Alabama Independent Service Station Ass'n v. McDowell

• Decision Date: 29 January 1942
• Docket Number: 6 Div. 901.
• Citation: 242 Ala. 424,6 So.2d 502
• Court: Alabama Supreme Court
• Parties: ALABAMA INDEPENDENT SERVICE STATION ASS'N et al. v. McDOWELL, Sheriff, et al.

6 So.2d 502

242 Ala. 424

ALABAMA INDEPENDENT SERVICE STATION ASS'N et al. v. McDOWELL, Sheriff, et al.

6 Div. 901.

Supreme Court of Alabama

January 29, 1942

Rehearing Denied March 12, 1942.

Lange Simpson, Brantley & Robinson, of Birmingham, for appellants.

Bowers & Dunn, of Birmingham, for appellee Spur Distributing Co.

Petition for declaratory judgment by Alabama Independent Service Station Association and Howard Aldridge (doing business as Fifteenth Street Service Station) against Holt A. McDowell, as Sheriff of Jefferson County, and Peoples Oil Company and Spur Distributing Company (corporations), as to constitutional validity of Act No. 607, Gen.Acts 1939, p 972, Code 1940, Tit. 2, § 425(1) et seq. From a decree declaring said act unconstitutional, plaintiffs appeal.

Modified and affirmed.

BROWN Justice.

The complaint is filed under the Declaratory Judgment Act, Code 1940, Tit. 7, § 156 et seq., seeking to invoke the court's jurisdiction to enter a declaratory judgment as to the constitutional integrity of Act No. 607, approved July 2, 1940, General Acts 1939, pp. 972, 973, Code 1940, Tit. 2 § 425 (1) et seq., entitled: "An Act To regulate the sale of motor fuel and lubricating oils at retail for use and consumption in motor vehicles so as to require the posting of retail prices and prohibiting the selling of such products at prices other than those posted, and to fix penalties for the violations thereof."

The suit was brought on the law side, was tried and disposed of as an action at law, and bill of exceptions was reserved for the purposes of appeal.

Section 1 of said act makes it unlawful for retailers of motor fuels for use or consumption in motor vehicles, to sell or to deliver to such vehicle for such use therein of "any product whatsoever for use in supplying, creating or generating motive power to such motor vehicle, or lubricating oil for such motor vehicle, unless such person, firm or corporation shall conspicuously and plainly post on the pump or stand from which delivery is made a sign or placard, stating the price or prices of each such product, amount of tax to be stated separately, and so that such prices can be read and easily distinguished by brand or other designation in legible words, letters and figures of uniform size and dimensions, not less than one inch in heighth, which said sign or placard shall be so located and placed that it may easily be seen and read by purchasers or prospective purchasers of such product or oil."

Section 2, after repeating the prohibitory provisions of Section 1, prohibits such sale "except at the exact price or prices contained on the sign or placard required by this subdivision, or to offer, deliver, grant, allow, give or promise, any actual prospective, contingent, immediate or future benefits, concessions, discounts, refunds, premiums, or gratuities of any kind or nature whatsoever, which in any degree, manner or extent shall be calculated or intended to effect or accomplish a sale of such product for other than said posted price or prices." (Italics supplied.)

Section 3 defines "motor vehicle." Section 4 makes a violation of said act a misdemeanor punishable by fine not exceeding $50 or by imprisonment not exceeding six months, or both, and provides that "each day or part of a day shall constitute a separate offense." General Acts 1939, p. 973.

The pleadings are loose in their averments and allege no specific ground on which the statute is supposed to be unconstitutional. The complaint alleges that one of the plaintiffs is a non-profit sharing corporation and represents filling station owners, who operate filling stations, that the other-Howard Aldridge-is engaged in selling and delivering motor fuels and oils for use in generating power in motor vehicles in Birmingham, and is a filling station operator; that said Aldridge and those represented by the other plaintiff are operating in strict compliance with said act, and have been advised that if they sell and deliver such motor fuels in violation of the statute they are liable to be arrested by the sheriff, who is made a party. That the plaintiffs are operating in competition with the defendants who are engaged in a like business; that said defendants or some of them are selling without posting the prices as required by said act and others, although they have posted the prices and brand of their motor fuels are selling in violation of the act in that:

"I. it gives with each purchase of three or more gallons of said gasoline a dish or dishes of a value of, to-wit, more than one cent, which said dish or dishes are not mentioned in the posted price of said gasoline on the pump or stand from which it is sold and

"II. it gives with the purchase of each 10 gallons of gasoline one free chassis lubrication or wash job not mentioned on the sign or placard required by Section 1 of said statute, and

"III. it issues without cost to the receiver thereof coupon books containing, to-wit, $10.00 worth of coupons in denominations from one cent to ten cents which are received and treated as of the value thereon shown in the purchase of gasoline from its station provided that not more than one cent of coupon face value is accepted on each one gallon of gasoline, and

"IV. it offers and gives an actual benefit concession premium or gratuity, viz, one dish or piece of a dinner set not mentioned in the sign or placard required by Section 1 of said statute of a value of, to-wit, one cent or more, with each three gallons of gasoline which is calculated to, and does, effect a sale of such products for other than the proposed price or prices as shown by said sign or placard."

That said defendants are advertising such gifts, by posters on their premises, and in consequence their business in volume has increased, while that of plaintiffs has decreased.

The gravamen of the complaint found in paragraph 3 thereof is thus stated:

"Plaintiff avers that they are engaged in a business actively competitive with the corporate defendants, and with all other sellers at retail of gasoline and other petroleum products in the said county, and that it is greatly detrimental to their business for them to be required to comply with said statute and their competitors, the corporate defendants to fail or refuse to comply therewith.

"Complainants are informed and believe and, therefore, aver, that the defendants challenge and deny the constitutionality and validity of the said statute, and each of the corporate defendants deny that, if constitutional, its terms and provisions prohibit the doing of the acts and things hereinafter charged against them. Plaintiffs aver that the corporate defendants are now engaged, and for a considerable time since the effective date of said statute have been engaged and propose definitely to continue to engage in the practices and conduct hereinafter against them separately charged."

One of the defendants-Alabama Motorists Association-demurred to the complaint on grounds, among others, that its averments did not show a justiciable controversy between the plaintiffs and the defendants. The plaintiffs thereupon amended their complaint by striking the demurrant as a party, and proceeded against the other defendants, Peoples Oil Company, and the Spur Distributing Company, the competitors of the plaintiffs. The sheriff answered, that he did not deny or affirm the averments of the complaint, but joins with the plaintiffs in a request for a declaratory judgment.

The defendant, Spur Distributing Company, Inc., denied the stated averments of paragraph three of the complaint, but "joins in plaintiffs' prayer for adjudication as to the constitutionality of the statute in question, and alleges and avers that said statute is repugnant to and contrary to the Constitution of the State of Alabama, and the Constitution of the United States." The defendant, Peoples Oil Company, answered, admitting that it was engaged in the business of retailing motor fuel, and "That it neither admits nor denies the averments of the complaint," and disclaimed any intention of violating the statute, and "joins in the prayer of the complaint that the constitutionality and effect of said statute be declared by the Court." This answer was filed by said corporation through its lay agent, Nullis, Dist. Supervisor.

On these pleadings evidence was offered, and the circuit court entered a judgment declaring the act unconstitutional and void, the judgment concluding with the statement "No insistence as to, or reference to, the justiciability vel non of the issue presented to the Court having been made in this cause, the same has not been considered by the Court in rendering this judgment."

The testimony was not taken before the judge presiding at the trial. The evidence shows that one of the plaintiffs is engaged in selling motor fuels, delivering such fuels to motor cars and trucks for generating power; and the other claims to represent in some way others engaged in like business, but is not itself engaged in such business. That said plaintiff actually engaged in the operation of filling stations, and those represented by the other, sell what is known to the trade as "nationally advertised products," that is motor fuels advertised over radio hook-up, and in advertising magazines. That plaintiffs and those whom they represent are strictly complying with said Act number 607, and sell for the posted prices without reductions in the form of rebates, premiums and such.

That the defendants are engaged in like business and sell what is known as independent products, not nationally advertised, but which the individual operators, advertise by posters and placards on their respective premises offering premiums glass dishes and...