The City of Jasper is a municipal corporation authorized to levy privilege licenses on retail merchants. The governing authority of that city on December 26, 1950, adopted an ordinance, effective January 1, 1951, pertinent parts of which read as follows:
* * * * * *
Luther Franks and Clayborn Guin, as partners, have for several years been engaged in the operation of a general mercantile and grocery business known as Franks & Guin Grocery Company, within
The city of Jasper, on August 8, 1952, filed its bill in the circuit court of Walker County, in equity, against Luther Franks and Clayborn Guin, doing business as Franks & Guin Grocery Company, and Luther Franks and Clayborn Guin, individually.
The bill was filed under the authority of Art. 4, Chapter 15, Title 37 of the 1940 Code of Alabama. The pertinent sections of that article are 760, 761, 762 and 767, which read:
* * * * * *
Upon the presentation of the bill to the trial court, August 22, 1952, was fixed as the day for the hearing on the prayer for temporary injunction. The record before us fails to disclose that any such hearing was had or that a temporary injunction was ordered.
The respondents' demurrer was overruled on September 5, 1952, whereupon they filed their answers on the same day, which appears to have been the day set for the trial of the cause. The answer, aside from denying all of the material averments of the complaint, averred in substance that the city
Testimony was taken orally before the trial court. On the same day the testimony was taken, the trial court rendered a final decree, in pertinent parts as follows:
The total sum of $157.25 which the trial court found to be due the city of Jasper by the respondents included "the sum of fifty dollars ($50.00) as license for the privilege of operating a rolling store in connection with the operation of respondents" business, together with a penalty as provided for in said license ordinance of ten per cent of the amount of the license for failure to purchase the required license, making a total of fifty-five dollars ($55.00) plus fifty cents (50¢) issuance fee, for issuance of the license for the privilege of operating a rolling store."
From the decree of September 5, 1952, the respondents perfected their appeal to this court on October 4, 1952.
The cause was submitted here on April 21, 1953. Submission was had on the merits and on motion of appellee, the city of Jasper, to dismiss the appeal.
Motion to Dismiss Appeal
The only ground of the motion to dismiss the appeal which is insisted upon is that appellants failed to file the transcript in this court within sixty days from the date on which the appeal was taken, as required by § 769, Title 7, Code 1940.
Section 767, Title 37, Code 1940, quoted above, provides that appeals in cases of this kind must be taken within thirty days from the rendition of a final decree. This was done. That section further provides that this court shall have jurisdiction of such appeals as in other equity suits.
Section 769, Title 7, Code 1940, provides that in equity cases the transcript shall be filed in the office of the clerk of this court within sixty days from the date of the taking of the appeal.
The first call of the Sixth Division after the appeal was taken commenced on the fourth Monday in November, 1952 (November 24, 1952)—less than sixty days from the date on which the appeal was taken. The next call of the Sixth Division commenced on the third Monday in April, 1953 (April 20, 1953). See § 22, Title 13, Code 1940.
Appellees filed their motion to dismiss on April 10, 1953. The transcript was filed with the clerk of this court on April 18, 1953, before the commencement of the first
In the case of McCoy v. Wynn, 215 Ala. 172, 173, 110 So. 129, 130, we held a motion to dismiss the appeal to be without merit under circumstances similar to those of the present case. It was said in the McCoy case, supra, as follows:
The case of Parker v. Bedwell, 243 Ala. 221, 8 So.2d 893, is distinguishable on the facts. In that case the transcript was not filed until long after the first call of the division held more than sixty days after the appeal was taken.
In support of their motion to dismiss appellees rely upon our holding in the case of Deaton v. Deaton Truck Lines, 242 Ala. 91, 4 So.2d 895, 896. In that case we held that the provisions of § 769, Title 7, Code 1940, allowing sixty days from the day of taking an appeal in equity cases generally, are not applicable to appeals from orders granting or refusing injunctions, but that the provisions of § 1057, Title 7, Code 1940, control as to time of filing transcript in such cases. Section 1057, Title 7, supra, reads:
The holding in the Deaton case, supra, must have come to the attention of counsel for appellee after the motion to dismiss the appeal was filed, because the ground of the motion to dismiss, as pointed out above, is that appellants have failed to comply with the provisions of § 769, Title 7, Code 1940, not that they have failed to comply with the requirements of § 1057, Title 7.
However, we are of the opinion that the holding in the Deaton case, supra, has no application to appeals from decrees rendered in proceedings instituted under the provisions of Art. 4, Chapter 15, Title 37, Code 1940. Such appeals, as previously noted, are provided for in § 767, Title 37, and the language of that section, in our opinion, clearly shows a legislative intent that the appeals be submitted here as are equity cases generally, except that the appeal must be taken within thirty days from the date on which the decree was rendered.
Under the holding of this court in McCoy v. Wynn, supra, the motion to dismiss the appeal is without merit and is due to be and will be overruled. It is so ordered.
On the Merits
The first assignment of error is to the effect that the trial court erred in overruling respondents' demurrer to the bill of complaint. No mention is made of this assignment of error in brief filed here on behalf of the appellants, respondents below, hence it will not be considered. Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509; MacMahon v. City of Mobile, 253 Ala. 436, 44 So.2d 570; Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838.
Under appropriate assignments of error, appellants argue that the decree appealed from is erroneous in its entirety for two reasons.
It is said that the provisions of the ordinance which relate to the licensing of businesses within the police jurisdiction of
It is true that § 2 of the ordinance does not contain the language of § 1 to the effect that the licenses are levied for the year 1951 and for each calendar year thereafter. But even if it be assumed that the provisions of § 1 as to the duration of the levy have application only to businesses carried on within the corporate limits, the provisions of § 11 of the ordinance, copied above, are a complete answer to this insistence of appellants. It is not contended the provisions of the ordinance adopted December 26, 1950, have been repealed or superseded by the adoption of any other ordinance. We hold that there is no merit in this contention.
It is next insisted that as applied to appellants, whose place of business is without the corporate limits but within the police jurisdiction of said city, § 2 of the ordinance is void in that it was enacted for the purpose of raising revenue rather than regulation and supervision.
The legislature is without authority to extend to cities the right to make a license charge for conducting a business outside of its corporate limits for the general revenue of the city, but cities have the right to enact a license on businesses located and conducted in their police jurisdiction as a reasonable and proper exercise of their right and duty to supervise them in that territory, in amounts reasonably necessary to defray the cost of such supervision, in the absence of prohibitory legislation. Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85; Standard Chemical & Oil Co. v. City of Troy, 201 Ala. 89, 77 So. 383, L.R.A. 1918C, 522; Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 105 So. 214; Walden v. City of Montgomery, 214 Ala. 409, 108 So. 231; White v. City of Decatur, 25 Ala.App. 274, 144 So. 872, certiorari denied, 225 Ala. 646, 144 So. 873, 86 A.L.R. 914; City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288; City of Birmingham v. Wilson, 27 Ala.App. 288, 172 So. 292, certiorari denied, 233 Ala. 410, 172 So. 295; Alabama Power Co. v. City of Carbon Hill, 234 Ala. 489, 175 So. 289; City of Prichard v. Harold, 28 Ala.App. 235, 186 So. 499, certiorari denied, 237 Ala. 277, 186 So. 504; City of Andalusia v. Fletcher, 240 Ala. 110, 198 So. 64; City of Prichard v. Richardson, 245 Ala. 365, 17 So.2d 451; Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659; Alabama Gas Co. v. City of Montgomery, 249 Ala. 257, 30 So.2d 651; City of Prichard v. Hawkins, 255 Ala. 676, 53 So.2d 378.
There is another well-established rule that applies here. When the question as to the reasonableness of a municipal ordinance is raised and the ordinance has reference to a subject matter within the corporate jurisdiction, it will be presumed to be reasonable unless the contrary appears on the face of the law itself or is established by proper evidence. Van Hook v. City of Selma, supra; Town of Oxanna v. Allen, 90 Ala. 468, 8 So. 79; Gamble v. City Council of Montgomery, 147 Ala. 682, 39 So. 353; Giglio v. Barrett, 207 Ala. 278, 92 So. 668; Walden v. City of Montgomery, supra; City of Birmingham v. Wilson, supra; City of Prichard v. Harold, supra; City of Andalusia v. Fletcher, supra; City of Prichard v. Richardson, supra.
In view of this principle, the burden rests upon the licensee to demonstrate any claim of invalidity. Walden v. City of Montgomery, supra; City of Andalusia v. Fletcher, supra; Standard Chemical & Oil Co. v. City of Troy, supra. See City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658; American Bakeries Co. v. City of Huntsville, 232 Ala. 612, 168 So. 880; City of Birmingham v. Louisville & N. R. Co., 216 Ala. 178, 112 So. 742.
In § 1 of the ordinance which has application to businesses carried on within the corporate limits of the city, there is set out 206 different types of businesses, with the amount of license tax levied against each, which amounts vary according to the type or character of business. In § 2 of the ordinance applicable to the police jurisdiction, the city authorities fixed the amount of license required for doing business in
Appellants contend that it appears from the face of § 2 of the ordinance that it was enacted for general revenue purposes inasmuch as the amounts of the licenses there imposed are fixed at the maximum amounts which could be imposed under the limitations prescribed in § 733, Title 37, Code 1940, as amended, without any specific mention being made of the various businesses within the police jurisdiction and the amount which each should pay to defray the costs of supervision and regulation; that, therefore, the invalidity of § 2 of the ordinance is apparent on its face.
In the case of Walden v. City of Montgomery, supra, a section of the ordinance of that city was under attack which was very similar to § 2 of the ordinance here involved. Section 15 of the Montgomery ordinance read:
In upholding the validity of the ordinance as against the attack there made, this court said:
It seems clear that the holding in Walden v. City of Montgomery, supra, answers completely the insistence of appellants that § 2 of the ordinance under consideration appears on its face to be unreasonable and invalid.
In City of Birmingham v. Wilson, 27 Ala.App. 288, 172 So. 292, the Court of Appeals had under consideration the provisions of an ordinance of the city of Birmingham very similar to that under consideration here and that in the Walden case, supra. The validity of the ordinance as it applied to business in the police jurisdiction was upheld on the authority of the Walden case, supra. We denied certiorari, 233 Ala. 410, 172 So. 295.
Counsel for appellants, in support of the argument that § 2 of the ordinance of present concern is unreasonable and invalid on its face, rely upon the case of Alabama Power Co. v. City of Carbon Hill, 234 Ala. 489, 175 So. 289. No reference is made in the opinion in that case to the rule previously announced by this court that ordinances of the character there involved are presumed to be valid and that the burden is
The question for determination in that case was not whether the ordinance was unreasonable or invalid on its face, but whether under the agreed statement of facts it was shown that the ordinance as it affected the business carried on by the Alabama Power Company within the police jurisdiction of the city of Carbon Hill was in fact a revenue measure.
It was pointed out in the case of City of Andalusia v. Fletcher, supra, in response to application for rehearing, that the holding in Alabama Power Co. v. City of Carbon Hill, supra, did not change the rule as to the burden of proof and that the holding in that case was based on the fact that the license fee charged by the City of Carbon Hill was directed at a single corporation engaged in a single business within and without the corporate limits and that under the percentage basis of gross revenue the license fee without the corporate limits but within the police jurisdiction equalled in amount the license charge for the same business within the corporate limits.
The holding in the case of Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659 (followed in City of Prichard v. Hawkins, 255 Ala. 676, 53 So.2d 378), was not based on a finding that the ordinance was invalid on its face, but that it was made to so appear from the evidence presented. While no reference is made in the opinion in that case to the rule that the burden is on the licensee to show the invalidity of such an ordinance, nothing said therein was intended to reflect upon that well-established principle.
We hold, therefore, that § 2 of the ordinance here under consideration is not invalid on its face and that the burden of proof was upon the licensee to establish its invalidity by competent evidence. Walden v. City of Montgomery, supra.
The only evidence offered by appellants, respondents below, for the purpose of proving the invalidity of the license levied on appellants' business within the police jurisdiction of the city of Jasper was that going to show the inadequacy of service rendered by the city of Jasper within the police jurisdiction. This evidence, under the rule often stated, was not alone sufficient to justify a finding that the licenses so levied were unreasonable. Walden v. City of Montgomery, supra; City of Prichard v. Harold, supra; City of Birmingham v. Wilson, supra; City of Andalusia v. Fletcher, supra. The facts of this case are unlike the facts presented in the case of City of Prichard v. Richardson, supra. In that case there was evidence both as to the amount of revenue derived from the ordinance and evidence as to the cost and amount of regulation, fire and police protection. In this case there was no evidence under which the trial court could have found that the revenue exacted by the ordinance was all out of proportion to the cost of regulation and protection, as was shown in City of Prichard v. Richardson, supra.
We conclude, therefore, that there is no merit in those assignments of error to the effect that the decree appealed from is erroneous in its entirety.
Appellants under proper assignments of error argue that the trial court erred in decreeing that they were liable for a license for "the privilege of operating a rolling store in connection with the operation" of their business.
Schedule 165 of § 1 of the ordinance reads:
As heretofore shown, the trial court decreed that appellants, respondents below, owed the city of Jasper the sum of $50, plus penalty and issuance fee, for the operation of a rolling store. Hence, it is apparent that the trial court found that such sums were due because of the operation of the rolling store in the police jurisdiction of the city.
Schedule 165, supra, does not purport to apply to the operation of a delivery truck whereby merchandise sold at an established place of business is delivered to customers, nor does it require a license solely for the use of the streets and highways. It applies, as we understand it, to the operation of a miniature store on wheels. There is no definition of a rolling store in the ordinance nor is such a store described in the evidence. However, we think it can be said as a matter or common knowledge that a rolling store is generally understood to be a miniature store stocked with all kinds of merchandise usually carried in general merchandise and grocery stores, placed on a motor vehicle chassis, so that the store can be moved from house to house and the merchandise sold therefrom the same as it would be sold from a store at a fixed location. The scheme of the business is to give customers cash and carry prices at their doors. See Erwin v. City of Omaha, 118 Neb. 331, 224 N.W. 692; H. G. Hill Co. v. Whitice, 149 Tenn. 168, 258 S.W. 407; State v. Webster, 29 Ala.App. 407, 197 So. 87; Harris Bros. v. State, 240 Ala. 160, 198 So. 443.
There is no evidence in this record to support a finding that the respondents have operated a rolling store within the police jurisdiction of the city of Jasper. It is admitted that appellants own a rolling store which they have loaded with groceries from their fixed place of business located within the police jurisdiction. But there is no evidence to the effect that any merchandise was sold or offered for sale from the rolling store at any point within the police jurisdiction of said city. In the absence of such evidence, we cannot agree that appellants are liable for a license based on the operation of a rolling store within the police jurisdiction of the city.
We therefore direct that the decree of the circuit court be modified so as to eliminate therefrom the sum of $55.50, which sum the trial court decreed appellants owed the city of Jasper for the privilege of operating a rolling store.
As so modified, the decree of the circuit court is affirmed. The costs of appeal are to be equally divided between appellants and appellee.
Modified and affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.