Friedlander Bros. v. Deal
118 So. 508
Ala.
1928
Check Treatment

*1 sage of this act shall be and same are here- by repealed, parts and all state laws and conflict with this act repealed.” hereby given Whatever name the tax provided by on Schedule a tax based mentioned, the sale of the oils therein includ- ing gasoline. Sale, If no there is no there is tax, and, whether the tax be on the upon occupation, on the by fixed is based commodities, the sale of the we do repeal escaped think the of same can be repealing theory the technical that the clause applies only sales, to a tax to such on provided by a tax as on Schedule 74 the busi- selling ness of oil. language repealing clause of the presented. covers here the ease tax The confessedly of Schedule 74 of the act have shown it is an excise. We sales,, based on and therefore meets fea- repealing ture of the clause. Therefore 74, being must an follow Schedule excise sales, squarely tax based comes on language repealing clause. Í920, p. 117) solely (Acts The act of 1920 inspection police regulation. law and a repealing clause could not be limited inspection give to such therefore law. To * * * ** * words “other excise taxes gasoline” any operation on the sale of what- ever, they apply must be held to to Schedule 74, as Schedule the act of 1919 and only inspection ones law 1920 were gasoline. then force as to conformity To to the contention hold ignore of the state would be to the above- quoted significant language repealing presumed.the Legis clause. It is not to be language lature has used mean whatever. thinkWe that section 13 of the act of 1923 expressly repeals Schedule gasoline 1919 as to hold. so rendering judgment The trial court erred in plaintiff, judgment for the and of the cir- reversed, cuit court is and one is here ren- dered in favor of the defendant. Reversed rendered. All the Justices concur. (118 508) BROS., Inc., FRIEDLANDER v. DEAL et al. (4 363.) Div.

Supreme July 14, Court Alabama. Rehearing Denied Oct. *2 SOMERVILLE, and, in- J. The decisive deed, only question presented by this appeal foreign corpo- mez’cantile ration, organized to do a mer- and chartered chandising business, buy, pur- and authorized to lease, real hold estate suitable to the poses may lawfully eoi-poration, lease Dothan, appellant. Tompkins, for

Lee & for its intended use in its future business in Alabama, Alabama storehouse in complying first with the im- laws of Alabama posing conditions, requirements, certain corporations foreign restrictions “before engaging transacting any in or ' state.” this Code J§ 7209-7220. Re- spondents’ merely leasing contention is that storehouse, stated, under the conditions engaging in or business within meaning inhibitory of our statutes. statutory phrase “engaging in or transacting any business” does not differ in meaning substance or in from the constitu phrase any tional 1875, “do business.” Const. 14, 4; art. § meaning phrase to “do state,” applicable foreign ness corporations, clearly simply stated by Stone, J., in often cited case of Beard A. Plib. U. & 60: works, “There must be a some of the functions, or an of some of eoi-poration created, bring railroad, bank, case within that clause. A company, incorporation, insurance performing functions Cotton, Doster, & O. and O. C. Mullins S. Alabama, required keep would be limits Dothan, appellees. Lewis, all place business, one known ‘at least and an agent agents’ in the authorized this state. That doing business; would be or a. it, pur- part view their directly within the which falls Most of them were in F. & reviewed G. corporate powers.” (Italics ours.) Baccus, Co. v. of the Beard Sullivan In Farrior v. N. E. Mort. Sec. *3 fully approved, recognition Cases important of the 275, 278, 200, holding a 7 in loan of So. that merely distinction a inci between doing business, money was was said: it preliminary step doing dental and or the engaging transaction, the “In in a com- such corpo transaction the of real business of the plainant was the exercise of its chief cor- in ration. by very porate function, imported as its name.” Buggy Co., In Holman v. Durham 200 Ala. 557, 914, Co., 76 So. said: we Sullivan Sullivan Timber 103 Ala. v. (25 543), 379, 941, 371, A. it 15 944 L. R. So. perfectly “Our decisions made it clear have per Brickell, C. was said J.: validly that the mere collection of .created and, fortiori, by a their securement note debts— or “In v. American Freehold Land Christian though general within the cor- otherwise— Mortgage Co., 427], [7 So. it was 89 Ala. 198 porate powers, is not the transaction of cor- held, prosecution of the ac the or defense porate meaning business within the in- of our doing state, is tion of tution. the courts the not in of hibitory [citing laws the Sullivan Beard and meaning of the the Consti within and other cases].”. authorities, according And to all the statutory construing similar constitutional or principle The of is these in cases accord objects provisions, having purposes, foreign or in view the like overwhelming authority weight with the of many a' are acts of business there 71, 49; elsewhere. 12 R. L.C. § J. 14a C. may coming corporation do, 1279, 1280, Corpus provision. §§ 3986-3989. of statutory The text or constitutions!! within the Juris, 3986, Corp. 661, is states: 2 The real Mor. test §§ Publishing applied Co. in Beard v. A.&U. “Under the rule that the statutes under con- corporation engaged supra; 60] is the [71 Ala. sideration have no to acts done any part of or in the transaction merely within a state which are to incidental thereof, act. organized trans it and to was created prosecution ordinary business, the of its has it be, the business’ within it it ‘does If been held such its that where not transactions do meaning be not— If it of Constitution. part ordinary business, constitute a of a done, doing, within has is not if the is or act it doing, transacting, is not general powers not is and its franchises—it carrying on, engaging a, or in within re constitutional which the the business to acquisition, holding, disposal of or quirement is directed.” personal property situated;” or real there (section “by 3986) doing of acts therein Wheelock, In Int. Seed Oil Co. v. merely preliminary which are to the transac- 518, 370, 517, 367, it was said: 124 Ala. corporation tion of the business for which the organized.” corporate is every act done within “Not powers the statute. down meant the business constitute will pertinent An excellent and of statement restating rule laid after [And. rule, principle, and .of its (103 found in Gen- Co. v. Timber in Sullivan Sullivan 543) Baptists eral R. Berkey, A. and Conference Free L. v. 15 25 Ala. So. 60) (71 supra] 466, 470, Pub. Co. Cal. Beard v. U. & A. In to 105 P. 413: easy may always applying not that test it purposes plaintiff, “The of the as in defined distinguish in exer- done between acts incorporation, ‘religious, of articles are corporate done and those cise merely functions missionary, educational and charitable.’ As corporate powers.” within purposes to granted incidental these it is a variety powers, e., power prose- i. to Case, Reaffirming it the rule the Beard law, power cute and defend suits at to use Mills, Rolling in was held v. Anniston State seal, power a common to take and hold corporation 921, that a objects corporation any for the of .said real “organized purpose ‘buying, manu- for the personal property, power sell to and iron, .of convey facturing any and and articles which estate the interests of the corporation veyed. require or manufacture which iron to be sold and con- merchandise powers All of these selling are used, buying to be exer- man- and and ” purposes cised in subordination to the main as articles,’ ‘‘doing ufactured not purchase prop- first declared. The and sale of although corporation, ness” a it leased its as erty by ends for corporation such a is not one of the plant, it the rent lent some of collected and organized, merely it but is a taxes, interest, paid and held directors’ at accomplish means to it to enable those ends. meetings did other acts and con- Property acquired only objects is to be for ’the mainly protection for the cern intended corporation, only and to sold when property, all within the state of Alabama. corporation require the interests of the power property by corpora- given sale. The reason was that sell none of these a purely tion of this character is as things incidental “constituted the business prosecution purposes the the other for its main any part the business which it was powers as, charter, enumerated created, and mere were incidents example, power prosecute and defend property.” preservation of its suits at law.” principle foregoing cases was recognized Talley- So, Wulfing Ala. Western R. Armstrong Cork 396, 404, 405, Bates 50 So. Mo. W. 157 S. it was held that 2á8 do, organized to or business was corporation tion real estate

lease to a preparatory purely act. incidental made not void because a local for before the office company quite conclusion clear had We are authority authorizing com business” to “do that both on plainant’s statutes Crossley, securing also, See, 305Mo. the lease of Missouri. 206, Meir v. note, Dothan, building store in order that A. L. R. W. 264 S. ordinary might engage in thereafter merchandising, general of to several chartered business of was not fact that We do overlook the “engaging relate in or busi reviewed the Alabama cases above meaning meaning ven- in this state” of our ness business within (Code, 7209-7220); and, that, laws, particular discus- as for §§ under in the ue *4 appli- objection, the that the was valid difference in contract of lease sion here there is no binding. principle. Nor overlook and cation do we of the 174, Langston Phillips, apprehend Ala. 206 the of v. case trial We that the learned validity 523, by contrary under the So. which involved court was induced the ato decision 89 our by regulatory language Code, of a sale a statutes “All of section of 7216 the corporate corporation any foreign stock to a citizen by of its contracts made in this state ,of corporation is not within complied Alabama. That such a sale with which has not first general provisions sections, of as a preceding the inhibition rule seems such statutes the of the two shall, contract, the over- option party to have been settled at the of the other to the authority. whelming weight A. L. wholly of See 35 be voidand of section ap- note, 7220, in that case contracts, engagements, R. 625. We note that “And all or un parently upon pleadings parties case dertakings agreements the with, the had submitted b)y, or or to such agreed of corporation, statement .obtaining and made without such opinion: facts, whereon, quote permit secretary from to the [from the of state under sec 7219], tions 7218 and shall be null and void.” * ** being agreed upon, the else “All “contracts, agree- undertakings But .or the the contract issue to be was decided question ments” therein stood in made must to be under- the sale the stock was referred for in the of course, Alabama, Delaware, where, of or in connection all other and domi- state no effect.” law of this had provisions preceding, nate of the statutes and harmony language construed in with their Finding in Ala made framed, that contract the was design. They general “engag- and all inhibit bama, was, held issue under the as transacting any business,” or within void. Whether the came to be the case language quoted contracts, means undertak- principle' Case, supra, and of the Beard ings agreements in or the (cid:127)exercise the cor- following it, de of termined cannot be the later eases porate corporate ordinary busi- function —the ,of report case, we from the the part not to incidental acts not a ness—and presume plaintiff corporation did that the expressly recog- it. This distinction was bring im not munity. itself within the Talley-Bates nized in Ala. Western R. Co. v. appears, aught selling the For 396, 402, 341, 342, Ala. 162 50 S.o. part may a business stock have been the it was said: where incorporated, and it which it was single doing preliminary to, of a act of if “The and in an incident have been function, corporate the exercise aof ordinary preparation for, of its prohibited.” may be, But, re however business. quirements ease do not demand of this recog expressly was The same supra. Langston Phillips, distinction v. criticism Mfg. language, nized, in Muller same Estes, 206 Cable Piano Co. v. The case of 229, 231, Bank, Nat. Ala. 57 v. First 176 obviously Co. 95, 372, point, not in So. Ala. because was a ness, 89 762; Durham Buggy in Holman v. So. piano involved there of the clearly 914; more and ordinary Ala. 76 So. corporation’s 200 part of the Baccus, Oil v. 207 & Cotton Co. suggested still in F. G. that the not even and was it otherwise. 75, 77, All of these cases were 92 So. 4. So, Ala. also, Coburn fact was 7218, 7219, long and after sections lending decided Coke, incorporated in the Code of were foreign corporation 7220 and money ato citizen a they manifestly ordinary inconsistent with presumptively of Alabama was any change theory make nothing that those sections company, to the con- business trary appearing. inhibited. in the character indeed, upon And, face transaction, been trial court erred sus- not have It results that the it could a of such princi- taining to amended bill of other the demurrer preparatory to some incident discharging complaint, also in and tem- pal business. injunction. porary Bank, The decree will therefore Mfg. First National Muller In rendered, reversed, and one will be here be overruling injunction said that a it was reinstating the demurrer prohibited from “is according original to tenor state, single if done function”— n effect. in the rendered, Reversed, and remanded. course, meaning, of the func- the exercise BOULDIN, 290, 3), GARDNER, JJ., (Acts 1907, p. THOMAS, March, Then in appears in concur.' enacted now section 7220 was Code, quoted- In hereinabove Rehearing. On Supreme in the Court rendered the decision Talley-Bates FOSTER, pro- Case, noting any supra, of the Code J. Section 7216 departure vides that: from the law the construction of placed legislative theretofore acts. by any in this for- “All contracts made ju- question to This case not relate did eign corporation not first which has court, risdiction or venue but the va- preceding two sec- Case, lidity tions, shall, party of a option contract. In Muller 1912 the of the other at contract; wholly supra, decided, relating validity void.” to the contract, adhering distinc- the same provides Section 7220 that: tion. the decision this court in the contracts, undertakings engagements, “All Case, supra, rendered, Holman in which agreements corporation, with, by, permit, again the distinction considered and af- shall be pbtaining made without null and void.” firmed, Sullivan, referring Beard Cases, supra, other and also relates to the va- These clauses in the were also included lidity of a-contract. *5 relative sections of of 1907. This the Code In this court in rendered the decision provision in in section 7216 was also the Code Case, supra. the Baceus It is insisted that 1896, having February 13, been enacted Sullivan, Wheelock, Cases, and Baceus (Acts February and amended supra, relate to a construction of the law rel- 1895, p. 1024), provides: which section jurisdiction venue, court, ative application they and have no here. While re- state, all made in after “That contracts this * * * jurisdiction late to the July, any corporation or venue of the court 1893, by * * * provisions foreign corporations, right over has with to sue act, wholly depends upon this void.” shall in Alabama doing any (unless business in this state What now qualified section 7220 of the Code of statute). has Island under the Jefferson (Acts 1923 was first enacted March Longyear Co., Salt 1907, p. 290, 3), appeared in and first a Code 98 So. 119. The transaction business in pro- as section The Code juris- give Alabama sufficient to courts quoted vision foreign from corporations 7220 relates*to the section diction over held permit, effect of a depend failure to upon obtain that case to the same consider- quoted from inquiry section relates to the ations which determine the as to comply they of a section effect failure whether vio- (now pro- 7214, relating relating tax lation of the franchise Constitution ,by pp. 181-183), foreign corporations. vided Act of them as such 7215, relating provi- with section The to the failure to Code with the same required sions, adopted file the statement to be filed after this court had ren- maintaining dered its decisions tax commission. So that the deci- construc- upon placed tion sions of this court have law as to since 1895 been ren- adoption provision in this state. The dered with the of what is now sec- Code with- change respect view, adoption out in that is an 7216 in tion and since 1907 with the placed upon the construction theretofore of the law as contained now acts. both sections view. question Leg- now is not 1899 this court rendered decision in Wheelock, prohibiting islature supra, enact a law Oil Co. v. do- referred ing powers opinion case, to in former in this reaffirm corporation except stipulat- on the conditions the construction of the law in the Sulli ed, whether, Cases, supra, history applying van view Beard the dis enactments, light and in tinction between an deci- business in the court, sions of funet-ions, Leg- was done .of and an act in placed islature. corporate powers. We think Again, the construction the exercise of firmly fixed, the enactments is the same distinction is and that drawn in the ought now Rolling Mills, ease of disturbed court deci- State Anniston su p sion, ra, eign corporation even if we were against to do a suit for inclined so. the license fee a for rehearing therefore business in Ala overruled and denied. bama.