Franks v. City of Jasper , 259 Ala. 641 ( 1953 )

LAWSON, Justice.

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 :

“Section 1. That there is hereby levied.for the calendar year 1951 and each calendar year thereafter licenses for the various trades, businesses, vocations, occupations and professions engaged in or carried on in the City of Jasper and each person, firm, company, association, agency or corporation engaged therein shall obtain and pay for a license in the sums, respectively, as follows: * * *.

“Section 2. Any person required by this ordinance to pay license for doing business within the corporate limits of the city shall pay to the city for the privilege of doing business outside the corporate limits, but within the police jurisdiction of the city one-half of the amounts respectively, above assessed and levied for doing business within the corporate limits of the city. The licenses levied by this section are not levied for the purpose of raising revenue, but for police protection and municipal supervision only.

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“Section 11. The license hereby levied shall remain in full force and effect and apply to each calendar year hereafter from year to year without the adoption of any other ordinance.”

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 police jurisdiction of the city of Jasper. They were so engaged in the year 1952 but refused to pay the licenses to the city of Jasper as provided by the ordinance referred to above.

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:

“§ 760. Any municipality of the State of Alabama may file in the circuit court, sitting in equity, in the county in which said petitioning municipality is situated, a bill or petition to enjoin the operation and conduct of any business, occupation, trade or profession subject to municipal privilege license or excise tax imposed by the petitioning municipality and which is delinquent in whole or in part. Said petition or bill shall be verified by the mayor, city clerk, police officer, or by any other governing official or by any employee of the municipality authorized to receive or collect said license or ■tax.

“§ 761. Upon the filing and presentation of a bill or petition as herein authorized, it shall be the duty of the court to set a day for the hearing of said cause upon not less than ten nor more than fifteen days’ notice thereof to be given the respondents; said notice to be in such form as the court may direct and at such hearing upon reasonable cause, to grant a temporary injunction restraining the respondents from further operation or conduct of said business, occupation, trade, or profession, and no bond shall be required of the complainant as a condition thereto. The court shall not grant a temporary injunction unless it has reasonable cause to believe that the respondent owes a debt to the complainant for privilege license or excise tax. The court shall, upon final hearing, if the proof be sufficient, grant a permanent injunction restraining the respondent as herein directed to be done by a temporary injunction. Such injunctions may be dissolved in the manner herein provided.

Ҥ 762. Said bill or petition need not allege the amount due, but may seek an accounting of the respondent for the amount of license tax or excise tax due the complainant. It shall be the duty of the court to render a judgment in favor of the complainant for the amount of license or excise tax found to be due, and it may also declare and enforce any lien therefor provided by the laws of Alabama. The court may order a reference as in other cases.

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“§ 767. The laws of Alabama governing appeals from money judgments entered by the circuit court shall govern and control appeals taken herein, except tire supreme court of Alabama shall have jurisdiction thereof as in other equity suits and except that the appeal shall be perfected within thirty days from the rendition of a final decree or judgment. Any permanent injunction shall remain in full force and effect unless the respondent supersedes the judgment.”

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 of Jasper had failed to furnish police and fire protection and sanitary services to the respondents and other persons residing within the police jurisdiction of said city and therefore the exaction of license for the privilege of engaging in business in that territory was unlawful in that such exaction was solely for the purpose of raising revenue.

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:

“7. That the respondents owe the City of Jasper, Alabama, the total sum of One hundred fifty-seven dollars and twenty-five cents ($157.25) as privilege license, penalty and issuance fee for the privilege of doing business in the police jurisdiction of the City of Jasper, Alabama, during the tax year 1952, and it is hereby ordered, adjudged and decreed by the court that the Complainant have and recover of the respondents, Luther Franks and Clayborn Guin, D/B/A Franks & Guin Grocery Company, and Luther Franks and Clay-born Guin, individually, the sum of one hundred fifty-seven dollars and twenty-five cents ($157.25), for the collection of which let execution issue if the same is not paid within thirty days from the date of this decree.

“8. That the respondents, Luther Franks and Clayborn Guin, d/b/a Franks & Guin Grocery Company, and Luther Franks and Clayborn Guin, individually, be and are hereby permanently enjoined and restrained from operating the business known as Franks & Guin Grocery Company or any part thereof, until such time as the respondents have paid in full the judgment rendered in this cause, together with court costs taxed against the respondents.”

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 call of the Sixth Division held more than sixty days after the appeal was taken.

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:

“Appellee’s motion to dismiss the appeal, because the transcript was not filed in this court within 60 days after taking the appeal, is without merit, and will be overruled. The appeal was taken on February 26, 1925. The first call of the Sixth division thereafter was on April 19th — less than 60 days. The transcript was filed in this court on November 23, 1925, the first day of the ensuing call of that division. This is held to be sufficient. Sloss-Sheffield Steel & Iron Co. v. Webster, 183 Ala. [322] 323, 62 So. 764; Cudd v. Reynolds, 186 Ala. 207, 65 So. 41; Code 1923, §§ 6107, 6129, [Code 1940, Tit. 7, §§ 769, 790]; Supreme Court practice rule 41.”

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:

“From the order granting or refusing the writ of injunction, an appeal will lie to the supreme court within ten days, to be heard as preferred cases in that court, on the first Thursday the court is in session after the expiration of the ten days, or as s'oon thereafter as may be.”

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.