Russell v. City of Selma , 29 Ala. App. 552 ( 1940 )

Upon submission of this cause in this court, it was assigned to our associate, Judge RICE, who prepared, and presented for approval, in conference of the court, an opinion expressing his views upon the points of decision involved. The majority of the court not concurring, the following opinion is handed down as the opinion and decision in this cause. RICE, Judge, adhering to the opinion prepared by him, supra, dissents, and employs the opinion prepared by him, above mentioned, to express his dissenting views upon this appeal.

Appellant was convicted in the circuit court for violating the general license tax ordinance of the City of Selma, and from the judgment of conviction this appeal was taken.

The caption of the license tax ordinance involved is as follows: "To prescribe and fix licenses for businesses, occupations, professions, trades and exhibitions in the City of Selma, Alabama."

Said ordinance contains the following provisions, among others, viz.: "Section 1. Each person, firm or corporation engaged in any business, trade, occupation, profession or exhibition, or keeping or carrying on any establishment, or doing any act in this ordinance specified in the City of Selma shall pay to the City of Selma a license therefor as follows:

"9A. Agents for foreign concerns doing business in the City without regard to interstate business, when not otherwise licensed, each — $35.00.

"Section 9. It shall be unlawful for any person, firm or corporation to engage in any of the aforesaid businesses, vocations, occupations, callings or professions in the City of Selma, without first having procured a license therefor, and any violation of any of the provisions in this ordinance shall be punished by a fine of not less than one dollar and not more than one hundred dollars, or by hard labor for the City for not more than 180 days."

The affidavit upon which the prosecution was first commenced and upon which the warrant of arrest was issued charges in short, that within the limits of the City of Selma, or within the police jurisdiction thereof, within 12 months just next preceding and in the county of Dallas and State of Alabama, "the offense of Doing Business without a license in violation of City Ordinance has been committed, and that Fred Russell, Agent Tennille Furniture Co., is guilty of the offense."

The complaint upon which Fred Russell was tried in the court below charged that said Fred Russell, Agent for Tennille Furniture Company, within the corporate limits of the City of Selma, in violation of Section 339 of the City Code of the City of Selma, Alabama (which said City Code Section is set out in the complaint), committed the offense of doing business withouta license.

The complaint appears in the report of the case.

The case was tried in the court below before the presiding judge, sitting without a jury, upon said complaint, defendant's plea of not guilty, and an agreed statement of facts.

The agreed statement of facts is set out in the report of the case, with the exception of "Exhibit A", which is sufficiently referred to and quoted hereinabove.

Upon the trial of this case the burden was on the City of Selma to prove beyond a reasonable doubt that Fred Russell was the agent of Tennille Furniture Company, and that as such agent and within the corporate limits of the City of Selma, or within the police jurisdiction thereof, and within 12 months just next preceding, committed the offense of "Doing Business without License" in violation of the license tax ordinance of said City of Selma, as charged in the complaint. Fuller v. City of Dothan, 26 Ala. App. 91,153 So. 666.

The agreed statement of facts shows that on one, and onlyone, isolated occasion, a specified day, viz.: December 21, 1938, Fred Russell, a negro, the employed truck driver, a servant or employee merely, of Tennille Furniture Company, drove a State licensed truck into the City of Selma, and there, following the instructions and directions of his employer, at Hooper Motor Company, 1317 Water Avenue, unloaded and deposited, or delivered, from said truck a mahogany bed and set of springs, to S.W. Riggs, a resident of the City of Selma, who had purchased said articles from said Tennille Furniture Company, at its store in the City of Montgomery, Alabama, on December 13, 1938, and which said Furniture Company had agreed with said Riggs to transport by one of its trucks, next going to Selma, without any charge, and there unload and deposit, or deliver the same. This one act upon the part of the said Fred Russell was the basis for the charge that he had engaged in thebusiness of acting as the agent of Tennille Furniture Company, a foreign concern, in the City of Selma, without first obtaining a city license therefor, or, as stated in the affidavit and complaint, hereinabove referred to, had committed the offense of "Doing Business without license" in said City of Selma, or within the police jurisdiction of said City, in violation of the license tax ordinance of said City of Selma.

The agreed statement of facts does not show, and consequently there was absolutely no evidence showing, or tending to show, that said Fred Russell was ever in the City of Selma, before, or after, December 21, 1938.

The agreed statement of facts does show that the only place of business of said Tennille Furniture Company is its retail furniture store in the City of Montgomery, Alabama, and that said company has no salesmen or soliciting agents outside of the City of Montgomery, and that said Fred Russell "had no authority whatever to make sales, solicit orders, or to bind said Tennille Furniture Company in any capacity as its agent."

The appellant has assigned as error: (1) The rendition of the judgment of conviction from which appellant appeals; (2) the finding appellant guilty of doing business without a license as charged in the complaint; (3) in adjudging appellant guilty of doing business without a license as charged in the complaint, and (4) in sentencing appellant to perform hard labor for the City of Selma for a term of ten days to pay the fine of five dollars assessed against him and to an additional term of 29 days to pay $14.10 the costs of the prosecution.

The question involved is one that requires no extended discussion. The principle involved has long since been construed and declared by this court, and the Supreme Court. Under the decisions of said courts the conviction of the defendant was erroneous. The sole isolated act of defendant shown by the agreed statement of facts was wholly insufficient to justify, prove or sustain the charge of doing business without a license as charged in the complaint.

Appellant, under the undisputed facts in this case, should have been acquitted of the offense charged in the complaint and should have been discharged from custody upon his trial in the court below. The evidence did not show that he was either the agent of Tennille Furniture Company, or that he engaged in the business of acting as such within the terms and provisions of the license tax ordinance of the City of Selma. The trial court erred in adjudging the defendant guilty of the offense charged in the complaint, and erred also in pronouncing the judgment of sentence against him. Fuller v. City of Dothan, supra. Jones v. State, 25 Ala. App. 410, 149 So. 855; Braxton v. City of Selma,16 Ala. App. 476, 79 So. 150; Weil et al. v. State, 52 Ala. 19; Harris v. State, 50 Ala. 127; Williams v. City of Albany,216 Ala. 408, 113 So. 257; State v. Collins, 200 Ala. 503,76 So. 445.

It appearing from the undisputed facts that the appellant was not guilty of the offense charged in the complaint, the judgment of the lower court from which this appeal was taken is reversed, and as the law requires, the judgment is here rendered acquitting and discharging defendant from further custody in this proceeding.

Reversed and rendered.