On Rehearing. The question briefly stated on this appeal is whether the contract made by the appellee, a public utility, and the City of Montgomery on September 23, 1941, imposing on the utility an annual license or privilege tax in a sum equal to one percent of the gross revenue derived by it from the operations of the preceding year within the city and within the police jurisdiction of the city is valid and binding on the city for the balance of the period of a franchise granted to it by the city extending from December 5, 1935 for twenty years. There was adequate consideration for the contract.
On December 13, 1944, the city by ordinance undertook to impose an annual license tax upon the utility in a sum equal to two percent of the gross revenue derived from the preceding year's operations within the city and police jurisdiction thereof for the remainder of the term of the franchise. That feature of the license ordinance of December 13, 1944, which imposes a license tax in a sum equal to two percent of the gross revenue derived by the company from operations within the police jurisdiction of the city cannot be supported. Alabama Gas Co. v. City of Montgomery, 249 Ala. 257, 30 So.2d 651; Van Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85.
We do not think that this results in striking down the entire ordinance if the balance is legal. In the City of Prichard v. Richardson, 245 Ala. 365, 17 So.2d 451, the question only related to a license tax for doing business in the police jurisdiction. The Court held that the license was for revenue as well as police regulation and therefore void. And in doing so held that the court could not fix an amount for police regulation since that was for the city alone. That was of course a sound theory, but not here applicable.
The city here fixed a license tax of two percent of business done within the city limits and the police jurisdiction. The legal effect is to cut out the two percent on receipts from business done in the police jurisdiction, leaving in force the two percent on receipts from business done in the city limits, if the latter is otherwise valid. The validity of that feature of the ordinance of 1944 depends upon the validity of the contract of September 23, 1941, by *Page 666 which the city agreed in substance to a license tax against the utility of one percent of the receipts from the preceding year's business done in the city and in the police jurisdiction, covering the balance of the period of the franchise. We will not oppose the view that the proceedings of September 23, 1941, and subsequent conduct of the parties with respect to it are sufficient to create a contract, if the city could legally make such a contract.
In the case of Mayor, etc., of Birmingham v. Birmingham Water Works, 139 Ala. 531, 36 So. 614, 101 Am.St.Rep. 49, this Court held that a city was without power to make a valid contract which would deprive it in future years from imposing such license tax as the law then justified, unless there was legislative authority to do so. We agree that the only question we have to decide in that connection is whether there was legislative or constitutional authority granted to the city, effective September 23, 1941, to make a contract of that sort.
We do not think that the constitutional provisions have application. Section 220 of the Constitution is a limitation on legislative power so as to give cities the right to veto the use of its streets for business purposes. City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Bush v. City of Jasper, 247 Ala. 359, 24 So.2d 543.
Section 221, Constitution, is for the purpose of protecting the city from legislative enactments which would deprive it of the benefit of levying license fees when the State has laid such a tax for itself.
Section 228, Constitution, is a limitation on the duration of franchises granted by cities of a certain population.
We think there is nothing in those three provisions of the Constitution which look to the authority of a city to contract away its power to raise revenue by imposing license charges within the limitations fixed by statute.
Section 745, Title 37, Code, was in effect when the contract of September 23, 1941, was made. That statute fixed a maximum of two percent of the gross receipts in the municipality for the preceding year, which a city may fix as a license charge. The last sentence in that statute is as follows: "Provided that this shall not affect any existing contract, between any municipality and any public utility operating therein." This proviso first made its appearance and was in that form in the Act of September 14, 1915. — General Acts 1915, page 520, section 92. It was carried into the Act of September 15, 1919, General Acts 1919, page 428, section 89, in the same language. It became section 2162 of the Code of 1923, and section 24-a of the Act of July 22, 1927, General Acts 1927, page 166, and section 745, Title 37 of the Code of 1940. In all those statutes it purports to leave unaffected existing contracts between a city and a utility. In none of them does it look to the future. There is no law that we know of that does look to the future. It is doubtful as to its meaning even as to existing contracts.
It looks like the power to license within the maximum must not be contrary to contracts existing when the license is laid. This probably means valid contracts. Such provision must be construed also in the light of section 735, Title 37, Code, then in effect, that a license cannot run longer than one year.
The Code went into effect May 31, 1941, before the contract of September 23, 1941, which contract was therefore then nonexistent. Therefore, that feature of section 745, supra, could not have the effect of ratifying that contract, whatever it might mean. But since said contract was made, the legislature has readopted section 745 twice. General Acts 1947, page 240; General Acts 1949, page 945.
In both of those acts instead of the proviso appearing as set out in section 745, Title 37, Code, it was set up in the following language: "Provided that this shall not affect any existing contract, between any municipality and any public utility operating therein, except those provision of contracts which relate to the amount or basis of the license tax imposed by municipalities on such utilities." The legislature was therefore desirous of making it clear that it was not intended by *Page 667 section 745, supra, to validate any contract made by a city with a utility which would have the effect of limiting the right of the city to levy a license tax as thereby authorized. Those acts also increase the maximum amount which the cities may impose on utilities from two percent to three percent of the gross receipts of business done by the utility in the municipality during the preceding year. They seem to be the only ones enacted by the legislature since the contract of September 23, 1941 was made touching the subject and they clearly and distinctly provide in substance that, notwithstanding any such contract, the city has the right to levy a license tax within the maximum there provided.
It is contrary to the spirit of the governmental function of a city for it to make a contract which will limit its legal authority to raise revenue in future years, regardless of what its needs may be.
The license tax, as we have stated, only extends for a year. Municipalities may change the amount of it from year to year within the limits fixed by law then applicable. Such status is made manifest by the Acts of 1947 and 1949, supra.
We do not think that section 563, Title 62, Code, which is a local law applicable alone to the City of Montgomery, has a different effect. Under that law it is necessary for the City of Montgomery to provide for adequate compensation or consideration for the granting of franchises by the city. Such consideration may be in the nature of a specified amount or a sum measured by a percentage of the gross receipts of the utility. The percentage of the gross receipts is without limit fixed by law. But it is determined solely as the result of negotiation and contract between the city and utility and has no relation whatsoever to the right and power of the city conferred by section 745, Title 37, supra, as amended, to levy a license tax within the maximum limits there expressed. And under the provisions of section 733, Title 37, Code, the city likewise has the power to levy a license tax on business done in the police jurisdiction, but not exceeding one-half of the amount charged and collected for business done within the city, provided, of course, that such fees shall not exceed what may be reasonably necessary for police purposes. The amount of the compensation for the franchise as provided in section 563, supra, is over and above and has no connection with or relation to the license tax authorized by sections 745 and 733, supra.
We know of no law or constitutional provision which would give the authority to the City of Montgomery or any other municipality in Alabama to bind itself by contract as to the amount of the license tax in future years, which it may impose by authority of legislation then existing.
It is our opinion therefore that the decree of the Circuit Court, in Equity, of Montgomery is contrary to our views here expressed in declaring that the license tax proposed by the City of Montgomery by ordinance dated December 13, 1944, is null and void and of no effect, and that the ordinance of the City of Montgomery dated September 23, 1941 is the license ordinance under which appellee is authorized to operate and that the same shall remain in full force and effect throughout the term of the franchise and, further, that the appellee recover of the City of Montgomery any sums of money paid in excess of the license required by said ordinance dated September 23, 1941, and said decree of said court in the respects just stated is hereby reversed and is here rendered so as to adjudge and decree that the ordinance of the City of Montgomery of December 13, 1944 is not null and void so far as any question here presented is concerned, to the extent that it provides for a license tax of two percent of the gross receipts of appellee derived from business within the city and therefore, to that extent, it supersedes the ordinance of the city dated September 23, 1941, and appellee is not entitled to recover from the City of Montgomery any sums paid in accordance with the ordinance of December 13, 1944, except that which is in excess of two percent of the gross receipts derived by appellee from its business conducted within the municipality. *Page 668
Rehearing granted: judgment of affirmance set aside: judgment of the circuit court reversed and one here rendered.
BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur.
LIVINGSTON, J., dissents.