Williams v. City of Albany , 216 Ala. 408 ( 1927 )

Appellee, on rehearing, stresses section 220 of the Constitution.

Under this section no person shall be permitted to use the streets of a city or town for the construction or operation of any public utility or private enterprise without the consent of the municipal authorities. It is a grant or recognition of police power in the conservation of the safety and convenience of the public in the use of the streets.

The operation of a transportation business in the city for hire has been declared within the scope of this section.

We need not here seek to define the extent of use, whether a necessary or substantial part of the business conducted must be wholly within the city, or whether it covers a mere incidental or occasional use of the streets by nonresidents while passing through or into and out of the city over the highway system of which the street is a part. The section, as heretofore construed, has been applied to different conditions from those presented in this case. City of Montgomery v. Orpheum Taxi Co.,203 Ala. 103, 82 So. 117; Birmingham Interurban Taxicab Service Corp. v. McLendon, 210 Ala. 525, 98 So. 578; Giglio v. Barrett,207 Ala. 278, 92 So. 668; Alabama Traction Co. v. Selma Trust Savings Bank, 213 Ala. 269, 104 So. 517.

This section has no application to the case at bar for the following reasons:

The ordinance under which appellant was convicted is purely a revenue measure, an exercise of the power to levy privilege or occupation taxes within the city. The taxing power is in the Legislature. A municipality possesses no inherent taxing power, but derives it from the state through legislative act defining the same subject to constitutional restrictions.

One of the restrictions is found in section 221 of the Constitution. This section protects municipalities from discrimination in the matter of privilege taxes, forbids a state tax, which, at the same time, relieves the licensee from a municipal tax. This is not a grant of power to the municipality. The state could decline to levy any privilege tax on the businesses named in section 220 and withhold the power from a municipality.

As pointed out in the opinion, it is declared a sufficient compliance with section 221 if the state collects one fund and makes equitable division with the municipality. Mills v. Conecuh County, 204 Ala. 40, 85 So. 564; Ex parte City of Birmingham, 195 Ala. 60, 70 So. 184; Ex parte Bozeman, 183 Ala. 91,63 So. 201; Ex parte City Council, 64 Ala. 463. This line of cases could not stand if section 220 is construed as vesting inherent power in the city to levy privilege taxes on the businesses therein named. The power to levy such taxes must therefore be found in the general provisions conferring right to tax privileges within the city in connection with the Motor Vehicle Tax Statutes. The grant of a revenue license to do business in the city carries, as of course, the consent of the city to do the business licensed so far as lawful.

We adhere to the view that appellant is not subject to the revenue license imposed by the city of Albany.

Application overruled.