Stratford v. City Council of Montgomery

• Decision Date: 31 July 1895
• Citation: 110 Ala. 619,20 So. 127
• Parties: STRATFORD v. CITY COUNCIL OF MONTGOMERY.
• Court: Alabama Supreme Court

20 So. 127

110 Ala. 619

STRATFORD v. CITY COUNCIL OF MONTGOMERY.

Supreme Court of Alabama

July 31, 1895

Appeal from city court of Montgomery; T. M. Arrington, Judge.

Prosecution by the city council of Montgomery against J. C. Stratford Jr., for violation of a city ordinance. Defendant was convicted, and appeals. Reversed.

The appellant, J. C. Stratford, Jr., was arrested on a warrant issued upon an affidavit, charging him with the offense of carrying on a business without first having obtained a license as required by law, and in violation of section 411 of the City Code of Montgomery. Upon the trial before the recorder of the city of Montgomery, the defendant was found guilty, and fined $50. Thereupon he took an appeal to the city court of Montgomery. In that court the city council of Montgomery filed a complaint, which is in words and figures as follows: "This case is brought to this court on appeal from the judgment of B. C. Tarver, as recorder of the city of Montgomery and ex officio a justice of the peace in and for the county of Montgomery, and state of Alabama against the defendant. The said judgment rendered on the 3d day of January for $50, besides $3 for the costs of suit, for carrying on the business of a local commercial broker in the city of Montgomery without first having taken out and paid for a license therefor, contrary to section 411 of the City Code, which provides, among other things, that any person who shall engage in any business, trade, or profession, or keep any establishment or do any business or act for which a license is required, without having first obtained such a license, shall, on conviction, be fined not less than ten or more than one hundred dollars. Plaintiff avers that subsection 60 of section 410 of said City Code requires local commercial brokers, before engaging in business, to pay a license of $50; and plaintiff avers and charges that the said defendant, on or about the 2d day of January, 1894, within the corporate limits of the city of Montgomery, carried on the business of local commercial broker without first having obtained and paid for a license for that purpose, contrary to the provisions of said section 411 of the City Code, and the ordinance of the city of Montgomery, and this suit is brought and prosecuted by the city council of Montgomery, to recover the penalty of one hundred dollars and the costs in said recorder's court, for violation of section 411 of said City Code." Issue was joined on the plea of not guilty and upon this issue the cause was tried upon the following agreed statement of facts: "The defendant is a resident citizen of this state and of this city, and keeps an office or place of business in the city for exhibiting samples of certain goods sold by samples (sales of other goods being made by reference to them by known goods or kinds) and carrying on his correspondence. He solicits and receives orders from wholesale and retail merchants of this state for the purchase of goods from several nonresident wholesale dealers in grain and provisions who live and carry on their business in other states. He represents his principals under special agreement made with them separately, before the orders for purchases are solicited or received, to the substantial effect 'that he shall be the only agent or seller of their goods in this city; that each order solicited, received, or obtained by him for the purchase of any of the goods in his line shall be forwarded to his principal, subject to the approval or rejection of such principal, and, if accepted, and a sale actually consummated the agent shall be entitled to a commission to be paid by the seller.' At stated intervals of time, accounts between himself and his different principals are settled. He does not accept orders from buyers to be filled by any person but one of his principals, nor does he sell for any one else. The goods, at the time the contracts for sale are made, are the property of his nonresident principals, and are situated in other states. In some instances the principals of this defendant consigned to him car loads of flour or other provisions in barrels and in the original packages, before purchasers had been found, and in these instances the defendant sold the same in unbroken packages on their arrival, as the property of the shipper or consignee, and billed them to the purchaser as coming from the shipper. The said goods consigned as last above stated were either sold from the cars in which they were brought to Montgomery, or were removed therefrom and placed in warehouses, from which they were sold and delivered by defendant, although in making out his bills against the purchaser he made them not in his own name, but in the name of his principal or consignor whom he is representing in the city of Montgomery. The employment under said contract does not apply or refer to one or more sales, but is of a permanent or continuous nature. It is agreed that the defendant carries on the business in the city of Montgomery, as indicated by this statement of facts, for the purpose of making a profit or livelihood. It was also proven upon the trial of this cause that the city council of Montgomery was a municipal corporation organized under an act of the legislature of Alabama, and the city council of Montgomery, properly authorized in the premises by said charter, had, previous to the arrest of the defendant, passed an ordinance requiring a license of $50 per annum from 'local commercial brokers,' and also passed an ordinance punishing any person for carrying on the business of 'local commercial broker' in the city of Montgomery without having taken out and paid for the license required therefor, and providing that upon conviction such person should be fined not less than ten nor more than one hundred dollars. This being all the evidence in the case, the city council of Montgomery asked the court in writing to charge the jury 'that, if they believed the evidence they must find the defendant guilty.' The court gave the charge as asked, and to the giving of the same the defendant excepted. The defendant then asked the court in writing to charge the jury 'that, if they believed the evidence they must find the defendant not guilty.' The court refused to give the charge, and to such refusal the defendant excepted. Thereupon a verdict was rendered for the plaintiff, and judgment entered accordingly." The defendant prosecutes the present appeal from...