We have carefully considered appellee's brief on this application for rehearing, and conclude no response thereto necessary, as we find ourselves still persuaded of the correctness of the holding as found in the original opinion.
With permission of the Court a brief, amicus curiae, has been filed by counsel representing the Alabama League of Municipalities, which may call for some slight elaboration of the opinion rendered.
In the first place we think the opinion makes perfectly plain that a municipal ordinance fixing a license fee for business conducted within the police jurisdiction which is within the statutory limitation is presumably valid and the burden rests upon the licensee to demonstrate any claimed invalidity. We likewise think the opinion makes clear that the mere fact the municipality had rendered no service to the particular business and that such business had never called for or needed any service was immaterial and inadmissible as proof.
The apprehension of counsel presenting the brief amicus curiae comes from a misinterpretation of the opinion in Alabama Power Company v. City of Carbon Hill cited in the original opinion. Nothing in that opinion was intended as qualifying the rule as to the inadmissible proof above noted. The opinion there held, in harmony with Van Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85, that in the matter of fixation of license fees in such cases a classification as to the character of business was proper, and indeed we think the court may well take judicial knowledge of the varying classifications. And the language of the opinion in the Carbon Hill case, which caused criticism properly understood, is only by way of argument, *Page 114 under the agreed facts, to demonstrate the classification to which the business there involved belonged.
We agree with counsel that the whole area within the police jurisdiction, when such an ordinance is under attack, is to be considered together with the number of business houses and the population of the municipality and all factors to be considered, especially in view of the fact that the municipality is expected to maintain adequate police service for the entire area, both within the corporate limits and within the police jurisdiction of the municipality, even though no demand or call is made for such service.
As we observed in our original opinion the license fee charged in the Carbon Hill case was directed at a single corporation engaged in a single business within and without the corporate limits, and under the percentage basis of gross revenue the license fee without the corporate limits but within the police jurisdiction equaled in amount the license charge for the same business within the corporate limits [234 Ala. 489,175 So. 293], "which is contrary to the spirit of the authority conferred", to use the language of the opinion.
Properly interpreted and understood there is nothing in the opinion in the Carbon Hill case which militates against the conclusion here or against the authorities herein cited. Further elaboration is unnecessary.
It results that the application for rehearing is denied.
Application overruled.
BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.