141 Ala. 602 | Ala. | 1904
The note or contract sued on was given for an alleged balance of a license tax for the sale of liquors for the year 1901, by Fink & Roegner, the appellant, a business corporation, being security on the note. The evidence is without dispute that the price of the license for carrying on the business of a liquor dealer in the city of Ensley was $500.00; that at the time
We think that there can be im doubt that Section 24 of the act regulates the issuance of license to carry on the business of selling liquor. And, furthermore, that, under the provisions of this section, no license could properly be issued except where the license fee had been paid. It is equally clear to our minds that no other than a cash payment in lawful currency of the United States for the price of the required license, was ever contemplated by the law-makers. There is nothing in the statute from which to infer any intention on the part of the legislature' to authorize the issuance of such a license on a. credit. Section 33 of the act malees it unlawful for any person to engage in the business of selling liquor within the limits of the city of Ensley “Without first having procured a license therefor,” and fixes a penalty for a violation of the statute. It needs no argument to demonstrate the absolute nullity of any motion, resolution, ordinance or by-law, adopted by the mayor and city council inconsistent with the charter provisions, under which they derive whatever authority they may have in the enactment of by-laws and ordinances. The resolution under which the municipal officers acted in making the contract sued on, was unauthorized by any grant in the charter, and inconsistent with its provisions. The contract, therefore, was not only ultra vires, but it was illegal. The case of Bluthenthal & Bickert v. Town of Headland, 132 Ala. 249, is conclusive of this case on the proposition of the illegality of the contract sued on.
The case was tried by the court without a jury, and judgment was rendered below in favor of the plaintiff.
Reversed and rendered.