Stratford v. City Council of Montgomery
110 Ala. 619
Ala.
1895
Check Treatment
BRICKELL, C. J.

The first question presented by the record, is whether the defendant was a “local commercial broker,” within the meaning of the ordinance under which he was convicted. A “broker” is defined as “an agent employed to make bargains and contracts between other persons in matters of trade, commerce or navigation for a compensation commonly called brokerage.” — Story on Agency, -(8th ed.)', § 28.- Every broker is, in a sense, an agent, but every agent is not a broker. -There are, however, so many incidents common to both relations, that it is difficult to define the precise line of demarkation. We would say the idea of exclusiveness enters into an employment of agency, while with respect to brokers, there is a holding out of one’s self, generally, for employments in matters of “trade, commerce and navigation.’ ’ It is the business or calling of acting or of offering to act, generally, as distinguished from isolated employments not induced by or resulting from the general business or calliug. • In determining whether particular facts constitute one an agent, strictly so-called, or a broker, the circumstance that the employments are many or few-, cannot be made the controlling test. Capacity, means and other incidents may operate as factors in reducing or increasing the number of clients and volume of business, without, in the least, changing the nature of the business.

Applying these principles, we are of opinion that on the facts of this case, the defendant was “a commercial broker.” He was a negotiator in the sale of goods. This general business, he pursued for a livelihood. He acted in the names of his customers, sold by sample without having actual custody of goods, and charged a commission or brokerage. His office, where his samples were kept and displayed and correspondence conducted, was in the city of Montgomery. He acted for “several persons,” and there is nothing in the record to repel the inference drawn from the character of his business that he held himself out as open to employments from others. The fact that he made special arrangements in advance, with those who.employed him, does not tend to show that -those arrangements were exclusive, nor does the *626additional fact that he was to be the sole representative of his employers in the city of Montgomery, have that tendency. It is stated, it is true, that he did not sell or accept orders to sell for any persons except those represented by him ; but this is but another form of stating that he acted only as he was authorized to act. There was no agreement not to increase the number of his customers — no exclusion of his right to act for any who should employ him.

2. The second inquiry is one of more difficulty. ■ It is shown- that the defendant has acted only for non-resident principals in negotiating sales of merchandise which, at the time, was situated in other States. It is insisted that the ordinance of the city cannot be applied to such transactions without an invasion of the commerce clause of the constitution of the United States. We need not discuss the distinction between the exercise by the State of the police and the taxing power, for it is clear that the purpose of the ordinance was to raise revenue.—Leloup v. Port of Mobile, 127 U. S. 640; s. c. 76 Ala. 401. Nor do we consider it necessary to review at length the decisions of the Supreme Court of the United States relative to the power of the State to tax occupations. They will be found collated in the following cases: Robbins v. Shelby Co. Tax. Dist., 120 U. S. 489; Ficklen v. Shelby Co. Tax. Dist., 145 U. S. 1; City of Titusville v. Brennan, 153 U. S. 289.

In Brown v. Maryland, 12 Wheat. 419, 444, in which a State law, requiring an importer to take out a license and pay $50, before he should be permitted to sell a package of imported goods, was declared unconstitutional, Marshall, C. J., said: “But if it should be proved that a duty on the article itself would be repugnant to the constitution, it is still argued, that this is not a tax upon the article, but upon the person. The State, it is said, may tax occupations, and this is nothing more. It is impossible to conceal from ourselves that this is varying the form without varying the substance. It is treating a prohibition which is general, as if it were confined to a particular mode of doing the fordidden thing. All must see that a tax on the sale of an article which is imported only for sale, is a tax on the article itself. * * * So a tax on the occupation of an importer, is, in like manner, a tax on importation. It must add to *627the price of the article and be paid by the consumer or by the importer himself, in like manner as a direct duty on the article itself would be made.”

In Welton v. Missouri, 91 U. S. 275, 278, the same principle was announced : “Where the business or occupation consists in a sale of goods, the license tax required for its pursuit is, in effect, a tax upon the goods themselves.” In Robbins’ Case, the proposition . is elaborated and reaffirmed, and in Lelo up’s Case, on writ of error from this court, it is again announced as follows : “Of course, the exaction of a license tax as a condition of doing any particular business, is a tax on the occupation; and a tax on the occupation of doing a business, is surely a tax on the business.” It will be seen that under ail these decisions, the principle is broadly stated that the State has no power to tax the agencies utilized in making disposition of the property, when it could not tax-the property itself. There has been no departure from this doctrine, and it is applicable as well to brokers as to any other agency connected, with interstate commerce, unless the rule is changed by Ficklen’s Case, supra.

In Brennan v. City of Titusville, 153 U. S. 289, Ficklen’s Case is itself reviewed and it is said that it was “no departure from the rule of decision so firmly established by the prior cases. At least, no departure was intended, though as shown by the division'of the court and the dissenting opinion of Justice HaKEaN, the case was near the boundary line of the State’s power.” Butin FicMen’s Case, the question was different from that now presented. Brokers had obtained a license to engage in business generally; they paid for the license and gave bond, pui-suant to the statute, to pay over a certain proportion of their commissions. The bill was filed to enjoin an action on the bonds on the ground that the licensees had only been engaged in business connected with interstate commerce. It was held, in effect, that as the brokers had accepted the privilege of doing a general business — local and otherwise — the mere fact that their transactions were subsequently confined to interstate business was not a valid defense to a suit on the bonds. Itissaidin the opinion: 1;What position they would have occupied if they had not undertaken to do a general commission business and had taken out no license therefor, but had simply transacted business for non-resident *628principals, is an entirely different question which does not arise on this record.” But that is this case. While, as we have shown, the business of the defendant was general, so as to constitute him a broker, it by no means follows that it required he should also tak.e local business. He might, as he did, confine himself to interstate business and still be a “broker,” without becoming liable to the tax.

We said, commenting on Robbins’ Case, in State v. Agee, 83 Ala. 110, that whatever might be, our views as to the soundness of that decision, “it involves a judicial construction by the Supreme Court of the United States of a clause of the Federal constitution, and it is, therefore, binding on this court.” See also Ex parte Murray, 93 Ala 78; Ware v. Hamilton Brown Shoe Co., 92 Ala. 145. We are of opinion that the principle determined in Robbins’ Case, and those reaffirming it, applies to the present case; and it results that the judgment of conviction must be reversed, and as no conviction could be had on the agreed facts, a judgment will be here rendered discharging the defendant.

Reversed and rendered.