This is an appeal by the Director of Revenue of Jefferson County from a decree of the circuit court, in equity, granting the relief prayed for in a taxpayer's bill of complaint. The taxpayer prayed for a declaration that he was not liable to pay a license tax imposed on merchandise brokers by Title 51, § 493, Code 1940, which, as amended, recites as follows:
The averments of the bill of complaint are almost identical with the averments of the bill set out in Leibold v. Brown, 260 Ala. 354, 71 So.2d 7. As we understand the record, the proof supports the allegations of the bill.
The taxpayer here is a merchandise broker within the meaning of the term as used in the statute, as we undertook to show in State v. McKenney, 268 Ala. 165, 105 So.2d 439.
As such broker, taxpayer "represents" seven manufacturers who make picture frames, lamps, mirrors, and bed springs. All seven manufacturers are nonresidents of Alabama. Taxpayer solicits orders from retailers in Alabama. The order is sent by taxpayer to the out-of-state manufacturer who accepts or rejects the order. If the order is accepted, the manufacturer ships directly to the retailer. The retailer sends payment to the manufacturer, and the manufacturer sends a commission to taxpayer. Taxpayer has no authority to bind the manufacturer.
The bill of complaint recites that appellant has issued to taxpayer a notice demanding
Taxpayer insists that he is not liable for the tax because he was, during the years in question, engaged exclusively in interstate commerce and, therefore, under the Leibold case, supra, he is not subject to the tax. The appellant insists that taxpayer is liable for the tax under the holding in State v. Stein, 240 Ala. 324, 199 So. 13.
In the Leibold opinion, many cases are cited and extensive consideration given to the insistence of appellee in that case that the tax levied on merchandise brokers is not discriminatory, is levied on all merchandise brokers who do business within the state, and is not invalid as applied to those who do business in the state and by chance represent exclusively nonresident principals.
This court, as we understand the opinion, held as follows:
In the instant case, taxpayer testified that he had been engaged in his present business "About eleven or twelve years"; that it had been "seven or eight years" since he had represented one Alabama principal; that he had never represented any other Alabama principal; and:
Appellant insists that taxpayer showed that his business was not limited to out-of-state accounts when he testified as follows:
Taxpayer's testimony that he holds himself out as representing out-of-state accounts, or what he might do if some attractive offer should be made, is, under general rules of evidence, of doubtful competency. Taking it at face value, however, it does not persuade us that taxpayer is to be regarded as being "engaged in the brokerage
In the Leibold case, this court said: "It may be that in the Stein case the court reached the correct result in view of the fact that Stein was said to be engaged in the brokerage business * * * and apparently not confined to out-of-state principals, although it is said he represented only certain definite principals outside of the state." 260 Ala. 360, 71 So.2d 11. The Stein case was decided on an agreed statement of facts which is stated in pertinent part as follows:
The instant case was not tried on such a statement of facts. The evidence here is that taxpayer has not represented an Alabama principal within the last seven years, and it does not appear likely that any principal in taxpayer's line of business exists in Alabama. If taxpayer's tax liability is to be determined by what he actually did during the three-year tax period and the situation that actually existed then, we do not think it can reasonably be found from this record that taxpayer was "apparently not confined to out-of-state principals" during the three-year period.
Appellant states in brief:
Although the instant taxpayer is not an employee of the nonresident manufacturer and is not an agent who is not a broker, taxpayer is nevertheless an agent of the manufacturer. Every broker is, in a sense, an agent, but every agent is not a broker. Stratford v. City Council of Montgomery, supra.
No useful purpose would be served by repeating the arguments which appear in the authorities cited and considered in the Leibold case. Whatever we might decide if the question were before us for the first time, we are of the view that we should adhere to precedents long since established.
The decree appealed from is in line with those precedents and is due to be affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.