The action was on the common counts to recover license claimed to be due under section 361, schedule 51, of the revenue laws, Gen. Acts 1919, pp. 395, 411. There are some pleas and demurrers raising the question of the constitutionality of the act levying the license which will be adverted to later.
After rulings on pleas and demurrers thereto, the cause proceeded on the general issue, and the following agreed statement of facts:
"It is agreed between Plaintiff and Defendant that the following is a true statement of facts in this case for the determination of said cause by the Court, subject to the legal exceptions hereinafter set forth.
"1. That the defendant is a resident of the State of Alabama and City of Montgomery and is engaged in the retail mercantile business in said City of Montgomery, Alabama.
"2. That on to-wit, the 9th day of March, 1932, Montgomery Cash Store, which was then operated by a corporation in which the defendant was not in any way interested, was adjudged a bankrupt in the United States District Court at Montgomery, Alabama, and said business was sold by the Trustee in bankruptcy to one J. H. McCormick; the defendant who had been formerly engaged in the retail business at Bessemer, Alabama, since the year 1919 was in Montgomery for the purpose of acquiring a business and purchased the assets of the Montgomery Cash Store from the said J. H. McCormick and entered into and negotiated a lease with the landlord for said premises from, to-wit, March 9, 1932, until September 30, 1933, and continued to operate the said business at the same location, namely, 24 North Court Street, Montgomery, Alabama. And the defendant has continued to operate a retail store at said location ever since March 9, 1932, and still continues to operate the same.
"3. That thereafter, during the months of March and April, 1932, the defendant in the conduct of and as an incident to his said business at No. 24 North Court Street, advertised in the daily newspapers at Montgomery, Alabama, in words and figures as shown by copy thereof, marked Exhibit 'A,' specifically referred to and made a part of this agreed statement of facts; that defendant proceeded to sell said goods at retail at said location, No. 24 North Court Street, Montgomery, Alabama, in accordance with such advertisement; that after the appearance of said advertisement, the License Inspector of Montgomery County, Alabama, demanded of this defendant that he take out a license as provided by the Act set out in the complaint herein, and was duly and legally cited to show cause why he should not do so, and the defendant has refused to pay said license on the grounds that he is not liable under said Act.
"4. That the Ad Valorem taxes due the State of Alabama and County of Montgomery upon the assets located in said store have been paid and the property belonging to said business has been assessed for the year 1932; that no State or County License has been issued to the defendant to conduct the said business as none has ever been required by the laws of the State unless defendant is liable for license claimed in this suit under the facts herein set out; that he has paid to and secured from the City of Montgomery, Alabama, for the year 1932 and prior to said advertisement and the time of sale hereinabove set forth, a license to do a regular retail mercantile business at said location. That he is not now and never has been engaged in the business of advertising and conducting bankrupt sales, except as disclosed herein.
"Ordered Sold! Bought The Entire Bankrupt Stock of the former Montgomery Cash Store. Come today! Come Every day! Stock and Fixtures Must be Sold Regardless of Price! *Page 448
"Good Grade Outing 2¢ yd. 75¢ Heavy Blue Work Shirts 29¢. Curlee $25 Men's Suits $4.99. Ladies' 25¢ Silk H'kerchiefs 1¢ each. Ladies' Silk Dresses Values up to $10 99¢. Men's Dress Shirts Up to $2.50 Values 47¢. Ladies Silk Hose 6¢ pr. Ladies $1 Wn. Dresses 25¢. Men's Shoes Up to $5 Values Genuine Calfskin $1.98. Yard Wide Heavy Sea Island Sheeting 3 1/2¢ yd. Ladies' Felt Hats up to $5 Values 25¢. Children's Shoes Up to $1.50 Values 25¢ pr. While They Last. You'll have to hurry. Remember, this is only a part of the huge stock we have sacrificed. Come and Bring Your Friends. Former Montgomery Cash Store. 24 North Court St. Montgomery, Ala. J Mar 31/32"
So far as is necessary here to quote, the section under consideration reads as follows: "Before any person, firm or corporation shall sell or be engaged in the business of selling goods, wares, merchandise, or other personal property, such sales being advertised as bankrupt," etc. (italics ours), such person shall do certain things and obtain a license therefor under the terms and requirements of the section.
It is perfectly clear that the defendant was engaged in the business selling goods, wares, and merchandise, and that such goods, wares, and merchandise constituted the bankrupt stock formerly belonging to Montgomery Cash Store and which had been purchased from the trustee in bankruptcy.
The only question then is, Did the defendant advertise the sale of such goods, wares, and merchandise as being a bankrupt stock? As to this, we entertain no doubt. The advertisement clearly is a studied effort to avoid the statute and at the same time to let the public know, in no uncertain terms, that he had for sale the entire bankrupt stock of the former Montgomery Cash Store and at greatly reduced prices. The law will not give countenance to such evasions or subterfuges. The case of Jones v. State, 25 Ala. App. 410,149 So. 855, in no way conflicts with the holding in the instant case and its differentiation is apparent.
Being of the opinion that the schedule, under which this prosecution is brought, is in violation of the Constitution, the writer propounded to the Supreme Court the following inquiry:
"To Hon. John C. Anderson, Chief Justice, and Associate Justices:
"In the above-entitled cause, the validity of schedule 51, § 361, Gen. Acts 1919, pp. 282, 395, 411, is brought in question. It is insisted that the above schedule is in violation of sections 1 and 35 of the Constitution of Alabama and of theFourteenth Amendment to the Constitution of the United States.
"I am of the opinion that the schedule is void in that it is an attempt to interfere with the citizen in the manner in which he may conduct a perfectly legitimate business, and as authorities I call your attention to People ex rel. Moskowitz v. Jenkins, 202 N.Y. 53, 94 N.E. 1065,35 L.R.A. (N.S.) 1079; City Counsel of Montgomery v. Kelly, 142 Ala. 552,38 So. 67, 70 L.R.A. 209, 110 Am. St. Rep. 43; Alabama Consol. Coal Iron Co. v. Herzberg, 177 Ala. 248, 59 So. 305.
"This court is unable to reach an unanimous conclusion on the above and the question is certified to you."
To this inquiry reply was made by the Supreme Court, speaking through KNIGHT, J., in a very exhaustive opinion in which it is held that schedule 51, § 361, Gen. Acts 1919, pp. 282, 395, 411, is a valid enactment and does not violate sections 1 or 35 of the Constitution of Alabama or theFourteenth Amendment to the Constitution of the United States. State v. Kartus, 162 So. 533. By that holding this court is bound.
It follows from the foregoing that the trial court erred in rendering judgment for defendant and the judgment is reversed and one will here be rendered for the plaintiff for the amount sued for, interest and costs.
Reversed and rendered.