Opinion
2 Div. 681.
April 30, 1940. Rehearing Denied November 6, 1940.
Appeal from Circuit Court, Dallas County; John Miller, Judge.
Fred Russell was convicted of doing business without a license, in violation of an ordinance of the City of Selma, and he appeals.
Reversed and rendered.
The complaint upon which the defendant was tried in the Circuit Court is as follows:
"The City of Selma, a municipal corporation under the laws of the State of Alabama, complains of Fred Russell, agent for Tennille Furniture Company that within twelve months before the commencement of this prosecution and within the corporate limits of the City of Selma, said Fred Russell, agent for Tennille Furniture Company committed the offense of doing business without license, in violation of Section 339 of the City Code of the City of Selma, Alabama, which said section is as follows:
" 'Section 339 — Any person who does, carries on, pursues or follows any profession, business, trade, avocation, occupation or calling without first having paid for and taken out a license as required by law in such cases (Section 9A of the City of Selma License Schedule for 1937 provides as follows: "Agents for foreign concerns doing business in the City without regard to interstate business, when not otherwise licensed, each $35.00"), must, on conviction be punished by fine, fine and imprisonment, or put to hard labor for the City.'
"The City of Selma further avers that Fred Russell, agent for Tennille Furniture Company was arrested on said charge and was duly tried in the Recorder's Court of the City of Selma on the 13th day of January, 1939, was adjudged guilty and was sentenced to pay a fine of Two and 50/100 ($2.50) Dollars, together with costs of said Court, to the City, or in default thereof to perform ten (10) days labor on the streets; that it is from such sentence and judgment that this appeal was taken."
The case was tried upon an agreed statement of facts, as follows:
"Frank Tennille Furniture Company is a corporation organized under the laws of the State of Alabama with its only place of business consisting of a retail furniture store in the City of Montgomery, Alabama. Tennille engages in the business of selling furniture at retail. Its sales are made for cash or on retention of title contracts executed by the purchaser at the time the sale is made. Practically all of Tennille's sales are made to purchasers in person in the store in Montgomery. Occasionally sales are made by orders through the mail or by telephone but in those cases the charge is made against the purchaser for the purchase price immediately upon acceptance of the purchaser's order. Deliveries are made in and out of the City of Montgomery by common carrier and by trucks owned by Tennille on which the State license is paid. These trucks are driven by negro truck drivers employed by Tennille but these drivers have no authority whatever apparent or actual to do anything except drive the trucks and deliver the merchandise. The drivers have no discretion in driving the trucks or making deliveries. Their routes are planned for them and they simply carry out orders in delivering the merchandise. Tennille advertises that it delivers free to points within one hundred miles of the City of Montgomery on sales of $50.00 or more and within the City of Montgomery on all purchases. Tennille has no salesmen or soliciting agents outside of the City of Montgomery.
"Tennille's merchandising plan, from which it does not vary, is as follows; Tennille purchases its stock of merchandise in single units or in lots of six, twelve or more. Each article with a description of it and its number is listed separately in its stock record book. In the case of single units the article is placed on the floor for sale with a tag showing that it is a single unit so to speak. When it is purchased by a customer it is immediately marked sold and the customer's name marked on the tag. The salesman's sales ticket is immediately turned over to the stock clerk and an entry is made in the stock record book showing that the article has been sold. The article is then delivered. In the case where several of a particular item are purchased by Tennille one of the articles is placed on the floor and the other similar articles are stored in Tennille's warehouse which is a part of the main store building. Each of said articles is entered separately in the stock book with a description of each article and its number. The article on the floor is marked with a tag showing the number of similar articles in the warehouse. Immediately upon the purchase of the article on the floor the tag is marked by the salesman to show that one of said articles has been sold. The salesman's sales ticket goes to the stock clerk and he immediately enters on the stock record book opposite the entry of one of said articles the fact that said article has been sold and the purchaser's name. Then the particular article in the warehouse which is shown on the stock record book as having been sold is tagged with the customer's name and is immediately moved to the shipping room from which it is delivered to the customer. This procedure is followed regardless of whether or not the sale is for cash or on retention of title contract.
"There is no charge made by Tennille for deliveries in the City of Montgomery or on purchases of over $50.00 within one hundred miles of the city. Occasionally sales under $50.00 are delivered within one hundred miles of the city without charge. The same gross profit is realized on all sales regardless of where delivery is to be made and the expenses of the deliveries is simply a charge against general operating expense and is not added to the price charged for the article delivered. On deliveries over one hundred miles the delivery charge is paid in addition by the purchaser and such shipment is made always by common carrier.
"In this case the City of Selma charged Fred Russell, as the agent of Frank Tennille Furniture Company, with the violation of an ordinance of said city which ordinance is as follows: '9A. Agents for foreign concerns doing business in the City without regard to interstate commerce, when not otherwise licensed, each — $35.00.' It is agreed by the undersigned parties in said suit that the license laws of the City of Selma for the year 1937, published in book form, and adopted by the City Council on December 28, 1936, and approved by the Mayor of the City of Selma on December 29, 1936, a copy of which is attached hereto and made a part hereof and marked Exhibit 'A' shall be considered a part and parcel of the agreed statement of facts the same as if incorporated herein and made a part hereof and the validity of the ordinance relative to the agreed statement of facts insofar as the passage or enactment of the ordinance is concerned is not an issue. The facts are that on, to-wit, December 13, 1938, S.W. Riggs, Selma, Alabama, came into Tennille's store in Montgomery in person and there selected and purchased a Mahogany bed, factory No. 141, store No. 762, and a Simmons spring, factory No. 310, store No. 2676, and paid cash therefor the sum of, to-wit, $43.00 There was in stock only the one Mahogany bed and it was marked sold to S.W. Riggs in accordance with the merchandising plan heretofore outlined. There were, to-wit, twelve similar springs and the plan heretofore outlined was followed with reference to the sale of this spring and one of the springs in the warehouse was marked with the customer's name and moved down to the delivery or shipping room. Said sale was under $50.00 but Tennille agreed to deliver the two articles to the purchaser at Selma on the next truck of Tennille going to Selma free of charge. This delivery was made on the 21st day of December, 1938, by depositing the goods, wares and merchandise, above described, at Hooper Motor Company 1317 Water Avenue, in the City of Selma, Alabama, on December 21, 1938, and this delivery was the basis for the charge that Fred Russell as agent of Frank Tennille Furniture Company had violated the aforementioned ordinance. The driver was Fred Russell, a negro employee of Tennille, employed simply to drive its trucks wherever he was directed by his employer and to make deliveries of merchandise. The State license for the operation of the truck was paid. The negro driver had no authority whatever to make sales, solicit orders or to bind Frank Tennille Furniture Company in any capacity as its agent.
"The above statement is submitted as an agreed statement of facts by the undersigned parties in said suit."
Ball Ball, of Montgomery, for appellant.
A city is without authority to require a license of a non-resident who completes a sale outside of the city and delivers the article in the city. Bellingrath v. Georgiana, 23 Ala. App. 111, 121 So. 458; Williams v. Albany, 216 Ala. 408, 113 So. 257; Brown v. State, 22 Ala. App. 31, 111 So. 760; White v. Decatur, 225 Ala. 646, 144 So. 873, 86 A.L.R. 914; Woco Pep Co. v. Montgomery, 213 Ala. 452, 105 So. 214; Code 1923, §§ 1992, 2152 (1), 2154, 2173; Gen. Acts 1932, p. 240; Gen.Acts 1919, p. 1030, § 1; Birmingham v. Sloss-Sheffield Steel I. Co., 225 Ala. 71, 142 So. 55. Delivery of an article sold in another city is not doing business in the city where delivery is made. Woco Pep Co. v. Montgomery, supra; Citizens' Nat. Bank v. Buckheit, 14 Ala. App. 511, 71 So. 82; Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 73 So. 403; Wagner v. Covington, 251 U.S. 95, 104, 40 S.Ct. 93, 64 L.Ed. 157, 168; 14 A.C.J. 1276, 1286; York Mfg. Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963, 11 A.L.R. 611; Iron City Grain Co. v. Arnold, 215 Ala. 543, 112 So. 123; Gen. Acts 1931, p. 570; 55 C.J. 4532; Pilgreen v. State, 71 Ala. 368; Jones v. Ballard, 19 Ala. App. 460, 98 So. 40; Devoe Raynolds Co. v. Futch-Flowers Co., 19 Ala. App. 610, 99 So. 750. A truck driver who merely drives a truck and makes deliveries without any authority to do anything more is not an agent but merely an employe. State v. Collins, 200 Ala. 503, 76 So. 445; 2 C.J. 422, 520, § 4.
Winston E. Brown, of Selma, for appellee.
Delivery is a material part of the business conducted, and delivery was made within the City of Selma. Defendant by delivering the articles per contract made at the time of sale, did business in the municipality. Edgil v. Carbon Hill, 214 Ala. 532, 108 So. 355; Standard Oil Co. v. Selma, 216 Ala. 108, 112 So. 532; Guntersville v. Wright, 223 Ala. 349, 135 So. 634; Kentz v. Mobile, 120 Ala. 623, 24 So. 952; Woco Pep Co. v. Montgomery, 213 Ala. 452, 105 So. 214.
Carmichael, Crenshaw Simmons, of Opp, amicus curiæ.
Upon submission of this cause in this court, it was assigned to our associate, Judge RICE, who prepared, and presented for approval, in conference of the court, an opinion expressing his views upon the points of decision involved. The majority of the court not concurring, the following opinion is handed down as the opinion and decision in this cause. RICE, Judge, adhering to the opinion prepared by him, supra, dissents, and employs the opinion prepared by him, above mentioned, to express his dissenting views upon this appeal.
Appellant was convicted in the circuit court for violating the general license tax ordinance of the City of Selma, and from the judgment of conviction this appeal was taken.
The caption of the license tax ordinance involved is as follows: "To prescribe and fix licenses for businesses, occupations, professions, trades and exhibitions in the City of Selma, Alabama."
Said ordinance contains the following provisions, among others, viz.: "Section 1. Each person, firm or corporation engaged in any business, trade, occupation, profession or exhibition, or keeping or carrying on any establishment, or doing any act in this ordinance specified in the City of Selma shall pay to the City of Selma a license therefor as follows:
"9A. Agents for foreign concerns doing business in the City without regard to interstate business, when not otherwise licensed, each — $35.00.
"Section 9. It shall be unlawful for any person, firm or corporation to engage in any of the aforesaid businesses, vocations, occupations, callings or professions in the City of Selma, without first having procured a license therefor, and any violation of any of the provisions in this ordinance shall be punished by a fine of not less than one dollar and not more than one hundred dollars, or by hard labor for the City for not more than 180 days."
The affidavit upon which the prosecution was first commenced and upon which the warrant of arrest was issued charges in short, that within the limits of the City of Selma, or within the police jurisdiction thereof, within 12 months just next preceding and in the county of Dallas and State of Alabama, "the offense of Doing Business without a license in violation of City Ordinance has been committed, and that Fred Russell, Agent Tennille Furniture Co., is guilty of the offense."
The complaint upon which Fred Russell was tried in the court below charged that said Fred Russell, Agent for Tennille Furniture Company, within the corporate limits of the City of Selma, in violation of Section 339 of the City Code of the City of Selma, Alabama (which said City Code Section is set out in the complaint), committed the offense of doing business without a license.
The complaint appears in the report of the case.
The case was tried in the court below before the presiding judge, sitting without a jury, upon said complaint, defendant's plea of not guilty, and an agreed statement of facts.
The agreed statement of facts is set out in the report of the case, with the exception of "Exhibit A", which is sufficiently referred to and quoted hereinabove.
Upon the trial of this case the burden was on the City of Selma to prove beyond a reasonable doubt that Fred Russell was the agent of Tennille Furniture Company, and that as such agent and within the corporate limits of the City of Selma, or within the police jurisdiction thereof, and within 12 months just next preceding, committed the offense of "Doing Business without License" in violation of the license tax ordinance of said City of Selma, as charged in the complaint. Fuller v. City of Dothan, 26 Ala. App. 91, 153 So. 666.
The agreed statement of facts shows that on one, and only one, isolated occasion, a specified day, viz.: December 21, 1938, Fred Russell, a negro, the employed truck driver, a servant or employee merely, of Tennille Furniture Company, drove a State licensed truck into the City of Selma, and there, following the instructions and directions of his employer, at Hooper Motor Company, 1317 Water Avenue, unloaded and deposited, or delivered, from said truck a mahogany bed and set of springs, to S.W. Riggs, a resident of the City of Selma, who had purchased said articles from said Tennille Furniture Company, at its store in the City of Montgomery, Alabama, on December 13, 1938, and which said Furniture Company had agreed with said Riggs to transport by one of its trucks, next going to Selma, without any charge, and there unload and deposit, or deliver the same. This one act upon the part of the said Fred Russell was the basis for the charge that he had engaged in the business of acting as the agent of Tennille Furniture Company, a foreign concern, in the City of Selma, without first obtaining a city license therefor, or, as stated in the affidavit and complaint, hereinabove referred to, had committed the offense of "Doing Business without license" in said City of Selma, or within the police jurisdiction of said City, in violation of the license tax ordinance of said City of Selma.
The agreed statement of facts does not show, and consequently there was absolutely no evidence showing, or tending to show, that said Fred Russell was ever in the City of Selma, before, or after, December 21, 1938.
The agreed statement of facts does show that the only place of business of said Tennille Furniture Company is its retail furniture store in the City of Montgomery, Alabama, and that said company has no salesmen or soliciting agents outside of the City of Montgomery, and that said Fred Russell "had no authority whatever to make sales, solicit orders, or to bind said Tennille Furniture Company in any capacity as its agent."
The appellant has assigned as error: (1) The rendition of the judgment of conviction from which appellant appeals; (2) the finding appellant guilty of doing business without a license as charged in the complaint; (3) in adjudging appellant guilty of doing business without a license as charged in the complaint, and (4) in sentencing appellant to perform hard labor for the City of Selma for a term of ten days to pay the fine of five dollars assessed against him and to an additional term of 29 days to pay $14.10 the costs of the prosecution.
The question involved is one that requires no extended discussion. The principle involved has long since been construed and declared by this court, and the Supreme Court. Under the decisions of said courts the conviction of the defendant was erroneous. The sole isolated act of defendant shown by the agreed statement of facts was wholly insufficient to justify, prove or sustain the charge of doing business without a license as charged in the complaint.
Appellant, under the undisputed facts in this case, should have been acquitted of the offense charged in the complaint and should have been discharged from custody upon his trial in the court below. The evidence did not show that he was either the agent of Tennille Furniture Company, or that he engaged in the business of acting as such within the terms and provisions of the license tax ordinance of the City of Selma. The trial court erred in adjudging the defendant guilty of the offense charged in the complaint, and erred also in pronouncing the judgment of sentence against him. Fuller v. City of Dothan, supra. Jones v. State, 25 Ala. App. 410, 149 So. 855; Braxton v. City of Selma, 16 Ala. App. 476, 79 So. 150; Weil et al. v. State, 52 Ala. 19; Harris v. State, 50 Ala. 127; Williams v. City of Albany, 216 Ala. 408, 113 So. 257; State v. Collins, 200 Ala. 503, 76 So. 445.
It appearing from the undisputed facts that the appellant was not guilty of the offense charged in the complaint, the judgment of the lower court from which this appeal was taken is reversed, and as the law requires, the judgment is here rendered acquitting and discharging defendant from further custody in this proceeding.
Reversed and rendered.
On April 30, 1940, this court reversed the judgment of the lower court and rendered a judgment upon the testimony as set out in the agreed statement of facts upon which the cause was tried in the lower court. The said judgment here rendered discharged the defendant (appellant) from further custody in this proceeding.
This court held that the testimony involved one, and only one, isolated act upon the part of the defendant, and that this act was not sufficient to constitute doing business as prescribed by the ordinance of the City of Selma. We further held that the defendant was not shown, by the agreed statement of facts, to be an agent of the Tennille Furniture Company, so as to be brought under the provisions of Section 9(a) of the ordinance of said City of Selma, under which the defendant was prosecuted, but that under the testimony, the defendant was a mere servant of the corporation for which he was acting, and without any authority to act as the agent of said corporation.
The appellee, in its application for rehearing, by its attorney, now says that through inadvertence, he omitted to set out in the agreed statement of facts, that the particular transaction out of which the case, in the court below arose, was but one of the many similar transactions, and that it was customary for the principal to make numerous deliveries in the City with its truck, and by its truck delivery, and that it was not desirable on the part, either of appellant or the appellee, to have the case decided on this point. And with reference to this, counsel for appellant say, that it was not the intention of the parties to restrict the issue to a question of one isolated transaction, and that it was their intent that the case should settle definitely the question of whether or not mere delivery by a truck driver who had no authority whatever to do any act, other than the mere actual delivery of articles in one municipality where the same were purchased in another municipality, was doing business in the municipality where delivery was made so as to be subject to an ordinance requiring a license for doing business in the municipality where the delivery is made.
With due respect to eminent counsel, both for the appellant and for the appellee, we feel it proper to say that it was incumbent upon this court to decide the case under the assignments of error contained in the record, and made by appellant, with reference to the testimony in the case, as the same appeared in the agreed statement of facts set out in the bill of exceptions. Said agreed facts showed one, and only one, act of delivery by the defendant. In order for the court below, and for this court to have decided the question as to whether or not under the agreed statement of facts, Fred Russell, the negro truck driver for Tennille Furniture Company was engaged in doing business in the City of Selma as an agent for the said furniture company, whose place of business was in Montgomery, Alabama, then it was necessary for the agreed statement of facts to have shown that said Fred Russell had in fact engaged in the business of acting as such agent in the City of Selma, and one act upon his part was wholly insufficient to sustain the charge as is pointed out in the original opinion.
It is clearly, succinctly and directly stated in the agreed statement of facts, that "the driver was Fred Russell, a negro employe of Tennille, employed simply to drive its truck wherever he was directed by his employer, and to make a delivery of merchandise. The negro driver had no authority whatever to make sales, to solicit orders, or to bind Frank Tennille Furniture Company in any capacity as its agent."
It, therefore, appears that it was stated and agreed to in the statement of facts that Fred Russell was the mere negro employe of Frank Tennille Furniture Company, having no authority whatever to do anything binding upon said company in any capacity as its agent.
The words "employee" and "agent" are used in the agreed statement of facts by trained and skilled lawyers, and if it was agreed to between them that this negro truck driver had no authority whatever to bind the Frank Tennille Furniture Company in any way as its agent, then it appears to this court that the conclusion is irresistible that he could not be convicted under the agreed statement of facts for acting as the agent of said Furniture Company in the City of Selma.
However desirable it may be to definitely settle the question which counsel both for the appellant and for the appellee insist be settled by this court, the rule with us is that that question will be determined when it is properly presented by a record making the decision of that question indispensable. If it is desirable to have the court pass upon the method and manner in which the Tennille Furniture Company conducts its business, in connection with the question under discussion, then let that company itself be directly proceeded against in such manner as to demand a decision with reference to its manner of doing business. Ample methods for this are provided.
Application for rehearing overruled.
The agreed statement of facts, upon which the trial was had, before the court sitting without a jury, makes clear the question at issue; and it is set out in full in the report of the case.
Upon the above, appellant was found guilty. And the action of the trial court in so adjudging him is the only matter presented for our consideration.
We think the said action without error.
It is true enough that a municipality "has no right to levy a privilege or license tax on the delivery of a lawful article or commodity in the city or its police jurisdiction, when the sale or contract of sale was not made in the city or its police jurisdiction." Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 105 So. 214, 218.
But it is just as true that "The city authorities are not confined by law in prescribing a business license charge to a transaction completed within its limits. All the incidents of a sale or delivery need not occur there to make it a taxable event. * * * it may be taxable by a city as an incident of a sale, where the contract was made in another city from which it [the article sold] was started on its journey for delivery in the city imposing the tax. Delivery in the city is a material part of the business so conducted." (Italics supplied by us.) City of Decatur v. Poole, 238 Ala. 224, 189 So. 743, 745; Town of Guntersville v. Wright, 223 Ala. 349, 135 So. 634; Edgil v. City of Carbon Hill, 214 Ala. 532, 108 So. 355, 356.
This latter is, we think and hold, the situation here. It will be noted that "Tennille advertises that it delivers free to points within one hundred miles of the City of Montgomery on sales of $50.00 or more." And that "occasionally sales under $50.00 (of which the one here involved is one) are delivered within one hundred miles of the city (to Selma, for instance, in this case) without charge." And of course the purchaser knows this (and knew it in this case) when he makes his purchase.
So that — to refer to the agreed statement of facts, above — when "S.W. Riggs, Selma, Alabama, came into Tennille's store in Montgomery in person and there selected and purchased a Mahogany bed * * * and a Simmons spring * * * and paid cash therefor," he didn't merely purchase a "Mahogany bed and Simmons spring;" but he purchased a "Mahogany bed and Simmons Spring" delivered to him in Selma, Alabama.
It at once appears that the "delivery," which had to be made in Selma, was a part and parcel of the purchase — or, as phrased by Mr. Justice Foster in the opinion in the case of City of Decatur v. Poole, supra: "Of the business so conducted."
Here we may say, as the Supreme Court said in its opinion in the case of Edgil v. City of Carbon Hill, supra: "Defendant was the agent of his principal in violating the ordinance, and may be prosecuted therefor."
The above and foregoing was prepared by me as and for the opinion of the court. But my associates take a different view; as indicated by the opinion written by the Presiding Judge.
As our Supreme Court will have to ultimately decide the question at issue, I have concluded to let the above go as my reasons for my dissent from the opinion of the majority. And will not elaborate further.
I do feel disposed to observe that to my mind it is not proper to consider the act of Fred Russell under scrutiny as simply "one isolated act."
There is no escape from the conclusion that he was acting for Tennille Furniture Co. And that that concern advertized that "it delivers free within one hundred miles of Montgomery."
It is reasonable to infer that this transaction was but one of many. And it wouldn't be permissible for the Company to "avoid the law" by the simple expedient of sending a different truck driver with each delivery.
Or so it seems to me.
And I dissent.