Ineichen v. City of Anniston
| Decision Date | 16 June 1914 |
| Docket Number | 234 |
| Citation | 65 So. 710,10 Ala.App. 605 |
| Parties | INEICHEN v. CITY OF ANNISTON. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 30, 1914
Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.
U.S Ineichen was convicted of violating a municipal ordinance and he appeals. Reversed and remanded.
Merrill & Walker, of Anniston, for appellant.
S.W Tate, of Anniston, for appellee.
The municipal ordinance, for a violation of which defendant was convicted, prohibited the carrying on of any business for which a license was required without first taking out and paying for such license, and among the persons required to take out such a license were dealers in or agents for the sale of pianos or organs.
The defendant, appellant here, admits that he is an agent for the sale of pianos, but contends that the ordinance has no application to him for the reason, as insisted, that he is protected from the payment of the tax levied on account of the fact that in such agency he represents, as appears without dispute, only a nonresident principal, Hallett-Davis Piano Company, whose place of business and factory for the manufacturing of the pianos sold by him, as such agent, is in Boston, Mass., from which point orders taken by him in Alabama for the sale of pianos, in the event they are approved and accepted by his principal when sent in to the home office, are filled by their shipping from such point to the purchaser in Alabama the piano so ordered.
If the facts went no further than as stated, it is clear, under previous adjudications, that defendant is not liable for the tax levied by the ordinance, for in such event there is no doubt but what he was engaged exclusively in interstate commerce as agent for his non-resident principal. Stratford v. City of Montgomery, 110 Ala 619, 20 So. 127; Ware v. Mobile, 146 Ala. 170, 171 41 So. 153, 14 L.R.A. (N.S.) 1081, 121 Am.St.Rep. 21; Stockard v. Morgan, 185 U.S. 37, 22 Sup.Ct. 576, 46 L.Ed. 785; 17 Am. & Eng.Ency.Law, 66, 67. However, it appears that, although that, as has been stated, was the general custom or practice followed by defendant in taking orders and by the said company in filling such orders, yet in two instances, within the limits of the appellee municipality this custom or practice was departed from to this extent: Two of such orders so taken by defendant, sent in to, and accepted and approved by, the principal at the home office, were filled, not by shipments direct from the factory, but by having defendant deliver to each purchaser one of two pianos that had been previously and only shortly before sold and shipped from the factory to two other purchasers, respectively, who,...
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... ... Co. v. Am. C. & P. Co., 9 Ala.App. 152, 62 So. 560, and ... cases cited; Stratford v. City Council, 110 Ala ... 619, 20 So. 127; Lee v. Town of La Fayette, 153 Ala ... 679, 45 So. 294; ... 2, 8 So. 353, 10 L.R.A. 430; ... Tinker v. State, 96 Ala. 117, 11 So. 383; ... Ineichen v. City of Anniston, 10 Ala.App. 605, 65 ... So. 710, and cases cited in each of the foregoing ... ...
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City of Birmingham v. Sales Promotions, Inc., 6 Div. 746
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