This cause was originally assigned to Justice Gardner for preparation of an opinion, but upon consideration thereof in consultation the views expressed therein did not meet with the full approval of a majority of the court. The opinion prepared, however, states the case with citation of authorities, which are likewise reviewed in State Tax Commission v. Hopkins (Ala. Sup.) 176 So. 210,1 this day decided, and these opinions considered together constitute a sufficient discussion of the questions presented and cases noted, without further elaboration here.
All of the members of the court concur in so much of the opinion of Justice Gardner as treats the matter of exemption of the county from any liability on account of the sales tax brought forward by the amendment to the bill, and, therefore, in the affirmance of the decree in that respect.
A majority of the court, consisting of Chief Justice Anderson, and Justices Thomas, Brown, and Knight repudiate in toto the reasoning of the Illinois court in the cases noted so far as applicable to our sales tax, and think that question sufficiently dealt with in State Tax Commission v. Hopkins, supra, and that the tax is applicable in all transactions named in complainant's original bill.
The decree in this respect is therefore reversed, and one here rendered denying complainant the relief it seeks in said original bill.
Justices Bouldin and Foster concur in the reversal of the decree in that respect, but would qualify their concurrence by limiting the sales tax to those matters which constitute merchandise as commonly understood in the commercial world, and as exempting such matters relating to service where the material furnished was but an incident thereto, as stated in Doby v. State Tax Commission (Ala.Sup.) 174 So. 233.2 Justice Bouldin further states his views in a separate opinion hereto attached.
The decree is therefore affirmed in so far as county exemption is concerned, as set out in the amendment to the bill, and reversed as to the application of the sales tax to complainant's business, as appears in the original bill, and in that respect a decree is here rendered denying complainant relief it seeks.
Affirmed in part, and in part reversed and rendered.
ANDERSON, C. J., and THOMAS, BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur as herein indicated.
GARDNER, J., dissents in part.
1 Ante, p. 556.
2 Ante, p. 150.