The agreed statement of facts, upon which the trial was had, before the court sitting without a jury, makes clear the *Page 557 question at issue; and it is set out in full in the report of the case.
Upon the above, appellant was found guilty. And the action of the trial court in so adjudging him is the only matter presented for our consideration.
We think the said action without error.
It is true enough that a municipality "has no right to levy a privilege or license tax on the delivery of a lawful article or commodity in the city or its police jurisdiction, when the sale or contract of sale was not made in the city or its police jurisdiction." Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 105 So. 214, 218.
But it is just as true that "The city authorities are not confined by law in prescribing a business license charge to a transaction completed within its limits. All the incidents of a sale or delivery need not occur there to make it a taxable event. * * * it may be taxable by a city as an incident of asale, where the contract was made in another city from which it [the article sold] was started on its journey for delivery in the city imposing the tax. Delivery in the city is a material part of the business so conducted." (Italics supplied by us.) City of Decatur v. Poole, 238 Ala. 224, 189 So. 743, 745; Town of Guntersville v. Wright, 223 Ala. 349, 135 So. 634; Edgil v. City of Carbon Hill, 214 Ala. 532, 108 So. 355, 356.
This latter is, we think and hold, the situation here. It will be noted that "Tennille advertises that it delivers free to points within one hundred miles of the City of Montgomery on sales of $50.00 or more." And that "occasionally sales under $50.00 (of which the one here involved is one) are delivered within one hundred miles of the city (to Selma, for instance, in this case) without charge." And of course the purchaser knows this (and knew it in this case) when he makes his purchase.
So that — to refer to the agreed statement of facts, above — when "S.W. Riggs, Selma, Alabama, came into Tennille's store in Montgomery in person and there selected and purchased a Mahogany bed * * * and a Simmons spring * * * and paid cash therefor," he didn't merely purchase a "Mahogany bed and Simmons spring;" but he purchased a "Mahogany bed and Simmons Spring" delivered to him in Selma, Alabama.
It at once appears that the "delivery," which had to be made in Selma, was a part and parcel of the purchase — or, as phrased by Mr. Justice Foster in the opinion in the case of City of Decatur v. Poole, supra: "Of the business so conducted."
Here we may say, as the Supreme Court said in its opinion in the case of Edgil v. City of Carbon Hill, supra: "Defendant was the agent of his principal in violating the ordinance, and may be prosecuted therefor."
The above and foregoing was prepared by me as and for the opinion of the court. But my associates take a different view; as indicated by the opinion written by the Presiding Judge.
As our Supreme Court will have to ultimately decide the question at issue, I have concluded to let the above go as my reasons for my dissent from the opinion of the majority. And will not elaborate further.
I do feel disposed to observe that to my mind it is not proper to consider the act of Fred Russell under scrutiny as simply "one isolated act."
There is no escape from the conclusion that he was acting for Tennille Furniture Co. And that that concernadvertized that "it delivers free within one hundred miles of Montgomery."
It is reasonable to infer that this transaction was but one of many. And it wouldn't be permissible for the Company to "avoid the law" by the simple expedient of sending a different truck driver with each delivery.
Or so it seems to me.
And I dissent.
On Rehearing.