[City Council of Montgomery v. Kelly.] license tax to discourage and even break up a business. Cooley on Taxation, (2nd ed.), p. 20. But this applies only to those lines of business which, while they are tolerated, are recognized as being hurtful to public morals, productive of disorder, or injurious to public. Tiedeman on Limitations of Police Power, pp. 273, 277, 278; 21 Am. & Eng. Ency. Law, (2nd ed.), p. 778. Without entering into the various definitions which have been given, in order to distinguish between a license, which is strictly a police regulation, and one which is simply a privilege tax on the occupation, we think it is safe to say that, in this case, there can be no license tax imposed except one which is simply a privilege tax on the business. Not only does the ordinance itself fail to provide for any regulations which would indicate an exercise of the police powers, but the character of the business, shows it to be one of the legitimate, and useful lines of trade, which neither the state nor the municipality can subject to police regulations, with any color of reason. Then the question arises can the law-making department of the government, in providing for privilege occupation taxes, make such discrimination between parties engaged in like lines of business, as to place additional burdens on one, which piace him, to that extent, at a disadvantage, as compared with the others. It is not disputed that the legislative department has the right to select what occupations shall bear a license tax and what one shall not, and it must be left to its discretion as to what is equal and right in that matter, and it is also admitted, as before stated, that by reason of the fact that this is not strictly speaking a tax on property, it does not come within the letter of the constitutional provision which requires that "All taxes levied on property in this state shall be assessed in exact proportion to the value of such property," (Const. § 211), and, while it may be said that this constitutional provision indicates a general purpose in the constitution to provide absolute uniformity in matters of taxation, and. to that extent may be looked to in construing other provisions, yet without the aid of other provisions and principles of law, it is not controlling in this case. [City Council of Montgomery v. Kelly.] In commenting on this constitutional provision this court has said "So long as the burden falls with equal weight upon every member of a given class, natural and artificial alike, it is difficult to formulate an argument that such levy violates any provision of our own or of the federal constitution."-Quartlebaum v. State, 79 Ala. 4. And. in another case, in which it was decided that this and another similar provision did not apply to a privilege tax required of corporations, Brickell, C. J., said, "We may concede that, when a tax is imposed on avocations or privileges, or on the franchises of corporations it must be equal and uniform. The equality and uniform ity consists in the imposition of the like tax upon all who engage in the avocation, or who may exercise the privilege taxed."-Phoenix Carpet Co. v. State, 118 Ala. 151-2. As a constitutional warrant for this expression of the Chief Justice, our constitution provides that among the inalienable rights of every citizen "are life, liberty, and the pursuit of happiness."-Const. Ala. § 1; also "that the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty and property, and, when the government assumes other functions it is usurpation and oppression." Const. Ala. § 35. While the XIV amendment to the constitution of the United States prohibits a state from making or enforcing "any law which shall abridge the privileges or immunities of citizens," etc. The Supreme Court of the United States has declared that "The legislature may not. under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Laiton v. Steele, 152 U. S. 137. While perfect equality, in taxation of any kind is unattainable, yet "When, for any reason, it becomes discriminative between individuals of the class taxed, and selects some, for an exceptional burden, the tax is deprived of the necessary element of legal equality, and be [City Council of Montgomery v. Kelly.] comes inadmissible."-Cooley on Taxation, (2nd ed.), p. 169, (3rd ed.), pp. 259-260. In a case in Kentucky, where the statute required druggists to pay a license fee of $50.00 for retailing liquors, in addition to the regular druggist's license, the supreme court, while holding that, as a police measure, the subject being spirituous liquors, the license could be sustained, yet as a revenue measure, it would be unlawful "to single out any particular commodity or encumber with a special tax any part * * # * * * of the druggists' trade properly embraced in the conduct of his business as a whole." "The legislature, taxing the whole, cannot again tax the parts This would be such an arbitrary method of taxation as to be a violation of the Bill of Rights."-Commonwealth v. Fowler, 96 Ky. 166, 170. "A city cannot divide a single taxable privilege, and require a separate license for each of the elements."-2 Cooley on Taxation, (3rd ed.), p. 1103, and note 1; Ex parte Sims, 40 Fla. 432; Canova v. Williams, 41 Fla. 509. The effort to fix a discriminative license tax on department stores is declared by the supreme court of Missouri to be a violation of the Bill of Rights.-State ex rel Wyatt v. Ashbrook, 77 Am. St. Rep. 765, 776-7; see also City of Chicago v. Netcher, (Ill.), 55 N. E. Rep. 707. The liberty which is so sedulously guarded by the constitutions of the United States, and of this and other states comprehends more than the mere freedom from personal restraint. It includes the right to pursue any useful and harmless occupation, and to conduct the business in the citizens own way, without being discriminated against either by being prohibited from engaging in it or by being burdened with discriminative taxation. If it be allowed that an additional burden may be placed upon a merchant who chooses to advertise his business by offering a small gratuity to customers in the shape of these trading stamps, it would be equally lawful to place an extra burden on one who advertises his business in the papers, or one who offers, out of his own stock, a certain gratuity to every one purchasing goeds [City Council of Montgomery v. Kelly.] to a certain amount, or one who erects a handsome sign in front of his store, etc. So long as his manner of conducting his business does not offend public morals and work an injury to the public, it is his constitutional right to pursue, on terms equal to that allowed to others in like business, even though his methods may have a tendency to draw trade to him, to the detriment of competitors.-Young v. Commonwealth, (Va.) 45 S. E. Rep. 327; State v. Dalton, 22 R. I. 77; People ex rel Madden v. Dycker, 72 N. Y. App. Div. Sup. Ct. 308; People v. Gillson, 109 N. Y. 389; Long v. State, 74 Md. 565; Ex parte McKenna, 126 Cal. 429. The only cases so far as we have been able to ascertain, in which the courts take a different view of the general subject of trading stamps are Lansburgh v. Dist. Columbia, 11 App. Cases D. C. 512, which was founded on a statute defining what a "gift enterprise" is, (and the court suggested that, even, in that case, the statute would not be operative in cases of a sale of some lawful article, accompanied by a gift where there was no chance and the gift was not the real object of the purchase), and Fleetwood v. Read, (S. Ct. of Washington), 47 L. R. A. 205, which is not supported by any authority. * * * * * * In the case, now under consideraton, the defendant with other merchants, paid the regular license tax assessed in accordance with the amount of stock carried, and the ordinance in question, required of any merchant who issued trading stamps an additional license of $100.00 without regard to the amount of stock carried, and it also made him liable to a fine of $100.00 for each stamp issued, without license. It will be noticed that this license was, not for engaging in any business, but for the manner in which he chose to conduct the business already licensed. This is such a palpable attempt under the guise of a license tax, to fix a penalty on the merchant. for conducting his business in a certain way, that, under the authorities heretofore cited, we hold it to be unconstitutional and void. Our own court has decided that the trading stamp business is not a gift enterprise or lottery.-State v. Shugart, 138 Ala. 86. [Walker v. Winn, Jr., Admr. etc.] As to the powers granted by the city charter of Montgomery, we have not deemed it necessary to go into an exhaustive discussion, although it lies upon the surface that said charter itself provides "that but one license shall be collected or required of any person, firm or corporation, or for any particular trade, occupation, business or profession using but one place of business in carrying on such business, trade, occupation or profession." Acts, 1894-5, p. 635. § 10. The judgment of the court is affirmed. MCCLELLAN, C. J., TYSON and ANDERSON, J.J., concurring. Walker v. Winn, Jr. Admr. etc. Action Upon Promissory Note. 1 Insanity; contracts of insane persons absolutely void. In this state, a contract of an insane person, whether it be a deed or any other form of contract, and whether written or resting in parol, is absolutely void; and therefore a party contracting with an insane person takes no benefit under such contract, nor acquires any title to property obtained by virtue of such contract. 2. Insanity; endorsement of promissory note by payee who is insane, void, and confers no right upon endorser.-The endorsement of a promissory note by the payee therein who is insane, is void and confers no right upon the endorser; and in an action by the endorsee upon a note so endorsed against the maker thereof, the insanity of the payee and endorser at the time of the endorsement and transfer, is a valid defense and can be interposed by the maker. 3. Action upon promissory note; insanity; admissibility of evidence. Where in an action upon a promissory note by an endorsee of said note, the defendant files a sworn plea, denying that the plaintiff was the party really interested in the note sued on, evidence that the payee of the note was insane at the time he transferred it, is competent and admissible, and it is error for the court to exclude such evidence. |