City of Mobile v. Phillips , 146 Ala. 158 ( 1906 )

WEAKLEY, J.

The appellee was engaged in the business of a retail beer dealer in Mobile, and had taken out his license as such retail dealer for 1904. This prosecution was instituted against him for a violation of the license ordinance of said city, in that he had sold beer by the barrel without first taking out a license from the city to carry on such business, for which, by another section of the ordinance, a license was required.

It is contended for appellee that section 43 of the charter of Mobile (Acts 1901, p. 2347 et seq.) operates to exempt him from taking out a licence for selling beer by the barrel, etc., because he had already obtained a license as a retail beer dealer. We think there is no merit in this contention. The section of the charter rélied on provided “that not more than one license under this act shall he assessed against or collected from partners trading or business done under a firm name.” Appellee was enjoying two separate privileges, and, unless some other valid reason may be found to exempt him, should procure a license for each. The section quoted was intended merely to authorize a partnership or firm business, in which several persons are interested, to be conducted upon payment of one license.

íhe other question for consideration is whether, under the facts agreed on, the license tax is a regulation of or imposition upon interstate commerce, and invalid under the commerce clause of the constitution of the United States, and upon this question the decisions of the supreme court of the United States are paramount authority. We do not deem it necessary to review the decisions of that court upon the question involved, or similar questions, nor will we undertake to analyze or harmonize them. The comparatively recent cases of Am. Steel & Wire Co. v. Speed, 192 U. S. 520, 24 Sup. Ct. 365, 48 L. Ed. 538; and Kehrer v. Stewart, 197 U. S. 60, 25 Sup. Ct. 403, 49 L. Ed. 663, in each of which the court was unanimous, have led to a clearer understanding of the true distinction between the cases, and will enable other courts with more accuracy to determine whether, under a givin state of facts, there has or has not been imposed by the state or a municipal subdivision thereof an unconstitutional imposition or burden upon interstate commerce. It must be held upon the authority of Kehrer v. Stewart, supra, and the authorities therein cited, that appellee was carrying on an independent domestic business, for which the city of Mobile had the right to require the pro-payment of a license tax. Indeed, this is a stronger case for the city than the one just cited. Our own cases of State v. Agee, 83 Ala. 110, 3 South. 856; Keith v. State, 91 Ala. 2, 8 South. 353, 10 L. R. A. 430; and Stratford v. City Council of Montgomery, 110 Ala. 619, 20 South. 127, which were rested upon decisions of the supreme court of the United States referred to in the opinions, are not similar to this, nor in conflict with the conclusion here reached. If they are read in connection with tbe two leading cases first above cited, the lines of demarcation mil be apparent.

Tbe city court erred in giving tbe affirmative charge for appellee. It should have been given for tbe city of Mobile.

Reversed and remanded.

Tyson, Simpson, and Anderson, JJ., concur.