Graves v. State

• Decision Date: 20 November 1952
• Docket Number: 7 Div. 180
• Citation: 62 So.2d 446,258 Ala. 359
• Parties: GRAVES v. STATE.
• Court: Alabama Supreme Court

Page 446

62 So.2d 446

258 Ala. 359

GRAVES v. STATE.

7 Div. 180.

Supreme Court of Alabama.

Nov. 20, 1952.

Rehearing Denied Jan. 19, 1953.

Graham & Van Derveer, Chattanooga, Tenn., and McKay & Worthy, Sylacauga, for appellant.

Si Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., for the State.

FOSTER, Justice.

This is an appeal from a conviction of appellant in the circuit court for the violation of Title 51, section 569, Code. The charge was that he was a transient or traveling photographer, and was predicated upon the last clause of that statute. Appellant did not have the license there provided for. The following is a statement of the facts taken from appellant's brief:

'On May 22, 1950, under the direct supervision of Olan Mills, Inc., an advance sales unit had solicited orders in the City of Sylacauga, for photographs and had collected a fifty cent deposit on each order. The corporation accepted the orders and notified the customers to appear at the time specified on the order at the Knight Hotel, Sylacauga, Alabama, on May 30, 1950, to have a 'sitting' or 'exposure' made. On May 30, 1950, Leon Graves came to the Knight Hotel in Sylacauga under the supervision of the corporation and made the exposure for each customer and collected from each customer an additional deposit of fifty cents. Leon Graves sent the exposed negatives by the United States mails to the corporation's plant in Chattanooga, Tennessee, where they were developed, processed and proofs were manufactured' and the finished work sent by mail from Chattanooga to the customer.

The only question argued is whether a license imposed on appellant under section 569, supra, is a forbidden burden upon interstate commerce. The section reads in pertinent part, as follows:

'Photographers and photograph galleries.--Every photograph gallery, or person engaged in photography, when the business is conducted at a fixed location: [The amount of license tax is graduated in the cities and towns of the State according to population as there specified.] For each transient or traveling photographer, five dollars per week.'

That question is controlled by decision of the United States Supreme Court to the extent that they apply. We find no such decision directly in point, but that court has rendered many decisions which declare principles of a kindred nature. Our province is to apply them to the present situation to the extent that they are pertinent.

The line of cases, thought by appellant to be controlling, is what is called the 'drummer cases'. That is, those with reference to statutes or city ordinances requiring solicitors or drummers to pay a license tax for soliciting orders for subsequent interstate shipment. See, Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760. Those cases are distinguishable from a sales tax (or use tax) or license tax on the delivery in a city of goods which had been sold for delivery there, and which delivery was at the end of an interstate carriage. McGoldrick v. Berwind-White, 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565. Incidentally, we undertook to follow and apply their reasoning in Sanford Service Co. v. City of Andalusia, 256 Ala. 507, 55 So.2d 856, and Sanford v. City of Clanton, 31 Ala.App. 253, 15 So.2d 303, certiorari denied 244 Ala. 671, 15 So.2d 309. The distinction between the 'drummer cases' on the one hand, and the Sanford and McGoldrick cases on the other, is fully disclosed in the McGoldrick case. See, also, Caskey Baking Co. v. Commonwealth of Virginia, 313 U.S. 117, 61 S.Ct. 881, 85 L.Ed. 1223.

The McGoldrick case, supra, [309 U.S. 33, 60 S.Ct. 398], in distinguishing the 'drummer cases,' pointed out that the delivery, pursuant to a previous contract, was a feature of the performance of the contract, and its transportation, whether from within or without the state, was merely incidental, so that it was not a burden on commerce. It noted that the drummer's tax on soliciting orders for shipment in interstate commerce appears to be aimed at the suppression or placing at a disadvantage this kind of business when brought into competition with intrastate sales, and operated to some extent to place the merchant thus doing business interstate at a disadvantage in such competition. And, in substance, that the state may not by the taxing process curtail a type of interstate commerce in competition with that which is intrastate; and, further, that the drummer's tax has been 'narrowly limited to fixed-sum license taxes imposed on the business of soliciting orders for the purchase of goods to be shipped interstate.' The principle began with Robbins v. Taxing Dist. of Shelby County, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694.

In the McCaskey case, supra, the bread was baked in an adjoining state by a bakery there located. Its agents went into Virginia, took orders for bread and made deliveries from the trucks which had brought the goods across the state line. They delivered the bread in a continuous hauling from the bakery across state lines to the customers in Virginia. It was said that the transportation across the state line was interstate, but that was not the activity which was licensed or taxed. The purely local business is what the act attacks, and this irrespective of the source of the goods sold.

In the case of American Bakeries Co. v. City of Opelika, 229 Ala. 388, 157 So. 206, the driver of the truck carried the bread across state lines to his home and stored it until he was ready to deliver it to his customers. It was held that it was immaterial whether the bread originated within or without the State, the same tax applied and, therefore, there was no discrimination against commerce.

The Alabama law here in question lays a license of one amount on photographers who have a fixed location in the State, and a different amount on a transient or traveling photographer. We see no inherent discrimination there: they may be thus properly classed. Shiff v. State, 84 Ala. 454, 4 So. 419; Ballou v. State, 87 Ala. 144, 6 So. 393; American Bakeries Co. v. City of Opelika, 229 Ala. 388, 389, 157 So. 206; American Bakeries Co. v. City of Huntsville, 232 Ala. 612(12), 168 So. 880.

We understand that Olan Mills, here involved, is doing business of the same sort as a photographer at fixed locations in Alabama as its agents are doing in other locations as transients. This is shown by the record in another case.

The license in both respects is directed against one who pursues the art of photography in Alabama. When a photographer comes into the State, or resides in the State, and moves about in it from place to place, pursuing his profession, he is an itinerant. Shiff v. State, supra. He is then in Alabama rendering some of the essentials of the art of photography as a business, the same as if he had a fixed location here. It is not necessary to perform all the essentials of the art in Alabama to constitute one a photographer subject to license as such in Alabama. The performance of an important feature of it in Alabama is justification for exercising the licensing power. Standard Oil Co. v. City of Selma, 216 Ala. 108, 112 So. 532; Sanford Service Co. v. City of Andalusia, supra. The distinction between such a situation and that of drummers soliciting and procuring sales to be consummated by interstate shipments has been narrowly drawn in express terms, as we have shown. The principle of the drummers' license cases has not been extended by the United States Supreme Court to a situation where there was locally performed an essential physical act in the performance of a transaction and where the license was directed solely at that local activity, and where it is not laid on interstate transportation nor is an undue burden upon it.

The license tax here imposed is not laid on the solicitation of the orders. The solicitation was made and the orders taken before the act of photography occurred. That is done by an advance unit, doing nothing else in their activity but to solicit and receive contracts for photographs to be made, and to receive an advance payment. But later a traveling representative of Olan Mills of Chattanooga, Tennessee, would appear in the city at a named hotel to take the exposures of persons from whom orders had been obtained, and collect an additional sum. He would send the...