescribed by Art. 87 of the ordinance quoted above, nor the license required by Airt, 88 of said ordinance. lie. was proceeded against by the city authorities for sidling millinery .without having taken out and paid for the license required by Art. 88 of the ordinance, and tried before» the mayor and convicted. From that conviction he appealed to the circuit court, where upon a trial before the circuit judge Avithout a jury lie Avas discharged, the trial judge holding that Art, 88 of said ordinance is invalid. And that, is the question presented for our consideration on this appeal prosecuted by the mayor and aldermen from the judgment of the. circuit court.
It seems to us that the .legislature, itself in conferring the. poAver of license taxation on the municipality of Tuscaloosa took and made a clear distinction between the “millinery establishments” and the business of merchandising or carrying on “a business of a mercantile char
Reliance for appellant is had on the cases of City of Mobile v. Craft, 94 Ala. 156, and City of Mobile v. Richards & Sons, 98 Ala. 594. Those decisions are perfectly sound, and the views we have expressed and conclusions we have reached in this case are in no degree opposed to them. The question in those cases is wholly different from the question we have here passed on, as a careful reading and consideration of those opinions will suffice to demonstrate. There would be similitude if the legislature had only authorized the city of Mobile to impose taxes on cigar makers and distillers of whiskey, and also upon merchants, and the ordinance had undertaken to impose on a general merchant a tax as a merchant and an additional tax for selling whiskey or cigars as. a part of his mercantile business; but if that had been the state of law and fact presented to this court in those cases, the imposition of the tax would surely have been held unauthorizeld and illegal.
The judgment of the circuit court must be affirmed.