Van Hook v. City of Selma , 70 Ala. 361 ( 1881 )

SOMEBYILLE, j.

Section 1 of an act of the General Assembly, approved February 12, 1879, so amends the charter of the city of Selma, as to authorize its corporate authorities “to have and exercise all the police powers and jurisdiction, conferred by the charter of the city,” within a specified terrk tor.y, adjoining and outside of the city limits.—Acts 1878-79, pp. 454-5. And it is provided, in the same section, that these powers are conferred, among other purposes, “ for regulatifig and licensing the sale of * * goods, wares and merchandise.” — lb.

An ordinance was passed, requiring a license of ten dollars to be paid, by all persons engaged in selling goods, wares ánd merchandise; and, on prosecution instituted against the appellant, he was bonvictecl of a violation of this ordinance, and fined in the sum of ten dollars by the mayor’s court. On appeal to the Circuit Court of Dallas county, this judgment of conviction was sustained; and,-thereupon, an appeal was taken to this court. '

The question presented for our consideration is the validity of the ordinance exacting this license.

The power of the State to authorize the license of all classes of trades and employments cannot be doubted. And there is just as 'little doubt of the power to delegate this right to municipalities, either for the purpose of revenue, or that of regulation.—Ex parte City Council, in re Knox, 64 Ala. 463; Cooley on Const. Lim. 581.

The right here conferred is, to regulate and license for police purposes merely; and the power to license for the purpose of revenue is -not to be inferred. It is, indeed, excluded by the clearest implication. — 2 Dillon Mun. Corp. § 768.- Tt seems well settled by authority, that the power to license, if granted as a police power, must be exercised as ai means of regulation only, and cannot be iised as a source of revenue.—R. R. Co. v. Hoboken, 41 N. J. (Law), 71; Mayor v. R. R. Co., 32 N. Y. 261; 1 Dill. Mun. Corp. § 359, note 1.

The police power has been held to embrace the protection of the lives, health, and property of the-citizens, the maintenance of good order and quiet of the community, and the preservation of the public morals.—Beer Co. v. Massachusetts, 97 U. S; 25; Thorpe v. R. R. Co., 27 Vt. 149.

A license for .regulation, therefore; in such sum as may be reasonably necessary to promote these objects, in tlie district where the ordinance imposing it is designed to operate, may be construed to be tbe exercise of tbe police power, and not of tbe power of taxation.—2 Dillon Mun. Corp. § 768.

In determining this question, the amount of the license may be regarded, inasmuch as an unreasonably exorbitant exaction would be prohibitory, and not regulative, and for this reason ultra vires, as an. exercise of the authority conferred by the city, charter.—Ex parte Burnett, 30 Ala. 461, 467. So, the amount would be pertinent, in determining whether the license was one for regulation merely, or for revenue.—Youngblood v. Sexton (32 Mich. 406), 20 Amer. Rep. 654; 1 Dill. Mun. Corp. § 35.7, note 2.

Where police regulation alone is the object of a license, there is a conflict among the authorities, as to the rule governing the amount that may be charged for such license. The nature of the occupation, trade or profession, authorized to be licensed, has, of necessity, much to do with it. In the case of such as are useful and beneficial to the community, the license charged should not, ordinarily, be so great as in case of those not useful or beneficial, especially when immoral in their nature or tendency.—Cooley on Tax. 396-7; 1 Dill. Corp. § 357. The amount may. also, be graduated according to the populousness of the city or community in which the privilege is to be exercised.—Ex parte Marshall, 64 Ala. 266. There are authorities holding that, if the sum required for such license exceeds the expense of issuing it, the act transcends the licensing power, and imposes a tax; at least, in the case of useful trades and employments. It is said in Dillon on Municipal Corporations, that as an exercise of police power in such cases, “ a reasonable fee for the license and the labor attending its issue may be charged.” —1 lb. § 357, (3d Ed.) Cooley, in his work on Constitutional Limitations, states the principle as follows : “A right to license an employment does not imply a right to charge a license fee therefor with a view to revenue, unless such seems to be the manifest purpose of the power; but the authority of the corporation will be limited to such a charge for the license as will cover the necessary expenses of issuing it, and the additional labor of officers, and other expenses thereby imposed Cooley Const. Lim. (4th Ed.) p. 245 [201]. Very certain it is, that the courts ought not to scrutinize the amount of the license too narrowly, with the view of adjudging it a tax, where it does.not appear to be unreasonable in amount as a mere regulation.—lb. p. 246 [202], note 1, and authorities cited.

We declare the true rule to be, in the case of useful trades and employments, and' a fortiori in other cases, that, as-an exercise of police power merely, the amount exacted for a license, though designed for regulation and not for revenue, is not to be confined to the expense of issuing it;' but that a reasonable compensation may be charged for the additional expense of municipal supervision over the particular business or vocation, at the place where it is licensed. For this purpose, the services of officers may be required, and incidental expenses may be otherwise incurred in the faithful enforcement of such police inspection or superintendence.—Ash v. People, 11 Mich. 347; Carter v. Dow, 16 Wis. 298; Tenney v. Lenz, 16 Wis. 566 State v. Herod, 29 Iowa, 123; Cooley on Const. Lim. (4th Ed.) 245 [201], and note 1 on p. 246, with cases cited; Ex parte Marshall, 64 Ala. 266.

The rule further applies here, that, when the question as to the reasonableness of a municipal by-law or city ordinance is raised, and it has reference to a subject-matter within the corporate jurisdiction, it will be presinned to be reasonable, unless the contrary appears on the face of the law itself, or is established by proper evidence.—Commonwealth v. Patch, 97 Mass. 221; St. Louis v. Weber, 44 Mo. 550. Tinder these principles, we cannot judicially know that the amount of the license exacted of the appellant in this case, which was the sum of ten dollars, was unreasonable. The contrary is presumptively true.

We do not think there is any question of the power of the General Assembly to pass an act of this character, extending, for police purposes merely, the limits of a municipality, and conferring power on the city authorities to pass by-laws operating for such' purpose beyond the corporate limits.—Chicago Co. v. Chicago, 88 Ill. 221. The special constitutional provisions in reference to taxation have no reference to license taxes. Ex parte City Council, in re Knox, 64 Ala. 463; 1 Dillon Mun. Corp. § 358, note 1. And, in the absence of some constitutional inhibition, State or Federal, the power of the General Assembly, in matters of a purely legislative character, is without limitation.—Davis v. State, at the last term; Dorman, v. State, 34 Ala. 216.

The charge of the Circuit Court was in accordance with these views, and its judgment is affirmed.