Opinion
3 Div. 783.
January 14, 1936. Rehearing Denied February 4, 1936.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Action to recover license by the State of Alabama against Zaki N. Azar, doing business as the American Hat Company. From a judgment for plaintiff, defendant appeals.
Reversed and rendered.
Certiorari denied by Supreme Court in Azar v. State, 232 Ala. 80, 166 So. 812.
From the agreed statement of facts the following appears: Defendant was at the time of filing this suit and prior thereto engaged in the retail mercantile business in the city of Montgomery. In June, 1932, defendant, while operating said business, advertised a sale in the newspapers, as an incident to his said business, said advertisement being of a sale of goods saved from fire, and proceeded to sell said goods at the location of his said business; that after the appearance of said advertisement the license inspector of Montgomery county demanded of defendant that he take out a license as provided by schedule 51, § 361, Revenue Laws, Gen.Acts 1919, pp. 282, 411, for engaging in the business of selling goods, advertised as goods damaged by fire, smoke, water, etc., and that defendant has refused to pay said license on the ground that he is not liable therefor. Defendant had theretofore paid all ad valorem taxes due and had paid a license for operating a retail mercantile business aforesaid, and was and is due no other license unless the license here claimed is due. Prior to the advertisement and sale aforesaid (in June, 1932), a fire occurred in defendant's place of business resulting in damage by fire, smoke, and water to a large portion of his merchandise, and from the time of said fire until the completion of said sale so advertised defendant did not replenish his stock nor place therein any merchandise other than that in his store at the time of said fire.
Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellant.
This case is identical with the case of Jones v. State, 25 Ala. App. 410, 149 So. 855, certiorari denied 227 Ala. 400, 149 So. 857; and on the authority thereof the judgment appealed from must be reversed.
A. A. Carmichael, Atty. Gen., and Frontis H. Moore, Asst. Atty. Gen., for the State.
The statute under which this license is claimed is a police measure; liability thereunder accrued upon the performance of a single act. Under the authority of State v. Kartus, 230 Ala. 352, 162 So. 533, 101 A.L.R. 1336, the last expression of the courts upon the subject, the judgment should be affirmed.
Schedule 51, § 361, of the general revenue laws of the state, Acts 1919, pp. 282, 411, has been the subject of construction by this Court and the Supreme Court. Karthaus v. State, 19 Ala. App. 136, 95 So. 563; Braxton v. City of Selma, 16 Ala. App. 476, 79 So. 150; Jones v. State, 25 Ala. App. 410, 149 So. 855; Id., 227 Ala. 400, 149 So. 857; State v. Kartus (Ala.App.) 162 So. 538 ; Id., 230 Ala. 357, 162 So. 541. In the Jones Case, supra, Bricken, P. J., held the defendant not to be liable, and the Supreme Court on certiorari held to the conclusion reached by this court. In the Kartus Case, supra, the writer speaking for the court held the defendant to be liable and stated that the Kartus Case was differentiated from the Jones Case, and on certiorari this view was upheld. The decision in the Kartus Case was based upon a state of facts which made the defendant liable as one engaged in a business for which a license was required, and in the Jones Case, supra, the defendant was not engaged in the business, but as incident to the business in which he was engaged and by the accident of a fire had on hand and as a part of such business some goods damaged by fire, which he had a right to sell without special license. In other words, one who is the owner of a stock of goods and the same is damaged by fire, has a right to dispose of them as such, without additional license. When, however, he is not such owner and enters the business of selling fire damaged goods and advertises same as such, he is subject to the license. In this view the cases cited are in perfect harmony. Recognizing this difference and to eliminate all doubt as to the legislative intent, the Legislature in the general revenue law, Rev. Code 1935, § 348, Schedule 19, has changed the schedule of the 1919 act so as to give a clear meaning to the enactment, in line with the decisions of this court. And in construing the act here in question we can look to that enactment. 59 Corpus Juris, 1035.
The facts in this case as agreed to by both parties bring the case squarely within the influence of the Jones Case, supra, and under that decision the defendant was entitled to a judgment.
As the facts would be the same on another trial, the judgment is reversed, and a judgment will here be rendered in favor of defendant.
Reversed and rendered.