
    Miller v. The State.
    
      Violating Revenue Law.
    
    (Decided April 8th, 1913.
    Rehearing denied April 23, 1913.
    62 South. 307.)
    
      Commerce; Interstate; License. — Under the evidence in thin case, the corporation was engaged in interstate business, and its delivery agent, the appellant in this case was not subject to the provisions of subdivision 58, Section 2361, Code 1907.
    Appeal from Barbour Circuit Court.
    Heard before Hon. A. H. Alston.
    G. A. Miller ivas convicted of violating the revenue law and he appeals.
    Reversed and remanded.
    
      Winn & Winn, for appellant.
    The defendant was engaged in interstate business, and was not subject. to the provisions of subdivision 58, section 2361, Code 1907, and bence, tbe demurrers to the indictment should have been sustained. — Earns v. The State, 50 Ala. 127; Davis v. The State, 52 Ala. 357. That it is interstate commerce see Dozier v. The State, 154 Ala. 83; s. c. 218 U. S. 965; Stratford v. City of Montgomery, 110 Ala. 619; Moog v. The State, 145 Ala. 75; Crutcher v. The State, 141 U. S. 147.
    B. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.
    The indictment was in Code form and was, therefore, sufficient. That the contract was accepted in this state or in another state, did not change the interstate shipment.— Ware v. Hamilton-Brown Shoe Co., 92 Ala. 145; Cul-verson v. America/n Trust & Banking Co., 107 Ala. 457. Nor does the state contend that the shipment was not entirely interstate. The shipper may use two agencies instead of one. — Bobbins v. Taxing District, 120 U. S'. 489; Caldwell v. N. Carolina, 187 U. S. 622, 632; Rear-ick v. Pa., 203 U. S. 507; Dozier v. Ala., 218 U. S. 124. But it is the method of delivering the shipment that the state seeks to tax. This it has a right to do. The tax is not directed against the shipment, or against the business of selling, but is directed to the method of delivering or displaying the article sold. It is not beyond the inherent power of a state to tax any particular trade, calling or business. — Armour Packing Co. v. Lacy, 200 U. S. 226; Cook v. Marshall Comity, 196 U. S. 261; Connally v. United Sewer Pipe Co., 184 U. S. 540; Quartlebaum v. State, 79 Ala. 1.
   THOMAS, J.

The defendant was charged with a violation of those provisions of subdivision 58 of section 2361 of the Code, requiring each person, firm, or corporation selling or delivering sewing machines, either in person or through agents, to pay an annual license tax to the state of $25 for each county in which they sell or deliver such articles, and an additional tax of $10 for each wagon or team used in delivering or dis: playing the same — excepting from the application of the subdivision merchants selling such enumerated articles at their regularly established places of business.

The evidence without conflict established the following facts, to-Avit: The defendant, as the agent, called a “deliveryman,” of the Rotary Sewing Machine Company, a foreign corporation, Avith an office a.t Chattanooga, Tenn., and its factory at Cleveland, Ohio, delivered with a Avagon and team in Barbour county, Ala., Avithin the time covered by the indictment, sewing machines to persons who had previously given orders for their purchase and future delivery to traveling salesmen, known as “soliciting agents,” of the said Rotary SeAving Machine Company. The company has no office or place of business in Alabama, but transacts business in this state by sending out said soliciting agents, who secure orders for the company for the machines, which orders bind the company to- deliver to the purchaser the machine so ordered. These orders, Avhen so procured by the soliciting agent, are then turned over to another agent of the company, known as a “deliveryman,” of Avhich the defendant was one, and are by them or him Avired in, separately, to the company’s office at Chattanooga, and are filled by it from its factory at Cleveland by shipping the machine or machines from there to the shipping point nearest the purchaser — each being marked Avitli the name of the respective purchaser. The bill or bills of lading are sent by the company to the deliveryman, and upon these he obtains the machines from the common carrier and makes delivery to the purchaser, whose name is marked on the machine, using a wagon or team in the doing of the same. The defendant, as said, was such a deliveryman of the company, and the only act he did was to wire in the separate orders of the company after they had been procured by the soliciting agent, and deliver the machines to the respective purchaser, or purchasers, after they had arrived at the nearest shipping point, employing in so doing a wagon and team hired from a local liveryman. At the conclusion of the evidence the court gave the general affirmative charge for the state, and refused a like charge for the defendant.

The statute cited, under which the conviction was had, in order to uphold its validity, must be construed as not intended to apply to acts or transactions of interstate commerce, the poAver to regulate Avhich belongs exclusively to Congress. It folloAvs that, in any prosecution under it, if the undisputed evidence sIioavs that the acts done by the defendant were done in carrying on only interstate commerce, then he is entitled to an acquittal. The Supreme Court of the United States had a similar state of facts under consideration in the case of Dozier v. State of Alabama, 218 U. S. 124, 30 Sup. Ct. 649, 54 L. Ed. 965, 28 L. R. A. (N. S.) 264, and held that they constituted interstate commerce, reversing on writ of error the decision of our Supreme Court in the case of Dozier v. State, 154 Ala. 83, 46 South. 9, 129 Am. St. Rep. 51. In the case of Clarke v. State, 4 Ala. App. 202, 59 South. 236, avc had under consideration the same section and subdivision of the Code Ave are now considering, and a state of facts almost on all fours with those here, and Ave held that they showed a transaction of interstate commerce. We are not convinced that Ave should depart from this ruling; but on the authorities cited, where the question is fully discussed, we bold that the lower court erred in giving tbe general charge for the state, and in refusing it to the defendant.

The judgment of conviction is set aside and reversed, and an order will be here entered discharging the defendant.

Beversed and rendered.  