Opinion
3 Div. 657.
August 6, 1953.
Appeal from the Circuit Court, Montgomery County, Jones, J.
M. Thomas Murphy, Mobile, for appellant.
An applicant for license to operate under the Act of 1951 must have customers who regularly or repeatedly make purchases of liquefied petroleum gases before such applicant be required to have located within the state a storage tank for such gases. The Act does not require one engaged only in selling and installing gas tanks, containers or systems, and not engaged in selling gases to have located such storage tank. Code 1940, Tit. 26, § 179(65); Arkwright Corp. v. U.S., D.C., 53 F. Supp. 359; Lyons v. Ottertail Power Co., 70 N.D. 681, 297 N.W. 691. Such requirement of such an applicant as appellant would be unreasonable, arbitrary and a denial of equal protection of law. Alabama Ind. Service Station Ass'n v. McDowell, 242 Ala. 424, 6 So.2d 502; Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388, 126 A.L.R. 729; McCoy v. York, 193 S.C. 390, 8 S.E.2d 905; Const. 1901 Secs. 35, 36. Sale and installation of liquefied petroleum gas tanks, containers or systems is not a business affected with a public interest. Const. 1901, supra; City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67; State v. Goldstein, 207 Ala. 569, 93 So. 308.
Si Garrett, Atty. Gen., and M. Roland Nachman, Jr., and Maury D. Smith, Asst. Attys. Gen., for appellees.
One seeking a permit to engage in the business of selling or installing liquefied petroleum gas tanks must comply with statutory prerequisites for the issuance of such permit. Act No. 275, General Acts 1951, Section 9, 1951 Cumulative Pocket Part, Title 26, §§ 179, 65. An appellant may not for the first time in the Supreme Court question the constitutional validity of a statute when that issue was not presented by the appellant in the court below. State Docks Comm. v. State, 227 Ala. 414, 150 So. 345; Coleman v. Mange, 238 Ala. 141, 189 So. 749; Cooper v. State, 226 Ala. 288, 147 So. 432. Act No. 275, supra, does not discriminate against appellant or unlawfully prohibit him from engaging in the business of installing liquefied petroleum gas tanks; the act does not unlawfully regulate his business or his property nor deprive him of any state or federal constitutional rights. Franklin v. State, 232 Ala. 637, 169 So. 295; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Olsen v. Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305; Lincoln Federal Labor Union v. Northwestern Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Day-Brite Lighting Co. v. Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469; Fordham Bus Corp. v. U.S., D.C., 41 F. Supp. 712.
This is an appeal from a judgment of the circuit court of Montgomery County denying the appellant's petition for mandamus to the Commissioners of the Alabama Liquefied Petroleum Gas Commission to require the Commission to issue a permit to do business.
The petition shows that appellant was engaged in "the business of selling and installing liquefied petroleum gas systems in the State of Alabama." He was therefore subject to the Provisions of the Alabama Liquefied Petroleum Gas Act, now codified in the supplement to the Code of 1940 as Title 26, § 179(57) et seq.
He applied to the Commission for a permit to engage in that business and the permit was denied because of the ruling of the Commission that he was required, under § 179(65) of the statute, to have located within the State of Alabama a minimum of 15,000 (water gallon capacity) storage for liquefied petroleum gases for each 1,000 customers or fraction thereof served by him, as one of the requisites for the issuance of the license to do business in the state.
This petition for mandamus presents the question of the propriety of the ruling of the Commission and takes the position that the business of appellant is not embraced within the requirements of the statute. Said subsection reads:
"The commission shall require that every person in the business of selling and distributing liquefied petroleum gases or in the business of selling or installing liquefied petroleum gas tanks, containers or systems have located within the state of Alabama a minimum of 15,000 (water gallon capacity) storage for liquefied petroleum gases for each one thousand (1000) customers or a fraction thereof serviced by such person. The commission shall have authority to examine the books and records of such person for the purpose of determining the number of customers serviced by such person. The commission shall further require such person to present evidence to the commission that he has a bona fide contract to procure for resale liquefied petroleum gases."
That provision is somewhat confusing but we think, as the lower court held, the appellant comes within the purview of the provision with reference to the storage requirement. His petition shows that he is engaged in the business of selling and installing liquefied petroleum gas systems in the state and the proviso specifically brings that type business within its terms. He argues that the act should be construed to the effect that only those who are in the business of actually supplying the gases to customers are governed by the storage requirement, but it seems manifest the act cannot be so interpreted. Those engaged in the business of selling or installing the tanks, containers or systems are as much within the terms of the act as those engaged in the selling and distribution of the gases.
Perhaps the legislature had in mind that the public was entitled to rely on certain minimum standards of service from those who supplied the installations as well as from those who supplied the gases; that the system would be worthless without the benefit of being supplied with the gas and without that minimum requirement customers might be left helpless with the systems without being supplied with gases for their installations. We merely mention this arguendo as sustaining the adopted construction, though, of course, the courts do not ordinarily inquire into the wisdom of legislative enactments.
The constitutionality of the act is suggested in brief and argument for appellant, but that question was not presented in the lower court, is not necessary for determination of this appeal, and must therefore be pretermitted in our consideration. Coleman v. Mange, 238 Ala. 141, 189 So. 749(4); State Docks Commission v. Cummings, 227 Ala. 414(11), 150 So. 345; Cooper v. State ex rel. Hawkins, 226 Ala. 288(8), 147 So. 432; State ex rel. Knox v. Dillard, 196 Ala. 539, 72 So. 56.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY, GOODWYN and MERRILL, JJ., concur.