Alabama Consolidated Coal & Iron Co. v. Herzberg

59 So. 305, 177 Ala. 248, 1912 Ala. LEXIS 292

• Court: Supreme Court of Alabama
• Decided: June 25, 1912
• Status: Published

Opinion

ANDERSON, J.

Section 33a of the act of 1911, p. 181, reads as follows: “Any person, firm, or corporation who conducts a commissary or store at which their employees trade on checks, orders or other device shall pay an annual license tax as follows: When such person, firm or corporation employs less than fifty persons, thirty dollars; when more than fifty and less than one hundred are employed, fifty dollars, when more than one hundred persons are employed, one hundred dollars.”

It will be observed that this section does not impose a license tax upon persons, firms, or corporations conducting stores or commissaries, but only upon those wherein the employees trade upon checks, orders, or other devices. The tax is not, therefore, imposed upon the business, or upon all engaged in a similar business, but is based solely upon the manner in which a party may conduct the business; and the foregoing section is repugnant to the state and federal Constitutions, under the authority of City of Montgomery v. Kelly, 142 Ala. 552, 38 South. 67, 70 L. R. A. 209, 110, Am. St. Rep. 43. This case was approvingly cited and explained in tie ease of Mefford v. City of Sheffield, 148 Ala. 543, 41 South. 970.

Since the section in question must fall, it is needless to answer the other questions certified, as they go to the construction of same.

Simpson and Mayfield, JJ., concur in the opinion. Sayre, J., concurs in the conclusion. McClellan and Somerville, JJ., dissent.