
    The Manassas Club v. The City of Mobile.
    
      Prosecution for Engaging in the Business of Belling Liquors. Without License.
    
    1. License to sell liquors required of clubs; what business intended to be taxed. — Where municipal authorities, pursuant to the powers conferred on them by charter, enact that license shall be taken out by clubs and social circles where liquors are sold to members, guests and visitors, and that a fine shall be imposed for failure to do so, it has been uniformly held in this State that the business intended to be taxed by such enactments is one which is carried on for a livelihood or profit.
    Appeal from the City Court, of Mobile.
    Tried before the Hon. O. J. Semmes.
    The facts are stated in the opinion.
    E. L. Bussell, for appellant,
    cited, Piedmont (Jlub v. Commomoealth, 87 Ya. 540; Columbia Club v. McMas-ter, 35 S. C. 1; Term. Club of Memphis v. Dwyer, 11 Lea. 452; 47 Am. B’p’ts 298; Eevnig v. State, 33 Tex. Crim. B’p’ts 36; Barden v. Montana Club, 10 Mont. 330; Bteim v. State, 55 Md. 566.
    B. B. Boone, contra,
    
    cited Martin v. State, 59 Ala, 34; Jacobi v. State, 59 Ala. 71; Nogales Club v. State, 69 Miss. 218; State v. Lockyear, 95 N. C. 633; S. C. Am. Kep. 287; Marmount v. State, 48 Ind. 21; Richards v. Peoples, 79 Ill. 85; State v. Eorisek,.41 Kan. 87; Jones v. Jones, 95 Ala. 449; Ex parte City Council of Montgomery, 64 Ala. 463; City of Mobile v. Richards, 88 Ala. 597.
   SHABPE, J.

— By the statute a retail liquor dealer is defined to be any person Avbo sells or disposes of spirituous, vinous or malt liquors or intoxicating bitters in any quantity less than one quart. — Code § 4122.

The charter of the city of Mobile confers upon the General Council the power to enact ordinances “for the licensing and regulation of retail liquor dealers” and also provides that it shall “have the authority to assess and collect from all persons or corporations trading or carrying on any business, trade or profession by an agent or otherwise within the limits of said corporation a license tax which shall be fixed and declared each year by ordinance of said corporationand further that the General Council “may also- by ordinance impose such fines and penalties Avithin the limitations named in this act as they may deem advisable for the doing of any business or the carrying on of any trade or the practicing of any profession by any parties Avho shall fail to take out such license as may he imposed by this act.”

The foregoing being the extent of the power conferred upon the municipality in respect of licensing retail liquor dealers, the corporate powers ordained “that a license tax for the fiscal year beginning on the 15th day of March, 1897, and ending on the 14th day of March, 1898, is hereby imposed and assessed on each person, firm, association or corporation trading or carrying on any business trade or profession by agent or otherwise within the limits of the city of Mobile and the same is hereby fixed for such business trade or profession as fol-Ioavs to-Avit,” and in the license schedule following appears “clubs and social circles Avhere liquors are sold to members, guests and visitors.” for failure to obtain the required license the ordinance provides for a fine of not less than five nor more than fifty dollars for each day of such failure.

. The defendant was fined as for the breach of the ordinance in failing to take out a license and appealing to the city court Avas tried upon an agreed statement of facts. Judgment Avas rendered by the city court for the fine assessed from which judgment this appeal is brought.

The statement of facts shows that the defendant had obtained no license and as to the nature of the club and its manner of dealing with liquors, it recites “That the defendant corporation is a social club, and that said corporation did'engage in and carry on the business of selling by retail in quantities in less than one quart, vinous, malt, and spirituous liquors to its members for valuable considerations, and at the usual retail prices prevailing at liquor saloons elsewhere in the city of Mobile. Said sales to its members being made in the rooms of said Manassas Club within the city of Mobile by the steward or bar-keeper of said club, who was a salaried servant or agent of said club and employed by the Manassas Club to dispense said vinous, malt, and spirituous liquors to its members.

“That said sales of vinous, malt and spirituous liquors have been made by the Manassas Club in the manner above stated to its members during the entire year 1897.

“That the money derived from the sale of the vinous, malt and spirituous liquors to its members by the Man-assas Club, a corporation, were re-invested by said Manassas Club in purchasing the same liquors, and that the profits derived from the sale of the liquors to its members as well as the principal money invested therein was kept separate and apart from the general funds of the club and was and is used only for the purpose of replenishing and keeping up the stock of said corporation in vinous, malt, and spirituous liquors.

“That no persons are allowed in the rooms of the building of said Manassas Club, a corporation, except its members and introduced non-resident visitors.”

The ordinance in question is not a police regulation of liquor dealers or others but it includes various other occupations as to which no power is given in the charter • merely to regulate. It purports by its terms to impose a license tax for the carrying on of business and is referable for its authority to that part of the charter granting power to assess and to collect such tax from persons or corporations “trading or carrying on any business trade or profession.” We construe the ordinance- as relating only to the revenues of the city. It has been generally held and uniformly so in this State that the business intended to be taxed by such enactments is one which is carried on for a livelihood or profit, and though the number of sales and the fact as to whether they result in profit are not tests of the purpose of such business yet to be within the meaning of the law they must be with a view of profit or of pursuing business for a livelihood.—McPherson v. State, 54 Ala. 221; Harris v. State, 50 Ala. 127 and other cases cited in note to section 5467 of the Code.

Applying the principle to the present case we think the proof is insufficient to bring the defendant club within the meaning either of the ordinance or the charter power. Similar operations in social clubs have been the subject of consideration in other courts and though a difference of opinion appears as to whether such disposition of liquors constitutes sales, yet it is generally held that lacking the purpose of profit such as might accrue from dealings with many persons or with the public, they do not within the meaning of enactments simply requiring a license for the carrying on of business.—State v. Boston Club, 12 So. Rep. (La.) 895, s. c. State v. Boston Club, 45 La. Ann. 585; Tennessee Club of Memphis v. Dwyer, 11 Lea, 452, 47 Am. Rep. 298; Piedmont Club v. Commonwealth, 87 Va. 540; Columbia Club v. McMaster, 35 S. C. 1, 28 Am. St. Rep. 826; Borden v. Montana Club, 10 Mont. 330, 24 Am. St. Rep. 27.

It may be that a case could occur of business carried on by “clubs and social circles where liquors are sold to members, guests and visitors” and so within the meaning of the ordinance and the charter, since such business might include an extended number of members together with guests and visitors to whom the sales might well be made for profit. Such a case was considered in Rickart v. People, 79 Ill. 85, where persons became members by purchasing tickets entitling them to drinks and which the court held was a device to evade the law.

The facts'here show no disposition of liquors except to members and even the number of persons included in the membership is not stated. For all that appears the membership may have been limited to the smallest number necessary to constitute a club. The burden of proof to show a carrying on of business being upon the city we cannot presume a larger membership.

We would not be understood as departing from the decision in Martin v. State, 59 Ala. 34, where such transactions in a club were held to be sales, nor is this de-cisión authority upon any case which may arise under police regulations of liquor selling made either by statute or ordinance.

Under the rule that courts Avill not pass upon the constitutionality of a statute where the decision can be properly placed upon other grounds, we decline to consider the constitutionality of the club’s charter provision reciting that such disposition of liquors “shall not constitute a sale thereof but shall be held and treated as a consumption by such members of their own property.”

The judgment of the city court will be reversed and the judgment here rendered in favor of the defendant.  