The Montgomery advertiser., 1905-02-23

De imposed on occupations and prtVt- tions and privileges including the pow CT to license them. A tax in gross amount of sales. is not a tax on the goods themselves, or upon the fruits of the sales but upon the business Of selling: is not a property tax. but an occupation or income tax: and a mu- ntcipal corporation, when authorized by It's charter may require license tax. No tax had been or was pros posed to be levied on net incomes. but levy was first authorized by said sec ton 453 on property as such. What followed as to other subjects of taxa ton, was designed to be and was real- ly. tax on the business or occupation of the tax payer. As was well said in Lott vs. Ross. 3S Ala 1856, supra, in respect to the imposition of tax on gross receipts. it Is not a property Jr income tax, but an occupation or priv ilege tax, the amount being regulated by the extent to which the privilege has been enjoyed" Capital City Wa ter Works vs Montgomery, 117 Ala 311.
 Again in 112 Ala. 55T: Tt Is not dis puted that a license tax. so called, falls within the general term taxes, and that the party against whom it Is lev led is bound for it." In this case the tax Is not on property, but on diff terent subject and species of taxation business in the city. There is A marked distinction in our constitution kept up in our revenue system and recognized in the adjudged cases, be- tween these two subjects of taxation property as such, and license or privilege tax"
 The case of Reyman Brewing Co. Ys. Harry Brister, treasurer. etc, l79 445, is pressed upon the court as a controlling authority. In that case the act of the Legislature reads: An act providing agalnst the evils result f~a Ffir Tn Int fdaf ina
 Section 1. That upon the business of traft1cking in sptrituous, -vinous, malt or any intox4cating liquors, there shall be assessed, yearly, and shall be paid into the county treasury as hereinafter provided by every per- son. corporation or copartnersnip en- gaged Stns nuaSred therein ana e,. the sum of
 Sec. 8. The phrase 'trarhcking in intoxicating liquors as used Tn this act means the buying, but such phrase does not include the manufac- ture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gal lon or more at one time" The court holds this statute to be a police regu- lation and in doing so says; 'In ex- eTnpting sales in quantities exceeding one gallon at the place of manufacture and imposing the tax upon such sales when made at places elsewhere, the Legislature of Ohio was m the exer- else of It's police power, aiming to re- strict the evils of saloons or places the tax upon the latter, the law, to some extent, IS calculated 10 lessen the acknowledged source of vice and disorder. As we have hereto- fore stated the Supreme Court of Ohio has construed the law to aim at con- trolling and regulating sales in quan- or at places other than the. place or manufacture and to be therefore with in the scope of the police power" The distinction between the Ohio statute and the ordinance under consideration is marked. the former purports to be provide against the evils and by its terms relieves the nanu- facturer of taxation, theerby giving and to some extent inducing those who will use intoxicating liquors to buy from him by the gallon or more, take it home and drink 1t in quiet way and not to resort to barrooms and places where liquors are sold gener- ally, thereby lessening 'an acknowl- edged source of vice and disorder" which source is the barroom and other places where liquors are sold in small quan- titles, the ordinance on its face pur- ports to be a license tax and as the license is higher for the sale of beer by the barrel, half or quarter barrel than for a general barroom and six and two-thirds greater than selling malt liquors at retail or by the drink. 
 to that produced by the Ohio statute; farther we have the Supreme Court of Ohio pronouncing the Ohio statute a police regulation, which 1t Is. and the Supreme Court of Alabama declaring the ordinence under consideration means of raising revenue by means of license taxation.
 has the power to impose the license as a police regulation under what is de- nominated the general welfare clause ferred to. but can this section be called a general welfare clause? It is not gem eral, but limited in its scope as will be seen by a careful reading 1t is; efhciently performed, said general council shall have full power and au- thority to make. adopt and declare by laws or ordinances not in conflict with the laws of this State or of the United States and the better to effectuate this; the chairman elected to preside over the meetings of said general coun- ell shall have authority
 (to appoint committees. same to re- port, etc.) And the said bylaws or ordinances adopted and declared by shall have force and effect in said city of Mobile for and concerning the sev- eral matters mentioned in this section that Is to say, said general sbe % prevention of Ca num9 Der of things) the licensing and regu- Iation of retail liquor dealers ." and many other things, all legitimate subjects of police regulation.
 This section does not give the right to regulate the business of selling beer by the barrel, half or quarter barrel and the city cannot impose a license as a police regulation, unless 1t has the authority to regulate the subject of such license and under the section (2i) just above set out such power IS not given and I cannot find authority granted by any other part of the city charter. | is a general and undis- puted proposition of law, that a munic- Gpal corporation possesses and can exercise the following powers, and no other: First. those granted in express words; second, those necessarily or fairly implied or incidental to the powers expressly granted; third. those essential to the declared objects and purposes of the corporation-not sim ply convenient, but indispensable, 90 Ala 432-S0 Ala 519-T9 Ala. 465.
 The court is of the opinion that the ordinance levying licenses Is for the purpose of raising revenue, and Is not an exercise of the police power; there fore the defendant Is protected by the interstate commerce clause of the Con- stitution of the United States.
 The largest in attendance and great