City of Anniston v. Jewel Tea Co.

This is a suit by the city of Anniston against the Jewel Tea Company, a corporation, to collect a license tax from the defendant for doing business as a peddler with a one-horse wagon in the city of Anniston during the years 1917 and 1918; said license being for $75 each year and 50 cents for issuing the same.

The plaintiff introduced in evidence the license ordinance for the said city for the years 1917 and 1918, giving the city the right to collect from each person, firm or corporation engaged as a peddler in said city with a one-horse wagon a license of $75 per annum and a 50 cent fee for issuing the same.

There was evidence showing the nature, character, and manner of the business engaged in by the defendant, and the judge trying the case without a jury rendered judgment in favor of the defendant.

The facts in the case of Johnston v. State, 78 So. 419 , 1 are differentiated from the facts in the instant case, in that in the Johnston Case there was room for the inference that the defendant was engaged in doing business in Alabama and the method used a subterfuge to evade the revenue laws of the state, while the facts in the case at bar, by the undisputed evidence, show orders taken for merchandise, sent to another state, and the identical purchases delivered to the purchaser on contracts or purchase binding on each party. The facts, therefore, bring this case well within the principles involved in the case of Dozier v. State, 218 U.S. 124 , 30 Sup. Ct. 649 , 54 L.Ed. 965 , 28 L.R.A. (N.S.) 264. The business transacted being therefore interstate commerce the court did not err in rendering a judgment in favor of the defendant.

The general rule is that he who affirms must prove, and that one is not required to prove a negative. An exception to this rule, however, is that when the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. Such is the rule in civil and criminal prosecutions for the doing of an act which the statutes do not permit to be done by any person except those who are duly licensed therefor. While it is true that the instant case is a civil proceeding and the allegation in the complaint is that the defendant had not obtained and paid for a license, yet when it was shown, as was done, that the defendant was engaged in a business that required a license, it was a matter of defense for the defendant to show that he had obtained and paid for such license. Bibb v. State, 83 Ala. 84 . 3 So. 711 ; Ex parte Oliver, 21 S.C. 318 , 53 Am. Rep. 681 . But, under the facts in this case, the defendant was not required to have a license, and therefore this question is not of moment.

We find no error in the record, and the judgment must be affirmed.

Affirmed.

On Rehearing. The original opinion in this case is withdrawn, the foregoing opinion substituted, application of appellee for rehearing granted, former judgment of reversal set aside, and the judgment of the lower court is affirmed.

1 16 Ala. App. 425 .

MERRITT, J.

This is ¿ suit by the city of Anniston against the Jewel Tea Company, a corporation, to collect a license tax from the defendant for doing business as a peddler with a one-horse wagon in the city of Anniston during the years 1917 and 1918; said license being for $75 each year and 50 cents for issuing the same.

The plaintiff introduced in evidence the license ordinance for the said city for the years 1917 and 1918, giving the city the right to collect from each person, firm or corporation engaged as a peddler in said city with a one-horse wagon a license of $75 per annum and a 50 cent fee for issuing the same.

There was evidence showing the nature, character, and manner of the business engaged in by the defendant, and the judge trying the case without a jury rendered judgment in favor of the defendant.

The facts'in the case of Johnston v. State, 78 South. 419 , 1 are differentiated from the facts in the instant case, in that in the Johnston Case there was room for the inference that the defendant was engaged in doing business in Alabama %nd the method used a subterfuge to evade the revenue laws of the state, while the facts in the ease at bar, by the undisputed evidence, show orders taken for merchandise, sent to another state, and the identical purchases delivered to the purchaser on contracts or purchase binding on each party. The facts, therefore, bring this case well within the principles involved in the ease of Dozier v. State, 218 U. S. 124 , 30 Sup. Ct. 649, 54 L. Ed. 965 , 28 L. R. A. (N. S.) 264. The business transacted being therefore interstate commerce the court did not err in rendering a judgment in favor of the defendant.

The general rule is that he who affirms must prove, and that one is not required to prove a negative. An exception to this rule, however, is that when the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. Such is the rule in civil and criminal prosecutions for the doing of an act which the statutes do not permit to he done by any person except those who are duly licensed therefor. While it is true ■that the instant case is a civil proceeding and the allegation in the complaint is that the defendant had not obtained and paid for a license, yet when it was shown, as was done, that the defendant was engaged in a business that required a license, it was a matter .of defense for the defendant to show that he had obtained and paid for such license. Bibb v. State, 83 Ala. 84 . 3 South. 711 ; Ex parte Oliver, 21 S. C. 318, 53 Am. Rep. 681 . But, under the facts in this case, the defendant was not required to have a license, and therefore this question is not of moment.

We find no error in the record, and the judgment must be affirmed.

Affirmed.

16 Ala. App. 425 .