Appellee filed suit in the Circuit Court of Jefferson County, Alabama, equity division, against appellants seeking a declaratory determination оf the validity of an ordinance passed by the Town of Warrior, locаted in Jefferson County.
The ordinance, as it appears in the complaint of record in this appeal, levies on each wholesale or retail beer dealer doing business within the corporatе limits of the town a privilege license tax in the sum of $5,000.-00.
The complaint is that the levy is unreasonable, excessive, prohibitory, discriminating, and violаtive of complainant’s constitutional rights under certain designated provisions of the Federal and State Constitutions.
The respondents, separately and severally, addressed demurrers to the complaint, which the trial court overruled. From this decree, the respondents aрpeal to this court.
One ground of demurrer, together with others of like import, is that there is no justiciable issue or controversy between the сomplainant and any of the respondents.
The amended complaint (Paragraph 7A) alleges “that he (complainant) is prepared to enter the business of selling beer, malt beverages and ale in the police jurisdiction, but not within the corporate limits, of the Town of Wаrrior, Alabama.” (Par. Supplied)
The complaint in the record before us fails to aver that the respondent, Town of Warrior, imposes or levies any privilege
Thеrefore, there is no justiciable issue or controversy shown in the complaint between complainant and respondents. For aught aрpearing in the complaint, complainant is privileged to proceed to sell beer within the 'police jurisdiction without impediment or the payment of any license tax ■or fee to respondents.
We have held in Shadix v. City of Birmingham,
There must be a justiciable сontroversy between the parties where legal rights are thwarted or affected to warrant proceedings under the Declaratоry Judgment statutes. Title 7, §§ 157, 159,166, Code of Alabama 1940. Alabama Independent Service Station Ass’n v. McDowell,
It is to be noted that this appeal was taken before the enactment by the legislature of Act No. 72, General Acts, Extra Session 1961, page 1947, approved September 15, 1961, which provides that no appeal shall be taken from any decree rendered in equity sustaining or overruling a demurrer to a bill in equity, or to a cross bill, wherе there has been no final determination of the cause. This act will sеrve as a guide for any future appeal in this case.
For error оf the trial court in overruling the demurrers of the several respondents tо the complaint, we are of opinion that the decree should be reversed and the cause remanded for further proceеdings. It is so ordered.
The foregoing opinion was prepared by B. W. SIMMONS, Supernumerary Circuit Judge, while serving on the Supreme Court at the request of the Chief Justice, and was adopted by the court as its opinion.
Reversed and remanded.