Opinion
SC 1386.
August 4, 1975. Rehearing Denied October 2, 1975.
Appeal from the Circuit Court, Jefferson County, William C. Barber, J.
Jones Monroe, Birmingham, for appellant.
City cannot levy such a license fee as to manifest an intent to prohibit or oppress the engagement in a business or profession or the City cannot levy such a license fee which would have such a resultant effect. Alabama Code, 1940, Title 37, § 751; Bessemer Theatres, Inc. v. City of Bessemer, 251 Ala. 632, 75 So.2d 551; U.S.C.A., Constitutional Amend. 14. A municipality may not prohibit the sale of beer where such sale has been licensed by the State, by zoning or otherwise. Campbell v. City of Hueytown, 289 Ala. 388, 268 So.2d 3. A city has authority to levy a reasonable license fee for selling beer, but has no authority to prohibit the sale of beer by one legally licensed to do so by the State. Opinion of Attorney General of May 29, 1947, Vol. 7, p. 171; Paulson's Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 238, 139 So.2d 330, 333. Given the existing state of the law, a municipality may not prohibit the sale of beer where such sale has been licensed by the State of Alabama. Campbell v. City of Hueytown, 289 Ala. 388, 268 So.2d 3; Willis v. State ex rel. Flynt Oil Co., Inc., 290 Ala. 227, 275 So.2d 667.
Rogers, Howard, Redden Mills, Birmingham, for appellees.
A municipal ordinance imposing a license that does not exceed in amount a statutory or constitutional limitation may be determined to be invalid because of excessiveness only from evidence of financial data demonstrating that it is unreasonable, prohibitory, or confiscatory. Dixie Finance Co. v. City of Demopolis, 265 Ala. 267, 90 So.2d 732 (1956); Bessemer Theatres v. City of Bessemer, 261 Ala. 632, 75 So.2d 651 (1954); Woco Pep Co. v. City of Montgomery, 213 Ala. 452, 105 So. 214 (1925); Ex Parte Sikes, 102 Ala. 173, 15 So. 522 (1894). The validity of a municipal license may not be determined by its effect upon one person or one business. Al Means v. City of Montgomery, 268 Ala. 31, 104 So.2d 816 (1958); Bessemer Theatres v. City of Bessemer, 261 Ala. 632, 75 So.2d 651 (1954); Evers v. City of Dadeville, 258 Ala. 53, 61 So.2d 78 (1952); Woco Pep Co. v. City of Montgomery, 213 Ala. 452, 105 So. 214 (1925). No person has an inherent right to engage in the business of selling alcoholic beverages. Paulson's Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962); Norwood v. Capps, 278 Ala. 218, 177 So.2d 324 (1965); State v. Murphry, 237 Ala. 332, 186 So. 487 (1939). An actual justiciable controversy between the parties must exist before a declaratory judgment is appropriate. City of Mobile v. Scott, 278 Ala. 388, 178 So.2d 545 (1965); Town of Warrior v. Blaylock, 275 Ala. 113, 152 So.2d 661 (1963); Talton v. Dickinson, 261 Ala. 11, 72 So.2d 723 (1954); Dozier v. Troy Drive-In-Theatres, 265 Ala. 93, 89 So.2d 537 (1956).
Ms. Lawrence appeals from a decree of the Circuit Court of Jefferson County, dissolving a temporary injunction, and denying declaratory relief, against the mayor and city council of Warrior. We reverse.
This court held in Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385 (1975) that a city ordinance requiring a $5,000 annual license fee for retail sales of beer was invalid. After that decision, the council met and adopted an ordinance requiring a fee of $4,000. Thus, the principal issue here is the same as in the first case: Was the license fee unreasonable?
We cannot set the fee for the license, but from the evidence, other cities and towns in Jefferson County require fees ranging from $25 to $500. It would appear that requiring a license fee in Warrior of an amount over $500 is unreasonable and confiscatory. The effect of the $4,000 fee is the same as the $5,000 fee — to prohibit the legal sale of beer and wine. We pause here to say that this court will not tolerate circumvention of its orders, under the ruse of amending the fee schedule for selling beer and wine, one step at the time.
The City argues that Ms. Lawrence has not complied with § 2 of the ordinance requiring a written application, giving the applicant's name, age, location of business, type of business, names of employees, police record, if any, etc. Mrs. Lawrence filed with the clerk a crude writing stating she wanted a license to sell "off-premises" beer and wine. She gave her business address and the name of her business. She also submitted her ABC license. In this particular case, this writing should have been sufficient. It is very likely that the mayor and council know as much about Ms. Lawrence and her business as she knows herself. It is true that Ms. Lawrence did not submit a fee with her application. But, here this would have been a futile gesture. In the previous case, Ms. Lawrence submitted a fee within the range of other Jefferson County cities and towns, and was turned down.
We conclude from the evidence before us, that the ordinances setting a license fee of $4,000 were to prohibit the sale of beer and wine. On the authority of Lawrence, we hold these ordinances to be invalid.
Reversed and remanded.
HEFLIN, C. J., and ALMON and EMBRY, JJ., concur.
BLOODWORTH and ALMON, JJ., concur specially.
I concur specially in the opinion of justice Faulkner.
The first time this cause was before this Court, I dissented from that portion of the majority opinion (authored by Justice Jones) which held that a "justiciable controversy" existed. I expressed my opinion that no justiciable controversy then existed because: (1) Ms. Lawrence had no ABC license when she applied for a retail beer license from the city; and, (2) Ms. Lawrence had not complied with the city ordinance requiring written application under oath.
Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385, 392. [April 17, 1975, Rehearing denied May 22, 1975].
Ms. Lawrence has now secured an ABC license and has reapplied for a city license. Although I am still of the opinion that she has not fully complied with the ordinance, I now agree that it appears clear that the city will not grant her a license, irrespective of her complying with the ordinance by filing an application under oath, unless she pays a license fee of $4,000, a sum which I agree is unreasonable and confiscatory. The law does not require a futile act. Alabama Department of Industrial Relations v. Anderson, 41 Ala. App. 267, 128 So.2d 532.
It is my opinion that if Ms. Lawrence ultimately pays such reasonable license fee as may be set by the city of Warrior, she should fully comply with the ordinance requiring an application to be made under oath.
ALMON, J., concurs.