Crum v. Town of Prattville

HARALSON, J.

The defendant, L. Y. Crum, was arrested on affidavit and warrant, and was tried by the intenda.nt of the town of Prattville, and fined $20, on the charge of carrying on business in said town, without a license, as required under subdivision 2, § 134, of the Code of said town. He appealed to the circuit court, where he was charged on complaint, with “retailing-goods, wares, or merchandise, within the corporate lim *156 its of said town, without haying- obtained a license therefor, as provided by the ordinance of said town.”

Several questions are presented, on assignments, of error, which we deem it. unnecessary to consider. The affirmative charge was given for the plaintiff, and a like charge requested for defendant was refused.

The defendant was tried before the intendant, as stated, charged with carrying on business in Prattville Avith-out a license as required by ordinance of the toAvn; and in the circuit court, on a charge' of retailing goods, wares and merchandise in said toAvn, Avithout a license.

There is no evidence that he did either of the acts with Avhieh he is charged, whether before the intendant or the circuit court. He did not sell anything in the town of Prattville or elsewhere in the county of Autau-ga, nor is it shown that any of the goods referred to Avere sold in said town; but it does appear that the orders for the goods as made, were effected outside of said town in the county of Autauga. The goods that were sold in that county were sold by salesmen for the Omaha Grocery Company of Nebraska, on written orders procured by them and sent to the company for their approval. If approved, the goods as thus ordered, were shipped in packages by the company, consigned to themselves, at Prattville, and the defendant, who had no interest in the matter, other than as an employe of plaintiff, simply delivered the goods to the purchasers on the payment of the price therefor. In a case, on substantially the same facts as in this case, the Supreme Court of Texas held that the accused was engaged in interstate commerce, and was not subject to conviction for nonpayment of an occupation tax, imposed on traveling salesmen engaged in selling patent or other medicines. To the same effect is our recent case of Lee v. Intendant of LaFayette, 153 Ala. 675 , 45 South. 294 , citing decisions from this and *157 other jurisdictions, including cases from, the Supreme court of the United States; Asher v. Texas, 128 U. S. 129 , 9 Sup. Ct. 1, 32 L. Ed. 868 ; Leloup v. Port of Mobile, 127 U. S. 640 , 8 Sup. Ct. 1380, 32 L. Ed. 311 ; Leisy v. Hardin, 135 U. S. 100 , 10 Sup. Ct. 681, 34 L. Ed. 128 . The defendant, under the facts disclosed, was not liable for a license tax.

There was error in giving the general charge for the plaintiff, and in refusing a like charge for the defendant. Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.