
    Mangeldorf v. The State.
    
      Violating Oyster Law.
    
    Decided April 24, 1913.
    Rehearing denied June 6, 1913.
    62 South. 373.)
    . 1. Commerce; Interstate; Burden Upon. — Section 9, Acts 1911, p.. 466, is not invalid as an interference with interstate commerce; property brought from without the state when it reaches its destination and comes to rest, ceases to be subject to interstate commerce, and' is subject to taxation even though disposed of in original packages..
    
      2. Fish and Oysters; License. — Under sections 9 and 41, Acts 1911, p. 458, the non-payment of the tax fixed by section 9 is a misdemeanor, as no other provision is made for its enforcement.
    Appeal from Mobile City Court.
    Heard before Hon. O. J. Semmes.
    J. C. Mangeldorf ivas convicted of violating the act for the preservation of oysters, and be appeals.
    Affirmed.
    Webb & Me Alpine, for appellant.
    Tbe failure to pay the license is not a criminal act. — Parker v. State, 59 South. 319; State v. Street, 117 Ala. 203. When a statute creates an offense, it is strictly construed so as not to bring within its terms anything not clearly intended by the legislature. Under the facts in this case the oysters were articles of interstate commerce. — 81 Atl. 511.
    It. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, and Francis J. Inge, for appellee.
    The oysters had been delivered in the shop or store of appellant and had come to rest, and were hence, not subject to interstate commerce. — 192 U. S. 500; 208 U. S. 472; 209 U. S'. 2Í1; 214 U. S. 218. Section 9 of the Act fixes the tax, and section 41 makes it a misdemeanor to fail to pay. — Parker v. State, 59 South. 319; Appelgarth v. State, 42 Atl. 941; Foot & Go. v. Stanley, 82 Atl. 380.
   WALKER, P. J.

The charge made against the appellant in this case is based upon an alleged violation of the statute which was before us for consideration in the case of State v. Parker, 5 Ala. App. 231, 59 South. 741. That case presented the question of the constitutional validity of the requirement made by section 9 of thé statute (Acts 1911, p. 458) that three cents per barrel be paid “on all oysters caught and taken from the public reefs and private bedding grounds, for packing, canning, shipping or for sale;” while the present case presents the question of the constitutionality of that feature of the same section of the statute which makes the charge imposed by it applicable to “all oysters canned, packed, shipped, or sold in and from this state,” and also the questions as to whether the conduct of the defendant which is shown by the agreed statement of facts constituted a violation of the last-mentioned provision, and as to whether the statute makes a violation of that provision of it a criminal offense.

The question of the constitutionality of the particular feature of the provision contained in section 9 which now is in question may be disposed of by referring to what was said in the opinion rendered in the Parker Gase. The validity of that feature of the statute has not been questioned upon any additional ground. Indeed, there has been no such insistence in argument in this case upon the mere suggestion of the invalidity of the feature of the statute upon which this prosecution rests as to call for a discussion of that suggestion.

There is nothing in the terms of the provision in question to indicate that the Legislature in enacting it undertook to impose any charge or burden upon any act or transaction which is one of interstate commerce. The mere fact that the “oysters canned, packed, shipped, or sold in and from this state,” upon which it is alleged that the exaction required by the statute had not been paid, had come into this state from beyond its borders, did not exempt them from the operation of the- taxing and police powers of the state after they had ceased to be the subjects of interstate commerce by reaching their destination in this state and were there at rest, to be “canned, packed, shipped, or sold” when and as it suited the purposes of their owner. That some of the oysters upon which the charge provided for by the statute was not paid were by the defendant, in the course of his business as an oyster dealer in Mobile, supplied to his customers in the original cans in which they had been shipped to him from Mississippi, did not affect the question of their liability to that charge. — American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 Sup. Ct. 365, 48 L. Ed. 538; Rearick v. Pennsylvania, 203 U. S. 507, 513, 27 Sup. Ct. 159, 51 L. Ed. 295.

The effect of the particular provision of section 9 of the statute which now is in question is to require the charge which it prescribes to be paid on all oysters canned, packed, or shipped for commercial purposes by the person, firm, or corporation first marketing the same. We are of opinion that this requirement is one which is within the purview of the provision contained in section 41 of the statute: “That any person, firm or corporation violating any of the provisions of this act not otherwise specially provided for shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than $10.00 nor more than $100.00 for each offense.” It may be true, as is contended in the argument of the counsel for the appellant, that it is not to be imputed to the Legislature that it intended, by the enactment of this section of the statute, to make it a criminal offense to violate any provision whatsoever contained in the statute, for example, as suggested in the argument, the one requiring the commission to meet on the first Monday in each month. It is apparent that the persons, firms,' or corporations referred to in section 41 of the act are those for whose conduct in dealings relating to the sea-foods industry of the state it was a main purpose of the statute to prescribe requirements and restrictions. One of the principal regulations to which such persons, firms, or corporations are made subject is the one which exacts the payment of the charge bow under consideration. We think that the intention of the Legislature to make a violation of that provision a misdemeanor is plainly manifested by the language used in section 41 of the statute. The imposition of the penalty is the only method provided by the statute for securing a compliance with the requirement in question.

Affirmed.  