Osborne v. Mayor of Mobile , 44 Ala. 493 ( 1870 )

PETERS, J.

The record shows that the-oorporate government of the city of Mobile, in this State, passed an ordinance on the 2d day of March, 1866, of which the following sections were a part, viz:

“ Sec. 2. Every express company or railroad company who shall do business in the city of Mobile, and whose business extends beyond the limits of the State, shall pay an annual license of five hundred dollars, which shall be deemed a first grade license; if within the limits of the State, one hundred dollars, and shall be deemed a second grade license; and if within the limits of the city of Mobile, fifty dollars, which shall be deemed a third grade license.” ******

' “ Sec. 35. Any person or persons, or incorporated companies, doing business or pursuing any avocation without 'obtaining the proper license, or who shall violate any of the provisions of this ordinance, shall be subjected to a fine not exceeding fifty dollars for each and every day’s violation thereof, to be imposed by the mayor and collected as other fines.”

It also appears that Frank B>. Osborne, the agent of the Southern Express Company, doing business in the city of Mobile, was, on or about the 10th day of February, 1869, fined by the mayor of said city the sum of twenty-five dollars for a violation of this ordinance. This suit was taken by said Osborne, by appeal, to the circuit court for the county of Mobile, in this State, and submitted to the court on an agreed state of facts. The judgment against Osborne in the mayor’s court was affirmed, in the said circuit court, at its spring term, 1869. And from this judgment of the circuit court said Osborne appealed to this court. The only question insisted on in said circuit court, and again relied on in this court, is, that said ordinance, as to said express company, is unconstitutional and void, and that said express company is not bound to pay the tax for said license thus levied.

The grounds urged for this exemption, as I understand them, as set out in the brief of the learned counsel for the appellant, are, that said ordinance attempts to regulate commerce between this State and other States of the Union, and with foreign States, and imposes a duty on exports and imports, without the consent of congress.

The learned counsel for the appellant refers the court to article 1, section 8, part 3; article 1, section 9, parts 5 and 18; article 1, section 10, part 2, of the constitution of the United States, and the acts of congress to enforce these clauses of the constitution, as the grounds of objection to this ordinance. The acts of congress above mentioned are but an effort to carry into legislative effect the constitutional provisions above referred to. They do not narrow the powers of the State.

Most clearly, the license tax levied by the corporation of the city of Mobile upon the express company, for the privilege to carry on its business in said city, is no export or import duty, either upon foreign trade or the trade between the States of the Union. These terms have been too clearly and repeatedly defined to allow any doubt of their signification now. This is a tax for “ a license to do business,” by the express company, within the limits of the city. It has nothing to do with the character of the goods and merchandise that the company may transport, or whether they may or may not transport any goods or merchandise at all. An import or export duty or tax is a tax levied directly upon the article imported or exported; that is, brought into the State or carried out of it. — Brown v. The State of Maryland, 12 Wheat. 419, 437, 438; Passenger Cases, 7 How. 283. This is not a license to export or to import. It does not, then, infringe either of the sections of the constitution referred to.

Neither is it a tax “ to regulate commercewhich is prohibited to the States. To regulate commerce, is to prescribe a rule by which it is to be governed.— Gibbons v. Ogden, 9 Wheat. 196; Story’s Const. § 1061; Story’s Const. § 1061, note 2. This is nothing of that kind. The company can conduct its business as it pleases, and charge what rate of fees for transportation it pleases. Express companies are common carriers, and this ordinance does not interfere with their duties, as such, in the slightest. It is simply a tax for license to conduct their business in the city of Mobile, and not a regulation of the business itself. It can not therefore be obnoxious to the constitutional provisions above cited. — Baldwin v. The American Express Co., 22 Ill. 197; S. C., 26 Ill. 504; Southern Express Co. v. Caperton, January term, 1870.

The State may delegate its power to tax or grant licenses to a municipal corporation within the limits of such corporation. This has been done in this case. — Battle v. The Corporation of Mobile, 9 Ala. 234; Intendant of Marion v. Chandler, 6 Ala. 899; Eastabrooks v. The State, 6 Ala. 653; Lott v. Mobile Trade Co., June term, 1869, Head-notes, p. 20; West v. Corporate Authorities of Greenville, 39 Ala. 69; Intendant of Greensboro v. Mullins, 13 Ala. 341.

The power of the State to levy taxes and to impose licenses extends to every species $>f property, and to all occupations within the State, except where this power is expressly limited by the constitution of the United States, or by the constitution of the State itself. It has already been shown that the power here exercised does not infringe the constitution of the Union, and it is not forbidden by the constitution of the State. It is, therefore, legal.— Crandall v. State of Nevada, 6 Wallace, 35; Weston v. City Council of Charleston, 2 Peters, 449; Chief-Justice arguendo, Prov. Bank v. Billings et al., 4 Peters, 515, 516; Nathan v. Louisiana, 8 Howard, 79, 82; Hinson v. Lott, 8 Wallace, 148; Woodruff v. Parham, 8 Wallace, 123; Waring v. The Mayor, &c., 8 Wallace, 110; Paul v. Virginia, 8 Wall. 168; Marshall, C. J., arguendo in McCulloch v. The State of Maryland, 4 Wheat. 316.

A State law, and, for a like reason, the law of a State municipal corporation, will not be declared unconstitutional unless it is clearly not in conformity with that instrument. Fletcher v. Peck, 6 Cr. 87.

The court below did not err. The judgment of the circuit court is, therefore, affirmed at appellant’s costs.