Summary
In City of Birmingham v. Sloss Sheffield Steel Iron Co., 225 Ala. 71, 142 So. 55, reference is made to § 2173, Code 1923 (in effect at the time here in question) as having the purpose to restrict rather than broaden the powers of the municipality.
Summary of this case from Gotlieb v. City of BirminghamOpinion
6 Div. 154.
May 26, 1932.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
W. J. Wynn, of Birmingham, for appellant.
If any part or phase of appellee's business as a manufacturer or deliverer of by-product gas was engaged in, carried on, or conducted within the corporate limits of the city of Birmingham, the appellee is liable in this case. To avoid the license tax such business must be wholly carried on without corporate limits of the city. Code 1923, § 2173; Standard Oil Co. v. City of Selma, 216 Ala. 108, 112 So. 532; Spinney v. City of Lynn, 172 Mass. 464, 52 N.E. 523; Board of Councilmen v. Stone, 108 Ky. 400, 56 S.W. 679; Wells v. Christain, 165 Ind. 662, 76 N.E. 518; William Rogers Mfg. Co. v. Simpson, 54 Conn. 527, 9 A. 395; Phonograph Co. v. Board of Assessors, 54 N.J. Law, 430, 24 A. 507; Hendy v. Soule, 11 Fed. Cas. 1097, No. 6359.
E. L. All, Kingman C. Shelburne, and Bradley, Baldwin, All White, all of Birmingham, for appellee.
The ordinance in unambiguous terms seeks to exact a license of manufacturers of by-products gas where delivered in the city of Birmingham. It does not apply to a manufacturer who delivers gas manufactured by it outside of the city. The ordinance is not directed against a manufacturer who transacts some of its business in the city, but is confined to a manufacturer who delivers by-products gas in the city. It is not applicable to the defendant (appellee). McKeesport v. Mayhugh, 14 Pa. Dist. R. 224; 55 A.L.R. 1190; Bates v. Mayor, etc., of Mobile, 46 Ala. 158; Woco Pep Co. of Montgomery v. Montgomery, 213 Ala. 452, 105 So. 214; Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 62 L.Ed. 211; City of Oakland v. Great Western Power Co., 186 Cal. 570, 200 P. 395; 2 McQuillin, Mun. Corp. (2d Ed.) 894; 43 C. J. 572.
Action of indebitatus assumpsit by the appellant to recover the amount of a license tax alleged to be due and unpaid.
The question involved in the appeal is not the power of the municipality to levy a tax and require a license from the appellee for engaging in business within the area covered by the municipality's taxing powers, but whether or not the appellee is within the scope of the ordinance which levies a tax and requires a license from each manufacturer of gas by-products, "where delivered wholesale, in City for domestic purposes, $500.00. Where delivered in City for manufacturing purposes only, $250.00." (Italics supplied.)
The agreed case is that the appellee, "during November and December 1923, and the years 1924 and 1925, owned and operated a plant for the manufacture of coke and by-product gas, said plant being situated without the corporate limits of the said City of Birmingham and at a distance of about one mile from said corporate limits. Said company during said time was engaged in the business of manufacturing pig iron and coke, and incidental to the manufacture of coke produced said by-product gas which it sold as hereinafter stated. During said period of time the said Sloss-Sheffield Steel Iron Company maintained and operated its general offices in the City of Birmingham, Alabama, where it transacted much of its business and it there received by mail, checks of Birmingham Electric Company in payment for the by-product gas delivered by the defendant to the Birmingham Electric Company as hereinafter stated. All of the by-product gas manufactured by defendant during the above mentioned time, after being manufactured by the defendant at said plant during said time, was delivered by the defendant to the Birmingham Electric Company without City of Birmingham at said plant of defendant and was conducted by said Birmingham Electric Company from the point of delivery in said plant of defendant through pipes of the Birmingham Electric Company extending from said plant of the defendant into the City of Birmingham, and was delivered by said Birmingham Electric Company, which was and is a public utility, to consumers for domestic purposes, said consumers being customers of the Birmingham Electric Company in said City, and said consumers paid the Birmingham Electric Company therefor. The defendant has no pipes or conduits extending from its said plant to or into said City. * * * All of the gas delivered to the Birmingham Electric Company as stated above was sold in the City of Birmingham by the defendant to the Birmingham Electric Company and paid for by said Birmingham Electric Company in said City." (Italics supplied.)
The basis of the levy by the ordinance is not on gas sold and paid for, or business conducted in the city, but on the basis of gas delivered by the manufacturer within the city, and, on the case made by the statement of facts, no deliveries of gas were made by the defendant within the city, and therefore it was not liable to pay the tax. Barrow v. City of Bessemer, 224 Ala. 48, 138 So. 553; Oakland v. Western Power Co., 186 Cal. 570, 200 P. 395.
It is clearly not the purpose of section 2173 of the Code (Acts 1919, p. 1030, § 1) to broaden the scope of ordinances levying such tax, but to lay a restriction on the power of municipalities in levying license taxes.
The judgment of the circuit court is free from error and ordered affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.