Rochell v. City of Florence

• Decision Date: 30 March 1939
• Docket Number: 8 Div. 955.
• Citation: 188 So. 247,237 Ala. 635
• Parties: ROCHELL v. CITY OF FLORENCE.
• Court: Alabama Supreme Court

188 So. 247

237 Ala. 635

ROCHELL v. CITY OF FLORENCE.

8 Div. 955.

Supreme Court of Alabama

March 30, 1939

Rehearing Denied May 4, 1939.

Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.

Bill for injunction by R. R. Rochell, doing business as Orange Crush Bottling Company, against the City of Florence. From a decree dismissing the bill, complainant appeals.

Reversed and rendered.

Horace C. Wilkinson, of Birmingham, for appellant.

W. H Mitchell, of Florence, for appellee.

THOMAS Justice.

The appeal challenges the decree denying permanent injunction and in dismissing appellant's bill.

The ordinance of the City of Florence taxing a firm or corporation engaging in the business of distributing manufactured soft drinks in the City of Florence exclusively from a warehouse located anywhere else is unreasonable and unconstitutional, and of no effect.

The pertinent part of the city ordinance in question is Section 23, which reads as follows:

"Section 23. Bottling Works--Manufacturers or bottlers of soft drinks, extracts, or beverages ........... $200.00

"Any person, firm, or corporation distributing or causing to be distributed in the city soft drinks or similar extracts or beverages exclusively from a warehouse located anywhere ............. $500.00." The bill sets out the ordinance, charges that it seriously hinders, embarrasses, and practically destroys complainant's business in the City of Florence; grossly excessive or prohibitive in character and amount, it prevents the complainant from engaging in the business of distributing soft drinks in the City of Florence at a profit; and prevents all other distributors of soft drinks exclusively from a warehouse from engaging in said business in the City of Florence, Alabama, at a profit.

The bill avers that the license is imposed solely upon the manner in which a party may conduct its business, and that said ordinance is repugnant to the Constitution of the State of Alabama and the Constitution of the United States, and is discriminatory, in that it permits the manufacturer or bottler of soft drinks in the City of Florence to manufacture and distribute soft drinks in the City of Florence, Alabama, for $200 a year, while a distributor of soft drinks in the same city from a warehouse located anywhere is required to pay a license of $500 a year for engaging in the like business that a manufacturer or bottler is allowed to engage in for a license of $200.

The bill further avers that the City of Florence, through its duly constituted officers, agents, and employees, discriminates against the complainant in favor of others engaged in a like business in the enforcement of the ordinance, in that manufacturers of soft drinks who maintain a warehouse in Florence are allowed to distribute drinks in Florence for a license of $200; and in that bottlers in Florence are allowed to purchase soft drinks elsewhere and store or warehouse them in their bottling plants in Florence and distribute them in Florence on payment of a license of $200.

Otherwise stated, the bill charges that the duly constituted officers, agents, and employees of the City of Florence allow bottlers in Tuscumbia and Sheffield to distribute soft drinks manufactured in those towns in the City of Florence on payment of a license of $200; while complainant is required to pay a license of $500 for distributing in Florence soft drinks manufactured in Birmingham.

The bill avers that the City of Florence is threatening and will, unless restrained, arrest complainant, his servants, agents, and employees, and will interfere with and break up the business of complainant, all of which will result in irreparable injury and damage to complainant.

The prayer of the bill was for a temporary and permanent injunction.

The evidence is without dispute, no testimony having been taken by respondent appellee.

The complainant (appellant) introduced Joe Foster as a witness, who is the operator of a bottling business in Huntsville. Witness testified that he distributes Double Cola which is bottled in his plant at Huntsville to the retail trade in Florence by truck. He does not maintain a warehouse in Florence. Sometimes the truck stays overnight in Florence in a garage back of a filling station about two blocks from the courthouse. His recollection is that he paid $200 license to the City of Florence.

The witness Snyder testified that he was the manager of the Coca-Cola business in Florence, which operates a bottling plant in Florence, and handles New Grape and Buffalo Rock. Witness testified that the Buffalo Rock people in Birmingham deliver Buffalo Rock to him in Florence, where it is stored in his bottling plant and distributed to the retail trade along with Coca-Cola and Soda Water. He pays the City of Florence a license of $200.

A. S. Johnson testified that he operates a bottling plant in Moulton, bottling Pepsi-Cola and general Soda Water flavors, serves the retail trade in Florence by truck and has no warehouse in Florence, but his truck occasionally stays there overnight. His license in Florence is $200.

Mr. Beard, the bottler of NeHi in Sheffield, Alabama, testified that he operates a NeHi Bottling Plant in that place, where NeHi, Play Park and Royal Crown Cola are bottled. He distributes his products in Florence by truck from the plant in Sheffield and pays the City of Florence $200 license.

Mr. C. W. Rochell testified that R. R. Rochell operates the Orange Crush 7-Up Bottling Company in Birmingham, where they have a bottling plant. That concern has warehouses at various points, including Sheffield, Decatur and Tuscumbia, and other places, some twenty-one in all. The bottled drinks are shipped to these warehouses by the Birmingham plant by truck, and in turn distributed in territory adjacent to the warehouses by truck. The trade in Florence is served from the warehouse in Sheffield three times a week; that the schedule of licenses charged by the various towns (set out in Exhibit "A" to the bill) represents the licenses charged by various towns for the privilege that Florence is seeking to collect a license of $500. A number of licenses issued by various Alabama towns were introduced in evidence. The witness testified that no city or town in the State of Alabama other than Florence had demanded as much as $500 as a license for the privilege of delivering soft drinks to retail trade.

A letter from S. B. Howard, City Clerk of Florence, offered in evidence, made demand for the license, and notified complainant that unless it was paid by the first of March, it was up to the City to start proceedings by criminal prosecution to collect.

Mr. J. B. Foster, the Auditor for R. R. Rochell, testified that it cost .44312 cents to produce a case of soft drinks at the plant in Birmingham. That cost of producing a case of soft drinks was broken down into its constituent elements in Exhibit "A" to Foster's testimony.

That witness testified that it cost .32734 cents to deliver a case of soft drinks in Florence, in addition to the plant production cost, making a total cost of .77046 cents per case to deliver a case of soft drinks in Florence. The product was sold at .80 a case. The complainant sold and delivered 531 cases in Florence from January 1, 1938 to September 30, 1938, and 680 cases in the same territory from June 15, 1937, to December 31, 1937. The distribution cost did not include any license paid in Florence, Alabama, because the license had not been paid; that the profit on the business done in Florence from January 1, 1938, to September 30, 1938, was $15.68, not counting any license for said city. If a $200 license for Florence was figured, Mr. Rochell would have lost about $184. The profit on the 680 cases sold in Florence from June 15, 1937, to December 31, 1937, was approximately $20, not counting any license paid the City of Florence.

The license schedule of the City of Florence for 1938 was introduced in evidence.

Several principles have been recognized and established under well considered authorities in this and other jurisdictions; (1) a tax on the method of conduct of business is discriminatory and void. Constitution of United States, Amend. art. 14, § 1, U.S.C.A.; Constitution of Alabama, 1901, Article 1, § 1; In re Matter of Dorsey, 7 Port. 293; City of Cullman v. Arndt, 125 Ala. 581, 28 So. 70; City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43; Alabama Consolidated Coal & Iron Co. v. Herzberg, 177 Ala. 248, 59 So. 305; Mefford v. City of Sheffield, 148 Ala. 539, 41 So. 970.

Pertinent to a decision of the question now presented for decision is the discussion in Bellingrath et al. v. Town of Georgiana, 23 Ala.App. 111, 121 So. 458, where...