On May 16, 1956, the cross-appellants filed their bill in the Circuit Court of Marshall County for a declaratory judgment against the City of Albertville, a corporation, appellant here. The bill alleges that plaintiffs were and for two years prior to April 20, 1956, had been engaged in business outside the corporate limits of the City of Albertville but within its police jurisdiction; that their business, severally, was retailing gasoline, groceries, soft drinks, and cigarettes; that defendant's Ordinance No. 93 imposed upon each seller of gasoline having his place of business wholly within the police jurisdiction a license tax of one-half cent per gallon on each and every gallon of gasoline sold and delivered; that Section 11 of said ordinance was as follows:
The bill further alleges that for two years prior to April 20, 1956, the City of Albertville had collected from plaintiffs taxes under this ordinance; that on April 20, 1956, plaintiffs had filed with defendant their several petitions for refund, which petitions had been denied; that on May 8, 1956, said Section 11 of Ordinance 93 was repealed; that defendant had notified plaintiffs it intended to enforce the ordinance as thus amended, and was doing so.
The bill further alleges that defendant by its Ordinance No. 224 had levied and was threatening to collect from plaintiffs license taxes for engaging in the several businesses of retailing gasoline, groceries, soft drinks, and cigarettes, in said police jurisdiction. The bill further alleges that defendant had by Ordinance No. 232 imposed an additional license tax on persons selling cigarettes within said police jurisdiction in the amount of one cent on each twenty cigarettes; that Section 6½ of said ordinance prior to May 8, 1956, had been as follows:
The bill alleges that on May 8, 1956, the defendant had amended said ordinance by making Section 6½ read as follows:
And the bill alleges that the City of Albertville was likewise threatening to enforce this ordinance as thus amended
The bill then prayed for a declaration that defendant had no right to enforce any of these ordinances as against plaintiffs, and that defendant be required to refund the gasoline taxes collected. There was an offer to do equity and a prayer for general relief.
The answer of the City admitted the ordinances and defendant's purpose to enforce them within three miles of the City limits, defendant having a population of over six thousand.
The cause was submitted for final decree upon the pleadings, testimony adduced by the plaintiffs and a stipulation as to certain facts. The court entered a decree declaring Ordinance No. 93 invalid and requiring defendant to refund the gasoline taxes that were paid from April 20, 1954, to May 8, 1956, with interest at four percent from April 20, 1956, and "interest" on items collected by it after May 16, 1956. The decree further provides:
From this decree the defendant appealed and assigned several errors. Plaintiffs have cross-assigned errors as follows:
Plaintiffs took the testimony of defendant's Mayor Floyd Brown and City Clerk Jesse M. Cochran. The Mayor testified in
Plaintiff's Exhibit "A" was an audit or "Statement of Revenue and Expenses of the City of Albertville" for the year October 1, 1953 to September 30, 1954. Exhibit "B" was a similar audit or "Statement of the City for the year October 1, 1954 to September 30, 1955. Exhibit "O" was a similar audit or "Statement" for the year October 1, 1955 to September 30, 1956. Exhibit "C" was a copy of defendant's "Proposed Budget 1955-56." None of these documents contained any reference to the police jurisdiction.
The testimony given by the City Clerk in substance was the same as that given by the Mayor and in addition he testified that the only list of business houses in the police jurisdiction he ever made was for the purpose of notifying the different operators that taxes under the subject ordinances would be collected. The Clerk further testified that the revenue from the sale of cigarette stamps under Ordinance No. 232 was placed directly in the Recreation Fund.
Plaintiff's Exhibits "A", "B", and "O" showed that the revenue from this ordinance for the year ending September 30, 1954, was $9,969.90, for the year ending September 30, 1955, was $9,086.20, and for the year ending September 30, 1956, was $10,102.70, and that none of this was used in operating the four departments mentioned above. No effort was made by the City to keep a record of how much of the revenue under this ordinance came from the police jurisdiction.
The foregoing documents do not contain any mention of the police jurisdiction either as to how much was received into the city treasury from the police jurisdiction or that the city was spending anything in the way of furnishing police and fire protection or sanitary inspection service in that area. There is no proof that shows a tax rate based on the reasonable cost of supervision. In other words, there is nothing in the record to show an analysis or breakdown of the operation expenses of the city to show how much expense was incurred in the police jurisdiction as distinguished from that incurred inside the corporate limits.
Our cases hold that ordinances such as the ones involved in this case can be invalid for one of two reasons, namely, (1) invalidity appearing on the face of the ordinance and (2) invalidity arising out of its operation. City of Prichard v. Richardson, 245 Ala. 365, 17 So.2d 451; Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659. Furthermore our cases hold that 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 it is established by proper evidence. Franks v. City of Jasper, 259 Ala.
So far as we can ascertain there is no contention that Ordinance 93 either in its original form or as amended by striking out section 11 thereof, is invalid on its face. Certainly no invalidity appears on the face of the ordinance as amended. We see no reason to discuss the invalidity vel non of Ordinance 93 in its original form so far as appears on the face of the ordinance, because there is no discussion in briefs to justify our treatment thereof. So we hold that since there is no proof of the amount received from the police jurisdiction by the city under Ordinance 93, either before or after its amendment, and there is no proof of the reasonable cost of police and fire protection in the police jurisdiction, the complainants have not made out a case for recovery of the amounts paid by them under Ordinance 93 in its original form or as amended. The holding of the court on this feature of the case is reversed and the cause is remanded.
As a guide to future proceedings, we see no basis for fixing the rate of interest at four percent per annum on taxes collected prior to April 30, 1956, and interest at six percent per annum on taxes collected after the filing of this suit. The rate of interest shall be six percent per annum on items collected and which are found to be recoverable, if any. § 60, Title 9, Code of 1940.
With respect to Ordinances 224 and 232, the proof in the case at bar shows that the complainants paid no taxes under these ordinances and since there is no proof of operation under these ordinances, we think the court was correct in holding that there is no justification for recovery under these two ordinances.
Accordingly we affirm the action of the court in denying recovery under Ordinances 224 and 232.
We conclude that the decree of the court should be affirmed in part and reversed and remanded in part in accordance with what has been said.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL and COLEMAN, JJ., concur.