Opinion
3 Div. 283.
January 12, 1939. Rehearing Denied January 31, 1939.
Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.
A. A. Carmichael, Atty. Gen., and Jack Crenshaw, of Montgomery, for appellants.
It is not within the power of parties by the form of their contracts to convert their business into interstate commerce protected by the commerce clause. Browning v. Waycross, 233 U.S. 16, 34 S.Ct. 578, 58 L.Ed. 828; Superior Oil Co. v. Mississippi, 280 U.S. 390, 50 S.Ct. 169, 74 L.Ed. 504; Banker Bros. v. Pennsylvania, 222 U.S. 210, 32 S.Ct. 38, 56 L.Ed. 171. A nondiscriminatory excise tax upon the sale or distribution of gasoline within the State is not such a burden on interstate commerce as to constitute a violation of the commerce clause of the Federal Constitution, U.S.C.A. Const. art. 1, § 8. Wiloil Corp. v. Pennsylvania, 294 U.S. 169, 55 S.Ct. 358, 79 L.Ed. 838; Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S.Ct. 631, 76 L.Ed. 1232, 84 A. L.R. 831; Wright v. Fulton County, 169 Ga. 354, 150 S.E. 262; Hinson v. Lott, 40 Ala. 123, Affirmed 8 Wall. 148, 19 L.Ed. 387; Postal Tel.-Cable Co. v. Richmond, 249 U.S. 252, 39 S.Ct. 265, 63 L.Ed. 590; Ficklen v. Taxing Dist., 145 U.S. 1, 12 S.Ct. 810, 36 L.Ed. 601; Postal Tel.-Cable Co. v. Adams, 155 U.S. 688, 15 S.Ct. 268, 360, 39 L.Ed. 311; Thurlow v. Massachusetts, 5 How. 504, 12 L.Ed. 256; American Steel Wire Co. v. Speed, 192 U.S. 500, 24 S.Ct. 365, 48 L.Ed. 538; Sonneborn Bros. v. Cureton, 262 U.S. 506, 43 S.Ct. 643, 67 L.Ed. 1095 (overruling Standard Oil Co. v. Graves, 249 U.S. 389, 39 S.Ct. 320, 63 L.Ed. 662; Askren v. Continental Oil Co., 252 U.S. 444, 40 S.Ct. 355, 64 L.Ed. 654; Bowman v. Continental Oil Co., 256 U.S. 642, 41 S.Ct. 606, 65 L.Ed. 1139; Texas Co. v. Brown, 258 U.S. 466, 42 S.Ct. 375, 66 L.Ed. 721; Pittsburgh S.C. Co. v. Bates, 156 U.S. 577, 15 S.Ct. 415, 39 L.Ed. 538; Brown v. Houston, 114 U.S. 622, 5 S.Ct. 1091, 29 L.Ed. 257. The constitutional prohibition against levying of imports does not apply to imports from other states. Woodruff v. Parham, 41 Ala. 334, Affirmed 8 Wall, 123, 129, 19 L.Ed. 382; American S. W. Co. v. Speed, supra. The interstate commerce clause (Const. U.S.C.A. Art. 1, § 8, cl. 3) prohibits the States only from regulating commerce, and it is only when the burden of State taxation becomes or approaches regulation that it is an unconstitutional burden. Hinson v. Lott, supra; Sonneborn Bros. v. Cureton, supra; Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 815; Western Live Stock Co. v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823, 115 A.L.R. 944; Wiloil Corp. v. Pennsylvania, supra; Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365, 117 A.L.R. 429; Gwin, White Prince v. Henneford, 305 U.S. 434, 59 S.Ct. 325, 83 L.Ed. ___.
Leon G. Brooks, of Brewton, for appellees.
The negotiation of sales of goods which are in other states for the purpose of introducing them into the State in which the negotiation is made is interstate commerce and cannot be taxed by the State in which the negotiation was made, nor can a State lay a tax upon interstate commerce in any form, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce and amounts to a regulation of it, and the power to regulate belongs to the congress. Const. U.S. Art. 1 § 8; 11 Am.Jur. p. 44, § 45, and citations; 12 C.J. p. 96, and citations; Bingaman v. Golden Eagle, etc., 297 U.S. 626, 56 S.Ct. 624, 80 L.Ed. 931; Helson v. Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683; Crum v. Prattville, 155 Ala. 154, 46 So. 750; City of Birmingham v. State, 233 Ala. 138, 170 So. 64; City of Roanoke v. Stewart Gro. Co., 235 Ala. 23, 176 So. 820. The several acts levying the excise taxes under which appellants seek to recover expressly provide that the tax is not applicable to any transaction or sale of gasoline in interstate commerce. Gen. Acts 1923, p. 36; Acts 1927, pp. 16, 326, Acts 1931, p. 859.
The trial court, as applicable to this case, held that the two corporations, the Sherrill Oil Company and the Sherrill Terminal Company, were, in effect, one and the same and which said holding does not seem to be questioned by either side.
The contracts between the company and the respective counties are set out as exhibits and it appears that the Sherrill Companies are both located at Pensacola, Florida, and they agreed to and did supply the Alabama counties here involved gasoline delivered to them in Alabama upon orders sent to Pensacola, either directly or through some agent of the Sherrill Companies. The gasoline, then in Pensacola, was placed in tanks, or other receptacles, and transported by trucks, owned or hired by the seller, and delivered as originally shipped to the storage tanks of the purchasing counties as per their orders. This was an interstate transaction and the appellee was not subject to the Alabama tax. City of Roanoke v. Stewart Grocery Co., 235 Ala. 23, 176 So. 820; City of Birmingham v. State ex rel. Carmichael, Atty. Gen., 233 Ala. 138, 170 So. 64; Crum v. Town of Prattville, 155 Ala. 154, 46 So. 750.
The cases cited and relied upon by appellants' counsel do not justify the claim that this was an intrastate transaction so as to permit the tax in question. For a discussion of this question and a demonstration of the fact the sale of the gasoline in question was an interstate transaction, we call attention to the very full note to the case of Bingaman v. Golden Eagle Western Lines, 80 L.Ed. 931 ( 297 U.S. 626, 56 S.Ct. 624).
It does appear that one of the counties procured several small supplies of gasoline through an agent of the respondents, not supplied from Pensacola, but from a storage tank at Century, Florida, but, if it be conceded that this was intrastate, which we do not hold, the trial court found that there was not sufficient evidence or data that would justify the fixation of the tax on these sales.
The decree of the Circuit Court is affirmed.
Affirmed.
THOMAS, BROWN and KNIGHT, JJ., concur.
Upon Rehearing.
Application for rehearing overruled.
All the Justices concur.