Furman Farm Improvement Co. v. Long , 113 Ala. 203 ( 1896 )

BRICKELL, C. J.

The statute, (Code of 1886, §§ 139-45), requires that any person, or firm, or corporation, or association of persons, selling or exchanging, dr dealing in commercial fertilizers must obtain a license from the commissioner of agriculture, and declares all sales or exchanges made without such license are void. So far as any definition is now material, the license may be defined as the permission and authority of the State to engage in and carry on the particular business to which it refers — the selling, exchanging, or dealing in commercial fertilizer. There is not in it, as there is not in such license generally, any element of transfer or as-signability, and the privilege it confers is purely and strictly personal, yet, there is no requirement that the licensee shall have any particular qualification. Whoever may have legal capacity to contract, is entitled as matter of right to the license on the payment of the prescribed fee. If the businesses carried on to any extent, the employment of agents or servants will become a necessity, and whether the necessity exists, resides in the discretion of the licensee. If agents are employed, and for the licensee they make sales or exchanges, the transaction is as valid as if the sales or exchanges were made by the licensee in person. The licensing of the occupation or business of retailing spirituous liquors, has been the policy of the State from its organization, and the granting of the license has been guarded by very stringent requirements, one of which is that the licensee must be possessed of good moral character, and there are prescribed oaths he must take. Yet, it has never been doubted, that when the license has been obtained, the licensee may conduct the business by servants or agents. In Long v. State, 27 Ala. 36, it is said : “We also concede, that when a license has been granted to an individual, he may exercise the privilege it confers, by his clerk or agent; for the acts of his clerk or agent, are, in law, his acts and nothing more.”

The uncontroverted facts, as disclosed by the bill of exceptions, are, that the fertilizer the price of which forms the consideration of the bond on which the suit is founded, were sold by Riggsbj^ & Williamson, as the agents of one Jasper Smith, who had, at the time of the sale, a license from the commissioner of agriculture. A sale by an agent, is a sale by the principal; it is in law the act of the principal, when the agent keeps in the line of his authority. It was not the less the act of the principal, because made when he was not present, and at a distance from his residence or usual place of business. The statute does not confine the licensee to any particular locality in making sales or exchanges, nor does it require his personal presence at the time they are made. Smith may have been the agent of Adair Bros. & Co. for the sale of fertilizers, and having the agency, may have been the inducement for obtaining the license, but having obtained it, he had authority to make sales or exchanges, by himself, or by his servants or agents. The court below erred in excluding the license to Smith, and if it had been received, upon the uncontroverted facts, should have instructed the jury the plaintiff was entitled to recover.

We do not deem it necessary to pass upon the rulings of the court, upon the rather voluminous pleading with which the record abounds. The question the appellant evolves from them relating to the constitutionality of the statute, can scarcely be regarded as open for argument in this court.-Steiner v. Ray, 84 Ala. 93; Merriman v. Knox, 99 Ala. 93; Brown v. Adair, 104 Ala. 652. Independent of that consideration, it is not the practice of the appellate courts to consider questions of constitutional law, when the case before them may be decided upon some other clear ground.-Cooley Const. Lim., 163; Smith v. Speed, 50 Ala. 276.

Let the judgment of the circuit court be reversed and the cause remanded.

Reversed and remanded.