[Alexander v. Alexander.] bonis non of his estate, the bill contained the following allegations: "In March, 1868, Patrick, Irwin & Co.," factors and commission-merchants in Mobile, to whom the executor had shipped a large quantity of cotton raised on lands belonging to the two estates, "failed, and became insolvent; and the said executor endeavored to collect from them the large balance due, to-wit, $10,000, but without success; and apprehending that he would be held liable to pay the same to the said legatees, on account of his negligence and want of authority in permitting the sums to remain in the hands of said Patrick, Irwin & Co., without any security by them, he endeavored to escape said liability, and to throw the loss of said balance on the said estate or legatees; and to carry into effect his said object, he made what he called (and what purported to be) a final settlement of his said executorship in said court on the 14th June, 1869. On his said settlement, said executor claimed a credit of $2,083.30, against the balance of $7,230,07 found against him on his partial settlement in May, 1867, on the ground that, by the failure of Patrick, Irwin & Co., he had never collected said $2,083.30 from them; and he failed and refused, on said settlement, to charge himself with, or to account for, the said several sums of money, or any part thereof, the proceeds of the sales of cotton made by said Patrick, Irwin & Co. as aforesaid, on the ground that he had never received or collected said money from them. And the plaintiffs charge that said executor claimed said credits with the intent to defraud them and their co-legatees; and that said Patrick, Irwin & Co. had accounted for all of said sums, and placed the same to his credit on their books, and he had charged himself with a portion of said amount, to-wit, $2,083.30, on his said partial settlement on the 13th May, 1867. On said socalled final settlement, plaintiffs were infants of tender years, and wholly under the influence of said executor, who was their uncle, and professed great love for them, and great care and regard for their interests and welfare; and though nominally represented by a guardian ad litem on said settlement, little attention was paid to their rights, and the rights of their co-legatees; and the said court, then and there, wrongfully allowed said executor a credit for said $2,083.30, and refused to charge him with the said several sums, the proceeds of sales of said cotton. And said executor, then and there, with the intent to defraud these plaintiffs and their co-legatees, falsely made his affidavit that he had not, used any of the moneys of said estate for his own purposes; and plaintiffs aver that he had used and converted for his own purposes a large amount of the moneys of said estate, to-wit, the sum of $10,000, and was liable to pay a large sum as interest thereon, to-wit, the sum of $3,000; [Alexander v. Alexander.] yet the said court refused and failed to charge him with any interest on any of the moneys of the estate which came to his hands as executor, and allowed his accounts as stated by him, and rendered a decree against him for $1,264.80, and ordered him to deliver the assets of the estate to his successor in the administration, when such successor qualified," &c. "At the time said settlement was made, said John D. was the executor of Joseph M. Alexander, deceased, and had in his hands, as assets of said estate, a large sum of money, to-wit, the sum of $25,000, one-third of which he, as executor of said Dewitt C., would be entitled to receive on a final settlement of his executorship of said Joseph M.; that the said executor had not made on the 14th June, 1869, and has never made from that time hitherto, a final settlement of his executorship of said Joseph M., and the estate of the said testator remains wholly unsettled, and the interest of the executor of the said Dewitt C. in the estate left by the said Joseph M. has never been ascertained; and therefore the said so-called final settlement of the estate of said Dewitt C., made in said court on the 14th June, 1869, by said executor, is wholly void, and said court had no jurisdiction thereof, and no power to make a final settlement under the circumstances." "Plaintiffs charge that said so-called settlements made by said executor on the 14th June, 1869, were not intended by him as final settlements, but only to cover and conceal his frauds against the legatees of his respective executors. He was then the sole executor of both estates, and the legatees of both estates were all minors, except the said Susan R., Albert A., and Julia A., and were all under the influence of said executor; and said settlements were made by him with the fraudulent intent to escape from the liability which he had incurred in permitting the said moneys, belonging respectively to the two estates, to remain in the hands of said Patrick, Irwin & Co. without security, and which was. consequently lost." The bill contained, also, similar allegations of fraud and misconduct of the said John D. while acting as administrator de bonis non, and similar charges as to the invalidity of his settlements in that capacity; and prayed that the administration might be removed into the Chancery Court, and the accounts of the said executor and administrator be there settled. The chancellor overruled a demurrer to the bill, and also a motion to dismiss for want of equity; and his decree is now assigned as error. BROOKS & ROY, for appellant. PETTUS & DAWSON, contra. [Van Hook v. City of Selma.] STONE, J.-There is nothing averred in this bill which takes it out of the operation of the rule declared in Otis v. Dargan, 53 Ala. 178; Waring v. Lewis, Ib. 615; Hutton v. Williams, 60 Ala. 137; Gamble v. Jordan, 54 Ala. 432. The Probate Court was not without jurisdiction to make this settlement, and inasmuch as the bill fails to show the omission of any steps necessary to put the jurisdiction of the Probate Court in exercise, it is wanting in equity, as it now stands. Whether it can be made to contain equity by amendment, we can not certainly know. Reversed and remanded. Van Hook v. City of Selma. Prosecution for Violation of Municipal Ordinance. 1. License laws; validity of.-The power of the State to authorize the license of all classes of trades and employments, can not be doubted; and there is just as little doubt of its power to delegate this right to municipal corporations, either for the purpose of revenue, or for that of taxation. 2. License for police purposes, or for revenue.-A grant of power to a municipal corporation, to license for police purposes merely, must be exercised as a means of regulation only, and can not be used as a source of revenue; but a license for regulation, in such sum as may be reasonably necessary to promote the legitimate objects of the police power (which includes the protection of the lives, health, and property of citizens, the preservation of public morals, and the maintenance of the peace and good order of the community), in the district in which the ordinance is designed to operate, will be held an exercise of police power, and not of the power of taxation. 3. Amount of license, as affecting character of ordinance.—In determining whether the ordinance is to be construed as an exercise of the police power, or of the power of taxation, the amount required as the price of a license is material; and it is material, also, in determining whether the ordinance is intended for regulation only, or is so exorbitant as to be prohibitory, and therefore ultra vires. 4. Same.-In the case of useful trades and employments, and a fortiori in other cases, the amount exacted for a license, in the exercise of a mere police power, designed for regulation only, is not to be confined to the expense of issuing it, but a reasonable compensation may be charged for the additional expense of municipal supervision over the particular business or vocation at the place where it is licensed; and the courts will not scrutinize the amount too narrowly, with the view of adjudging it a tax. 5. Presumption in favor of municipal ordinance.-When a question is raised as to the reasonableness of a municipal ordinance, having reference to a subject-matter which is within the corporate jurisdiction, it will be presumed to be reasonable, unless the contrary appears on the face of the law itself, or is established by proper evidence. 6. Grant of power to municipal corporation to exercise police powers 70 361 94 158 70 361 100 665 102 176 70 361 112 660 70 361 120 633 70 361 132 330 70 361 142 554 142 555 [Van Hook v. City of Selma.] outside of corporate limits.-The legislature may grant to a municipal corporation the power to enact ordinances, for police powers merely, operating beyond the corporate limits. 7. Ordinance of city of Selma, imposing $10 license for selling goods, wares, and merchandise.-Under the principles above declared, the ordinance of the city of Selma, requiring a license of ten dollars to be paid by all persons engaged in selling goods, wares and merchandise, within the limits of the territory over which jurisdiction is given to the corporate authorities for police purposes, is a valid exercise of that power. APPEAL from the Circuit Court of Dallas. S. W. JOHN, for the appellant.-The grant of power to the corporate authorities of the city ef Selma, by the first section of the act amending the charter of the city, was of "all the police powers and jurisdiction conferred by the charter," outside of the city, for regulating and licensing the sale of goods," &c. This is a grant of police power only, and is to be distinguished from the taxing power, or power to grant licenses for the purpose of raising revenue. The distinction between the two powers is well recognized, and the grant of one does not include the other.-1 Dillon Mun. Corp. § 291; 7b. § 609; 33 N. J. Law, 280; License cases, 5 Wallace, 471-2; Cooley's Const. Lim. 201. The ordinance in this case, under which the proceeding was instituted, imposes a license, or tax, upon persons engaged in various kinds of business in the designated territory, outside of the corporate limits, varying in amount from $5 to $150; and shows on its face that its object and purpose are to raise revenue for the city. As a law for raising revenue, or imposing taxes, outside of the city, for the benefit of the city, it is not within the legislative grant of power, and is an unlawful appropriation of private property to public uses.-Cooley's Const. Lim. 494-5, and authorities cited in note; 1 Dillon M. C. 93; Cheeney v. Hoover, 9 B. Monroe, 345; Covington v. Southgate, 15 B. Monroe, 498; Wells v. Weston, 22 Mo. 38490; Hammett v. Philadelphia, 65 Penn. St. Rep. If there is a reasonable doubt as to the existence of the power, it must be resolved against the corporation.-1 Dillon, § 55; Cooley, 395. JNO. P. TILLMAN, contra.-The act amending the charter of the city of Selma, and granting to it police power and jurisdiction within a specified territory outside of the limits of the city, is a valid exercise of legislative power.-Falmouth v. Watson, 5 Bush, Ky. 660; Mason v. Lancaster, 4 Ib. 406; Dillon on Mun. Corp. $ 609, note. The ordinance under which this proceeding was instituted, though it may incidentally increase the revenues of the city, is a legitimate exercise of the police power and jurisdiction with which the city is clothed. [Van Hook v. City of Selma.] Tenney v. Lenz, 16 Wisc. 566; Carter v. Dow, Ib. 298; State v. Herod, 29 Iowa, 123; Hodges v. Mayor, 2 Humph. (Tenn.) 61. SOMERVILLE, J.-Section 1 of an act of the General Assembly, approved February 12, 1879, so amends the charter of the city of Selma, as to authorize its corporate authorities to have and exercise all the police powers and jurisdiction, conferred by the charter of the city," within a specified territory, adjoining and outside of the city limits.-Acts 1878-79, pp. 454–5. And it is provided, in the same section, that these powers are conferred, among other purposes, "for regulating and licensing the sale of goods, wares and merchandise."-Ib. * * An ordinance was passed, requiring a license of ten dollars to be paid, by all persons engaged in selling goods, wares and merchandise; and, on prosecution instituted against the appellant, he was convicted of a violation of this ordinance, and fined in the sum of ten dollars by the mayor's court. appeal to the Circuit Court of Dallas county, this judgment of conviction was sustained; and, thereupon, an appeal was taken to this court. On The question presented for our consideration is the validity of the ordinance exacting this license. The power of the State to authorize the license of all classes of trades and employments cannot be doubted. And there is just as little doubt of the power to delegate this right to municipalities, either for the purpose of revenue, or that of regnlation. Er parte City Council, in re Knor, 64 Ala. 463; Cooley on Const. Lim. 581. The right here conferred is, to regulate and license for police purposes merely; and the power to license for the purpose of revenue is not to be inferred. It is, indeed, excluded by the clearest implication.-2 Dillon Mun. Corp. 768. It seems well settled by authority, that the power to license, if granted as a police power, must be exercised as a means of regulation only, and cannot be used as a source of revenue. -R. R. Co. v. Hoboken, 41 N. J. (Law), 71; Mayor v. R. R. Co., 32 N. Y. 261; 1 Dill. Mun. Corp. $ 359, note 1. The police power has been held to embrace the protection of the lives, health, and property of the citizens, the maintenance of good order and quiet of the community, and the preservation of the public morals.-Beer Co. v. Massachusetts, 97 U. S. 25; Thorpe v. R. R. Co., 27 Vt. 149. A license for regulation, therefore, in such sum as may be reasonably necessary to promote these objects, in the district. where the ordinance imposing it is designed to operate, may |