City of Mobile v. Kierman , 170 Ala. 449 ( 1910 )

SAYRE, J.

The reporter will state the facts. The plaintiff has nothing upon which to stand in a court of law. The unofficial action of a majority of the general council of the city of Mobile, by which they promised to vote to grant the petition of the Jones M. Withers Camp asking that the “street fair” be relieved of all city licenses, was of no legal consequence. The legislative authority of the municipality was vested in its council as an organized body, and its will could be expressed only in the manner prescribed by the law of its creation. The members of the general council, acting separately and severally, could do nothing. — McQuil-lan, Mun. Ord. § 91.

The subsequent adoption by the council of a motion that the petitioner be exempted from the payment of a license tax and the money refunded was of no more effect than the previous promise. It was void for lack of authority. “The power to exempt from taxation, like the power to tax, is an incident of sovereignty, and cannot be exercised by a municipal corporation, unless such power has been granted by the state.”—Thomas v. Snead, 99 Va. 613, 39 S. E. 586. Judge Cooley, in his work on Taxation (3d Ed.) p. 344), discussing the question of equality and uniformity in taxation, says: “Pertaining as it does to the sovereign power to tax, the municipalities of a state have not the exempting power, except as they are expressly authorized by the state. And obviously it is not competent to confer a general power to make exemptions, since that would be nothing short of a general power to establish inequality.” He cites a number of cases.

Section 4B of tbe act to establish a charter for the city of Mobile (Acts 1900-01, p. 2342), which was the charter of the city at the time of the transaction in question, provided that the general council should have “authority to assess and collect from all persons or corporations trading or carrying on any business, trade, or profession, by an agent or otherwise, within the limits of said corporation a license tax.” Appel-lee contends that this authority did not reach to the case in hand, because so far as Camp Withers was concerned the enterprise was purely charitable. The state may exempt charities. This upon the ground that they perform a public service by relieving, to some extent at least, the state from expense. — Cooley, Tax. 348. But the state has not done so, nor had it empowered the municipality to do so. Besides, here the ends of business and charity were combined; charity on the part of the camp of Confederate Veterans, business on the part of the amusement company. The camp’s connection -with the enterprise was to furnish the license and receive an agreed per centum of the net proceeds. The amusement company carried on its business for gain and profit. Its connection, with the charity was no doubt considered and was in fact no doubt a part of its stock in trade. It furnished the amusements and carried on the business. Its character and liability to taxation as a business concern were not to be avoided by devoting, for a consideration, a per centum of its profits to a charity. We feel entirely sure that the business so carried on was liable to taxation, along with every other business of like character.

Judgment should have been rendered for the defendant.

Reversed and remanded.

Dowdell, C. J., and Anders'on and Evans, JJ., concur.