Dozier v. State

DENSON, J.

Section 1.7 of an act of the Legislature

approved March 7, 1907, and entitled “An act to further amend the revenue laws of the state of Alabama,” reads as follows:

“Sec. 17. That each person, firm, or corporation either in person or through agents, who solicits orders for the enlargement of photographs or pictures of any character, or for picture frames, whether they make charge for such frames or not, or any person, firm or corporation either in person or through agents, who sells or disposes of picture frames, shall pay a license tax of twenty-five dollars in each county in which they do business; that this act shall not apply to merchants or dealers having a permanent place of business in this state and keeping picture frames as a part or all of their stock in trade.” — Acts 1907 p. 469.

*87 The defendant was arrested under a warrant issued on an affidavit sued out before a justce of the peace, charging him with a violation of this law; the warrant being made returnable to the county court of Montgomery county. The defendant'was tried in said court, and convicted, and from the judgment of conviction he appealed to the city court of Montgomery. In the city court the solicitor filed a complaint, which is in the following language: “The state of Alabama, by its solicitor, complains of Alfred Dozier that within twelve months before the commencement of this prosecution he did engage in or carry on the business of soliciting orders for the enlargement of photographs or of selling and disposing of picture frames without a license and contrary to law, against the peace and dignity of the state of Alabama. S. H. Dent, Jr., Solicitor.” From a judgment of conviction rendered by the city court, this a.ppeal is taken.

The cause was tried on an agreed statement of facts, which is fully set out in the record. It is conceded that the defendant cannot be convicted for delivering the pictures, because the taking of the orders therefor and the delivery in pursuance of the order contracts, in the manner shown by the statement of facts, is interstate commerce. But the insistence of the state is that the sale of the frames for the pictures wras made and completed in Alabama, by the agent, after they came into the state, and while in possession of the agent, and, therefore,, that the transactions in respect to the frames were not interstate, but intrastate, commerce, and that the conviction should be sustained under the latter alternative in the complaint.

The precise question presented by this insistence has never been passed upon by the Supreme Court of the United States, so far as we are advised. The cases decided by that court, which are cited and relied on by the *88 appellant, show in the statement of the facts that the written contracts for the goods were made out and completed by the .soliciting agent, Avith nothing remaining to be done by the delivering agent but to deliver the goods, as Avas the case in respect to the contracts for the pictures in the instant case. In other Avords, the contracts were completed, between the purchaser and the soliciting agent acting, for the company, in such way as made them binding on both parties and of enforceable efficiency by either party upon compliance with its terms. See brief of appellant’s counsel for the cases. In the case in judgment it appears, from the statement of facts, that upon securing the orders for portraits (in form as shoAvn by Exhibit A to said statement), which orders are signed by the customer and witnessed by the agent, an agreement (in form as shown by Exhibit B to said agreed statement of facts) is signed by the agent, acting for the company, and left with the customer, and a duplicate thereof is forwarded to the company in Chicago. Construing the two exhibits together, it seems to us clear of doubt that no sale was made by the soliciting agent of the frame. The purchaser is not bound by the terms of either of the exhibits to accept and pay for a frame, and the extent of the meaning of the two is that an opportunity Avill be afforded the purchaser, at the time the portrait is delivered, to purchase a suitable frame, so that the minds of seller and purchaser do not concur in the consummation of a sale contract, in respect to the frame, until the delivering agent has exhibited the frame, with its price, and the purchaser accepted it at that price. It is at that time the sale is consummated, and not before.

It is true that the Supreme Court of Smith Carolina (in the case of State v. Coop, reported in 52 S. C. 508, 30 S. E. 609, 41 L. R. A. 501, and City of Laurens v. El *89 more, 55 S. C. 477, 33 S. E. 560, 45 L. R. A. 249) has decided the question contrary to the conclusion we here reach; and that Judge Speer, United States District Judge, in the case of Chicago Portrait Company v. Mayor, etc. of the City of Macon, (C. C.) 147 Fed. 967, adopted the reasoning employed in the Coop Case, supra, and reached the same conclusion as was arrived at in that case. But the United States District Court is not a court of last resort; and we are not impressed nor persuaded by the reasoning employed by the South Carolina Court, but prefer to accept and follow that of the Supreme Court of Maine in the case of State v. Montgomery, 92 Me. 433, 43 Atl. 13, and that of the Supreme Court of Georgia in the case of Chrystal v. Mayor, etc., of the City of Macon, 108 Ga. 27, 33 S. E. 810, in which cases the same conclusion was reached that we here announce. The sale of the frames, in the manner and under the circumstances disclosed by this record, did not constitute interstate commerce.

There is no merit in the contention that the law is in conflict with the Federal Constitution, in that it discriminates in favor of merchants having a permanent place of business as against merchants residing without the state. It is too clear for argument that any merchant, whether he resides in the state or out of it, may he exempt from the license, provided he has a permanent place, of business in the state and keeps picture frames as a part or all of his stock in trade. In other words, this condition or exception applies to all alike whether residents or non-residents, and there can be no discrimination where this is true.

Construing the bill of exceptions most strongly against the exceptor, as the rule requires shall be done (McGehee's Case, 52 Ala. 224), it must be held that the court committed no error in giving the general affirma *90 tive charge, with hypothesis, requested by the state, nor in refusing that requested by the defendant.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.