Ex parte Marshall , 64 Ala. 266 ( 1879 )

STONE, J.

My own opinion is, that a rule nisi should be awarded in this case. The taxes and assessments, authorized by the act “ To regulate the system of public schools in the county of Mobile,” approved January 16th, 1854, although some of them are laid on occupations usually assessed byilicenses, are, nevertheless, simply taxes for revenue purposes. — Pamph. Acts 1853-4, page 190; lb. 2b5. The purpose of each act was to aid in the support of common schools throughout the whole of Mobile county, the benefits of which are distributed and enjoyed throughout the county. Yet, in the 4th section, subdivision 3, of the act first named, it is provided, “ The following license-taxes shall also be collected by the judge of probate of Mobile county, for the use of said Mobile school commissioners : * * to authorize the retailing of spirituous liquors in the city of Mobile, fifty dollars.” This is a clear case of levying a tax from a limited area, the city of Mobile, to be used and disbursed in the maintenance of the common schools over a much larger area, the county of Mobile. And, speaking of the levy of these license-taxes, in the' act “ To amend the school law of Mobile county,” approved February 14th, 1854 (page 235), the legislature “ declared, that the purpose of said act, in affixing rates of license, was not to authorize any of the employments, amusements, games, sports, tables or alleys, but to impose an additional tax thereon.” These extracts show clearly, to my mind, that the purpose of this levy was revenue- — -revenue for the support of the common-school system of Mobile county — and not a police regulation of the traffic in spirituous liquors. We have, then; the case of a tax levied on one community, for the benefit, not alone of that community, but for the common benefit of that and a much larger community, not similarly taxed. It will not be denied that this extra license-tax, if its purpose be simply revenue, is violative of the fundamental, constitutional principle on which the right of taxation rests. — Cooley on Taxation, 128-9; II. 396; Burroughs on Taxation, 68; lb. 392; Durack’s appeal, 62 Penn. St. 491; Washington Avenue, 69 Penn. St. 352; Lin Sing v. Washburn, 20 Cal. 534.

My brothers, however, are of a different opinion. They think the statute in hand is a police regulation, so far as it provides for a tax on licenses; and inasmuch as the price of a license may be graduated by the populousness of the community in which the privilege is to be exercised, and by the profitableness of the employments, amusements, games, &c., it authorizes, this assessment is not obnoxious to the objection that it is not levied equalLy throughout the taxable district. In Holt v. School Commissioners, 29 Ala. 451, the question arose under that clause of the act of January 16th, 1854, which levied an additional tax on licenses to retail spirituous liquors in the city of Mobile. It was urged in that case, that the act of 1854, for violating which Holt was sued by the school commissioners, was repealed by the later statute of 1856. This court affirmed the judgment in favor of the plaintiffs. That case was argued by two eminent counsel, who, for many years, have held high rank among the distinguished lawyers and jurists of this State. If the extra tax on retailers, which we have been considering, is unconstitutional now, it was then. If it had been then shown to be unconstitutional, that would have secured a reversal, and a failure of the suit. Those able lawyers did not make the point, nor was it considered by this court. This, together with acquiescence in the statute for a quarter of a century, gives strength to the views of my brothers.

The present case has been well and ably argued, and has been the subject of full and free discussion. 1 have no wish to elaborate my views, or to attempt to weaken the force of the argument in support of tbe validity of the tax.

The writ of mandamus is denied.