Montgomery Beer-Bottling Works v. Gaston

• Citation: 126 Ala. 425,28 So. 497
• Parties: MONTGOMERY BEER-BOTTLING WORKS v. GASTON, JUDGE. GASTON, JUDGE, v. MONTGOMERY BEER-BOTTLING WORKS.
• Decision Date: 29 May 1900
• Court: Supreme Court of Alabama

28 So. 497

126 Ala. 425

MONTGOMERY BEER-BOTTLING WORKS v. GASTON, JUDGE.

GASTON, JUDGE, v. MONTGOMERY BEER-BOTTLING WORKS.

Supreme Court of Alabama

May 29, 1900

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by the Montgomery Beer-Bottling Works against John B. Gaston judge of probate of Montgomery county. From a judgment in favor of plaintiff, plaintiff and defendant appeal. Judgment on appeal of defendant affirmed and on plaintiff's appeal reversed.

This action was brought by Philip D. Puder, doing business under the name and style of Montgomery Beer-Bottling Works, against John B. Gaston as judge of probate of Montgomery county Ala., to recover the sums of $110 and $27.50, paid by Puder to Gaston as license tax in accordance with the provisions of "An act to amend the revenue laws of the state of Alabama," approved February 23, 1899, and commissions thereon.

The complaint as filed contained twelve counts. The first eight counts sought to recover from the defendant $110, which was paid by the plaintiff, as the agent for a foreign brewing company. The remaining four counts sought to recover $27.50 paid by the plaintiff as license tax as a retail dealer in spirituous, vinous and malt liquors. The cause was tried upon issue joined on plea of general issue.

On the trial, the following facts were disclosed: The plaintiff was engaged in business in the city of Montgomery, Ala., on the 1st day of January, 1899, and for several years previous, as well as on the 15th of April, 1899, and at the time of bringing this suit; his business being of selling by retail spirituous, vinous and malt liquors, and also dealing in a certain beer known as the F. W. Cook's Company's beer. He paid for, and took out, on or about, said 1st day of January, 1899, the state and county license at that time required of retail dealers in spirituous, vinous and malt liquors doing business in Montgomery. The beer known as F. W Cook's beer was ordered by plaintiff from the F. W. Cook Brewing Company, at Evansville, Ind., where it is manufactured, by the car load; was paid for on arrival here by plaintiff, and sold by him in the regular course of trade by wholesale and retail, by the keg, or bottle, or draught on his own account, and over his counters, and also from wagons to other dealers. Said beer was bought by plaintiff outright and paid for in money or N.Y. exchange. Plaintiff was not and never had been the agent of the F. W. Cook Brewing Company, and had never acted as such in any matter, but bought the goods from that concern and sold them for his own account as above stated. The F. W. Co. was and is a corporation under the laws of, and doing business in, the state of Indiana, where its brewery was located, and its goods or products were manufactured, and it had no established agency and paid no license in the state of Alabama. On or about April 15, 1899, James R. Stewart, as back tax commissioner for Montgomery county, reported to the judge of probate of Montgomery county the name of the plaintiff as one who was doing business without a license, and that the plaintiff had failed to take out the additional license required of dealers in spirituous, vinous and malt liquors, under subdivision 55 of section 16 of the revenue law approved February 23, 1899, also that he had refused to take a license for selling goods manufactured by a brewery in another state, as required by subdivision 14 of section 16 of said act. Said subdivision 14 was in words and figures as follows:

"(14) For Brewers, One Hundred Dollars. Every agency of a brewery of another state doing business in this state shall pay the same license; and any person, whether retail dealer or not, selling the goods or products of any such brewery, shall be deemed and held an agent, unless such brewery shall have an established agency in this state." Thereupon the probate judge, in accordance with the statute provided therefor, issued citations to the plaintiff requiring him to appear and take out said license. Upon the plaintiff, in response to said citation, appearing before the probate judge, he refused to pay the license imposed by said revenue law upon agents representing nonresident breweries, and also to pay the additional license as retailer in spirituous, vinous and malt liquors, as required by subdivision 55 of section 16 of said act. Thereupon Stewart, as the tax commissioner, threatened plaintiff with immediate arrest and criminal prosecution, unless the said license in both cases and the commissions provided for by the state were paid. By reason of this duress, and under written protest, the plaintiff paid to J. B. Gaston, as judge of probate of Montgomery county, the sum of $100 required by said tax commissioner of the plaintiff for selling the goods manufactured by or the product of a brewery of another state, and the additional sum of $10, as commissions claimed by said commissioner thereon, and the sum of 50 cents to the probate judge for issuing said license. The plaintiff also paid, by reason of such duress, and under written protest, the sum of $25 as additional license for retail dealer in spirituous, vinous and malt liquors, and the sum of $2.50, as claimed by the tax commissioner for commissions, also a fee of 50 cents to the probate judge for issuing said license. The plaintiff then instituted the present action against the said John B. Gaston, as judge of probate of Montgomery county, to recover the said several sums so paid. At the time of the trial, the money sued for was in the hands of the probate judge.

Robert P. McDavid, the secretary of state of Alabama, in answer to a subp na duces tecum to bring with him the journal of the house of representatives of the regular session of 1898-99, produced the book referred to in the record as "Volume 2, Journal of the House of Representatives," which has been certified here by the court below, for the inspection of this court, and subsequently produced volume 1 of the same. This journal was signed by the speaker of the house of representatives and attested by its clerk, and was deposited in the office of the secretary of state within a few days after the adjournment of the regular session of the general assembly of 1898-99. On the margin of page 839, of volume 2, which was produced upon the trial by R. P. McDavid, in answer to the subp na duces tecum, as the journal of the house of representatives, there appeared the following entry:

"'Report of Committee of Conference. Mr. Speaker: The undersigned committee of conference to consider the difference of the two houses on H. B. 935, beg leave to report as follows: After considering the matter, they recommend, (1) the adoption of all the senate amendments; (2) the adoption of the following additional amendments: "Sec. _____. Be it further enacted, that the dispensaries in each municipality shall pay fifty per cent. of such state and county license as were paid by all the saloons in such municipality during the year 1898, payable quarterly, and in no case, less than the amount paid by one saloon," by striking out the words "or long distance telephones," where they occur in the third and fourth line thereof; by inserting in line 19, after the word "each," and before the word "company," the word "telegraph"; by inserting in line 16 of said section, after the word "lines," the following: "And each long distance telephone company, whose lines within the state do not exceed one hundred miles, shall pay at the rate of fifty cents per mile, and each long distance telephone company whose lines within the state exceed one hundred miles, shall pay two hundred and fifty dollars." Respectfully submitted. D. J. Meador, G. B. Deans, W. D. Jelks, on part of the senate. J. J. Mitchell, W. W. Brandon, O. Kyle, on part of house.'

"The House concurred in the conference report: yeas 52, nays, 0. Yeas, Messrs. Speaker, Andress, Arrington, Bayles, Box, Brandon, Brown, Bruner, Burkhalter, Byars, Cameron, Capps, Cheatham, Cofer, Collier, Cornelius, Dameron, Davidson, Davis, Flewellen, Forester, Fuller, Garner, George, Gibson, Greene, Harris, Haynie, Hood, Huey, Hurt, Kelly, Killen, Kyle, Lavretta, Long, Lyle, Matthews, Mitchell, McQueen, Patterson, Poole, Reynolds, Rogers, Sloan, Speaers, Stodghill, Tate, Thigpen, Vaughn, Wallace, White. (52)" The foregoing words contained in said marginal entry do not appear in any other place or part of either of the books introduced in evidence by the plaintiff as the journal of the house of representatives.

It was further shown that the book designated as volume 2 of this journal remained in the office of the secretary of state from the time it was deposited there after the adjournment of the general assembly until about the 2d of May-a space of about two months. On or about the 2d of May, 1899, at his request, the secretary of state permitted Massey, who was the clerk of the house of representatives, to take volume 2 from his office. Messrs. Leon Weil and B. P. Crum, lawyers representing the plaintiff, each testified that prior to the time volume 2 was taken from the office of the secretary of state, the marginal entry copied above was not upon page 839 of said volume; that they examined said record critically for the purpose of finding out whether or not the revenue law here involved had been properly enacted by the legislature.

Charles E. Waller, who was the speaker of the house of representatives, also testified that prior to the taking of volume 2 from the office of the secretary of state, he examined said volume, and there was no marginal entry upon the page 839 of volume 2 of the house journal. The other facts of the case, together with the descriptions of volumes 1 and 2, introduced in evidence, and the batch of paper claimed by the...