112 Ala. 179 | Ala. | 1895
David Fleming, having engaged in the business of retailing vinous, spirituous, or malt liquors, without having paid for a license to engage in such business, the State instituted the present action' to recover the amount of the license fixed by statute. The court sustained a demurrer to the complaint, and the State declining to amend, there was a verdict and judgment for the defendant. The principal grounds of demurrer are that the action is in form upon a contract, and the complaint on its face negatives the existence of
In one sense, there is no element of contract in taxation, in that the taxing power imposes the tax' and enforces its collection whether the party taxed assents or dissents. In fact, as to the particular assessment upon property, according to the provisions of a valid statute, he is not consulted; and yet the action of debt is a common remedy for the collection of taxes, which are specific and definitely ascertained by law. — 5 Enc. Pl. & Prac., pp. 908, 909, and authorities; Perry County. v. Railroad Co., 58 Ala. 546. Questions frequently arise as to whether the power conferred upon municipalities is that of taxation or mere regulation, but these questions cannot often arise as to the power of legislatures. A tax which applies to all of a class alike is not obnoxious to the constitutional provision which prohibits unequal discrimination. That the legislature has authority to exercise police power over certain avocations of life, and at the same time power to tax these avocations for the purpose of revenue, is clear.
The amount required by the State for the privilege of engaging in the business of retailing spirituous liquors is a tax for the purpose of revenue. Section 629 of the Code of 1886 reads as follows: ‘ ‘Persons required to take out licenses and prices to be paid therefor. — Licenses are required of all persons engaged in, or carrying on any business, or doing any act in this section’ specified, for which shall be paid, for the use of the State, the following taxes, to-wit,” etc. In subdivision 3 of this section it is provided that retailers of spirituous, vinous or malt liquors in any city or town of more than 10,000 inhabitants shall pay $300. The decisions of the State are uniform that the license is a tax for reveenue. — Hirschfelder v. State, 18 Ala. 112; Harris v. State, 50 Ala. 127; Weil v. State, 52 Ala. 19; McPherson v. State, 54 Ala. 221; Moore v. State, 16 Ala. 411. The statute declares (section 629, supra), that the license is a tax “for the use of the State.” The amount is specific and ascertained. Unless there be some statute or principle of law, debt is the proper action to recover the tax.— Chandler v. Hanna, 73 Ala. 390; Janney v. Buell, 55 Ala. 408.
This brings us to the consideration of the second ques
Construing all these sections together, we have 'no doubt the legislature, in providing for the issue of a license, for retailers of spirituous liquors, intended to exercise its taxing power to raise revenue for the use of the State, as declared in the revenue act itself, and at the same time to exercise its police powers in the interest of public morals: Section 3892 of the Criminal Code was intended to secure the prompt collection of the tax imposed upon the business for which a license is required, and at the same time conserve the public morals. It was not intended that the tax should be collected by indictment and fine, for upon conviction, the fine does not go to the use of the State, as the statute declares it must, when collected, but goes to the county, for other purposes. We then have the case as one where a specific, ascertained amount is imposed as' a tax for the use of the State, and no special statutory provision for the collection of the tax is provided. In such cases, upon principle and authority, the proper action is debt. — 25 Am. & Eng. Enc. of Law, pp. 312, 313, and notes; Perry County v. Railroad Co., 58 Ala. 546. The complaint is not subject to the grounds of demurrer assigned, and the court erred in sustaining the demurrer.
Reversed'and remanded.