State v. Agee , 83 Ala. 110 ( 1887 )

SOMERVILLE, J.

— The defendant was prosecuted and found guilty of carrying on the business of an “itinerant dealer in fruit trees, vines, shrubs or plants,” without a license, after the act of January 15th, 1887, which exacts a license of fifty dollars from dealers of this class. — Acts 1886-87, p. 36, § 5, sub-div. 10. The City Court decided the act to be unconstitutional, as an attempted regulation of commerce between the States.

The present appeal is taken by the State under, the provisions of section 4515 of the Code of 1886, which reads as follows: “In all criminal cases, when the act of the legislature under which the indictment is found, is held to be unconstitutional, the solicitor may take an appeal, on behalf of the State, to the Supreme Court, which appeal shall be certified as other appeals in criminal cases.”

This is a change of the statute as it existed before the new Code, under the act approved December 8th, 1880, which provided that the constitutionality of a statute, under which- an indictment is found, could be raised only by demurrer to the indictment, and that the State might take an appeal in case the act was held unconstitutional by ruling of the court on such demurrer. Acts 1880-1, p. 65; The State v. Bauerman, 72 Ala. 252. The present statute is broader than that act, and confers upon the State the right of appeal in all criminal cases, where the record affirmatively shows that the trial court held the statute, under which the indictment was found, to be unconstitutional.

This case, on its merits, is in every respect similar to Robbins v. Shelby County Taxing District, 120 U. S. 489, decided by the United States Supreme Court in March, 1887. It was there held that a foreign drummer, or travelling agent of a mercantile firm in the State of Ohio, who sold goods only by sample in the State of Tennessee, could not be lawfully subjected to license in the latter State, as a condition to the exercise of his vocation of soliciting the sale of goods. A law of Tennessee, exacting such license, was held to be unconstitutional, as applied to persons who were itinerant drummers selling goods only by sample for non-resident merchants. The doctrine of that case was adhered to in Corson v. Maryland, 120 U. S. 502.

The Alabama statute under consideration is subject to precisely the same objection as the Tennessee law, which was declared void in the Robbins case.

"Whatever may be our views as to the soundness of this decision, it involves a judicial construction by the Supreme Court of the United States, of a clause of the Federal Constitution, and it is, therefore, binding on this court; and we for this reason adhere to it as conclusive of the present case. Pollard v. Zuber, 65 Ala, 628; Green v. State, 75 Ala. 26.

Judgment affirmed.