After what has been said, the provisions of the Act levying a privilege tax on the seller or on a business activity of the consumer, or so far as the consumer is concerned, the purchase being made without the state, under Section 2 (d) [Acts Special Session, 1936-37, p. 125], such business activity involved in the purchases without the state can hardly be said to have been done or had within the state.
Looking to the interstate transaction, involving the acquiring of the article without and bring the same within the state, the application for rehearing points with accuracy to discriminations that would result under the opinion. For example, the following discriminations:
If appellant purchased used motor vehicles in Alabama, such sale is exempt; if without the state, such vehicles were brought within the state, such used motor vehicles would then be subject to the two per cent tax. This is a discrimination against the out of state product.
For further example it is urged with force that if appellant manufactures its product outside of the state and brings it in for use in its own business, such manufactured products are taxable. And if a manufacturer within the state uses a portion of its manufactured or processed product in its own business, such products are not subject to the tax levied by Section 2 (a) because not sold. This would appear to be a discrimination against appellant and out-of-state products. State Tax Commission v. Burns, 236 Ala. 307, 182 So. 1. *Page 366
A further illustration is as to appellant's purchases in carload lots. If the purchase is made from a factory in Alabama, the sale is not taxable as purchased from a manufacturer in carload quantities. On the other hand, if appellant purchases or manufactures a carload of articles outside of the state and brings them into the state in carload quantities, it is subject to a tax of two percent.
The foregoing will illustrate the discrimination and unconstitutionality that exists under the construction given by the majority.
The purchase under Section 2 (d) being made without the State, the business activity comprehended by purchase is not done within the State.
It will be observed from what has been said that notwithstanding the expressions contained in the majority opinion to the contrary, that the foregoing out of state transactions could be taxed a second time in such state where the same was actually purchased, and from whence it was brought to the State of Alabama.