Curry v. Feld

• Decision Date: 08 June 1939
• Docket Number: 6 Div. 515.
• Citation: Curry v. Feld, 238 Ala. 255, 190 So. 88 (Ala. 1939)
• Parties: CURRY, COM'R OF REVENUE, ET AL. v. FELD ET AL.
• Court: Alabama Supreme Court

190 So. 88

238 Ala. 255

CURRY, COM'R OF REVENUE, ET AL. v. FELD ET AL.

6 Div. 515.

Supreme Court of Alabama

June 8, 1939

Rehearing Denied June 29, 1939.

Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.

Bill for injunction and declaratory judgment by Frederick Feld and J. H. Wilson and M. A. Wilson(partners doing business as Cigarette Sales Company), against the City of Birmingham, and certain individuals, as members of the city Commission, Chief of Police and Comptroller of the City of Birmingham; John C Curry, as Commissioner of Revenue of the State of Alabama, J A. Nelson, as Chief Clerk of the Tobacco Tax Division, and H R. Stone, as Field Agent of the Tobacco Tax Division, of said Department of Revenue.From a decree for complainantsrespondents other than Stone appeal.

Reversed and rendered.

The state and its agents cannot be enjoined from enforcing its revenue statutes nor in the collection of taxes thereunder.

It is alleged in the bill that J. H. Wilson and M. A. Wilson, a partnership, of Murphy, N. C., are doing business under the name of Cigarette Sales Company and that Frederick Feld is one of their agents in the City of Birmingham, Alabama; that complainant Feld solicited written orders for cigarettes in the City of Birmingham, which orders were forwarded to the Cigarette Sales Company.In response to these orders, cigarettes with the orders attached thereto, were sent from Cigarette Sales Company to Feld for delivery to those who had given the written orders for such cigarettes.On April 3, 1939, while Feld was delivering cigarettes he was arrested by police officers of the City of Birmingham, and "charged with doing business without a license in the City of Birmingham, and also charged with violating ordinance No. 321-F of the City of Birmingham"(OrdinanceNo. 321-F being the ordinance levying a tax on cigarettes by the City of Birmingham).It is alleged that the cigarettes were taken from complainant Feld by the city officers and that the total value thereof was $28.35.

It is alleged:

"That said cigarettes were delivered by the said arresting officers, or some other officers, agents or employees of the said City Commission of the City of Birmingham, to the respondent, H. R. Stone, as Agent for the Tobacco Tax Department of the Commissioner of Revenue of the State of Alabama and have never been returned to any of your complainants.

* * *

"That the said twenty-one cartons of cigarettes of various brands hereinbefore referred to in paragraph 3 hereof, have never been returned to either of your complainants, and so far as your complainants know, said cigarettes are in the possession of the respondent, H. R. Stone, as Agent for the Tobacco Tax Department of the Commissioner of Revenue of the State of Alabama, who is wrongfully holding such cigarettes contrary to law and without the consent of the complainants, or has otherwise unlawfully disposed of same; that your complainant, Frederick Feld, as agent for the Cigarette Sales Company, has demanded of the said H. R. Stone the return of said cigarettes, but that the said H. R. Stone has failed and refused to return the same; that all of said respondents herein have threatened to prosecute your complainants, and especially your complainant, Frederick Feld, should he continue his business of taking orders for interstate shipment of cigarettes from Murphy, N. C. * * *"

The bill sets out portions of schedule 159 of the Revenue Act of 1935(Gen. Acts 1935, pp. 441, 530, § 348, schedule 159), alleged to be unconstitutional and void as applied to complainant.

It is further alleged that "respondents are endeavoring to intimidate the customers and patrons of your complainants in the city of Birmingham by threatening them by criminal prosecution and other penalties."It is prayed that respondents Curry and Nelson be enjoined from interfering with complainants in pursuit of their business and restrained from collecting or attempting to collect any amount whatever from complainants or either of them by reasons of said State Tobacco Tax Law; that proceedings pending in recorder's court in the city of Birmingham be enjoined, and that respondents Curry and Nelson be required to deliver up to complainants the 21 cartons of cigarettes taken into the possession of respondents or some one of them.

Complainants filed an amendment to the bill alleging: "That there exists uncertainty and a controversy between your complainants on the one hand and the respondents herein on the other, and all of complainants are interested in, and entitled to have said uncertainty settled and said controversy adjudicated, and your complainants will be affected by the declaration or decree herein prayed for; and the rights, status or other legal relations of your complainants are affected by the statute of the State of Alabama herein referred to as Schedule 159 of Section 348, of the Revenue Code of Alabama, approved July 10, 1935, (Revenue Codep. 347) * * * and there exists uncertainty and insecurity with respect to the said rights, status and other legal relations of your complainants which can be fixed and determined by the declaratory judgment herein prayed for, and which cannot be determined except by said declaratory judgment herein prayed for; * * *

"That the respondents, John C. Curry, as Commissioner of Revenue of the State of Alabama, and J. A. Nelson, as Chief Clerk of the Tobacco Tax Department of the Commissioner of Revenue of the State of Alabama, contend that your complainants are doing business in such manner and under such circumstances as to constitute doing business in Alabama and to make your complainants and their said business subject to Schedule 159 of Section 348 of the State Revenue Code herein referred to.Complainants further aver that by reason of the aforesaid, and the facts herein averred, a justiciable controversy exists between the complainants and respondents with respect to the aforesaid matters."

John W. Lapsley, Counsel for the Department of Revenue, J. Edw. Thornton, Asst. Counsel, and W. J. Wynn and Jas. H. Willis, both of Birmingham, for appellants.

H. M. Abercrombie and Jarrett Abercrombie, both of Birmingham, for appellees.

THOMAS Justice.

The decree from which the appeal is taken granted the injunctive relief prayed and restrained and enjoined the respondent, City of Birmingham, from interfering in any way with the conduct of complainant's business and redelivered the property seized by the agent of the Commissioner of Revenue of the State of Alabama.

Among other things, the decree states the following:

"1: That the conduct of the business of the complainants as set forth in this cause be and same is hereby adjudged to be a bona fide engagement in interstate commerce.

"2: That so long as complainants conduct their business in such a way as to constitute bona fide transactions in interstate commerce as above described, the complainantFrederick Feld is not liable to the payment of a license tax to the City of Birmingham for and on account of such business, nor are the complainants liable to the City of Birmingham or to the State of Alabama for the respective cigarette stamp taxes levied by said City of Birmingham, and the State of Alabama, under the Ordinance and Act herein described."

The decree of the circuit court further directed the twenty-one cartons of cigarettes seized to be redelivered or that the complainants be paid the alternate value thereof; and granted, as aforesaid, the injunction against the City of Birmingham and respondent Curry, as Commissioner of Revenue of the State of Alabama.

The facts in evidence are fully stated in the decree.The effect...