State v. FlemingState v. Fleming
- Reporters:
- Before:
- Coleman
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 thе present action’ to recover the amount of the license fixed by statute. The court sustained a demurrer to the complаint, 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 *183any contractual rеlation; and, second, that the only remedy in such cases is by indictment.
In one sense, there is no element of contract in taxation, in thаt the taxing power imposes the tax’ and enforces its collection whether the party taxed assents or dissents. In fact, as to thе 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 lаw. — 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 nоt obnoxious to the constitutional provision which prohibits unequal discrimination. That the legislature has authority to exercise poliсe power over certain avocations of life, and at the same time power to tax these avocations for thе purpose of revenue, is clear.
The amount required by the State for the privilege of engaging in the business of retailing spirituous liquors is а tax for the purpose of revenue. Section 629 of the Code of 1886 reads as follows: ‘ ‘Persons required to take out licenses аnd 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*184tion raised by the dеmurrer, and that is whether the statute has provided a remedy ‘ ‘which is specific and exclusive” for the collection of the tax. This contention is based solely upon section 3892 of the Criminal Code of 1886, which reads as follows : “Anypérson who * * * engages in or carries on any businеss for which a license is required, without having taken out such license must, on conviction, be fined three times the amount of the State licеnse.” The fact that the amount £>f the fine is regulated by the amount of the license imposed by the State as a tax for revenue in no way supports the contention that the fine becomes a part of the revenue when collected by indictment. Section 4894 of the Criminal Code of 1886 reads as follows: “All fines go to the county in which the indictment was found or the prosecution commenced, unless otherwise expressly provided ; and judgment therefor must be entered in favor of the State, for the use of that particular county.” Indictments in сases of misdemeanors, unless otherwise provided, are left to the discretion of the grand jury. We cannot reasonably conсeive that it was ever intended that the collection of taxes, whether collected upon property or imposed upon avocations, • should be left to the discretion of the grand jury, to be exercised, perhaps, differently under like circumstancеs, or that the liability for taxes should be established beyond a reasonable doubt. It must be borne in mind that the present action is not to reсover the penalty imposed for the violation of a statute. It may be that if the suit was for the amount of the fine, that is, three times the amount of the taxes, it could not be done except by indictment. The act of 1848 expressly provided that the fine should be recovered by indictment. This provision, that the fine -should be recovered by indictment, has not, however, been continued in the later acts, and the stаtute and fine are subject to the same rules and regulations as other criminal statutes. Section 631 of tb‘e Code of 1886 is as follows : “It shall bе unlawful for any person, firm or corporation to engage in or carry on any business, or do any act for which a license is by law rеquired, without having first paid for and taken out a license therefor in the manner in this article provided.” No penalty is provided in this statute, and but for section 3892 of the Criminal Code, stt/pra, the penalty for a violation of- section 631 would be *185covered by section 4192 of the Criminal Code, which provides that, for a commission of a misdemeanor, whether a misdemeanor by common law or made so by statute, when no specific punishment is prescribed, on conviction the party shall be fined not more than $500, and may also be imprisoned. Seсtions 1819 and 1320 of the Code of 1886 forbid the granting of a license to any one, except upon certain conditions therein prescribed .
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 аct itself, and at the same time to exercise its police powers in the interest of public morals: Section 3892 of the Criminal Codе 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 cоnviction, the fine does not go to the use of the State, as the statute declares it must, when collected, but goes to the county, fоr 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.