The opinion
On Rehearing.
FOSTER, Justice.
The question of the effect of a transaction, somewhat similar to that here involved, upon interstate commerce has been discussed also in the case of McLeod v. J. E. Dillworth Co., 322 U.S. 327 , 64 S.Ct. 1023 , 88 L.Ed. 1304 . In that, case it was held that, under the circumstances there existing, the tax was a burden upon interstate commerce for that the taxpayer was shipping goods by interstate commerce from Tennessee into the state of. Arkansas. It had its offices in Tennessee where the sale was made and consummated by'delivery f. o. b. in Memphis, Tennessee, in interstate commerce for shipment to the purchaser in Arkansas. The sale . was therefore completed, so far as the seller was concerned, in the state of Tennessee when the delivery was made f. o. b. to the interstate carrier. The delivery in- Arkansas, was not necessary to a completion of the transact tion.
The controlling distinction between the Dillworth case and McGoldrick v. Berwind-White, 309 U.S. 33 , 60 S.Ct. 388 , 84 L.Ed. 565 , is in the fact that the delivery in New York in the latter case was necessary to a completion of 'the sale, whereas in the Dillworth case the sale was completed when the goods were placed f. o. b. with the interstate carrier in Memphis. The general rule of law applicable to sales is that “where the agreement is to seli goods ‘f. o. b.’ (free on board) a designated place, such place will ordinarily be regarded as the place of delivery.” 55 Corpus Juris 332. This is also in accordance with the Uniform Sales Law, Title. 57, section *511 25, Rule 5, Code of 1940. Capehart v. Furman Farm Imp. Co., 103 Ala. 671 , 16 So. 627 ; Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446 , 14 So. 672 ; Hatcher v. Ferguson, 33 Idaho 639 , 198 P. 680 ; 16 A.L.R. 597 .
So that instead of the Dillworth case being authority to the contrary, it does not in any respect conflict with what we have said in the instant case. It does not overrule the Berwind-White case and does not conflict with it. The result is controlled, as we have said, by the fact that the petitioner was obligated by the contract to deliver the goods into the possession of his customer and in his tanks in the City of Andalusia, and the sale was not complete until that occurred. Such delivery was a feature of the sale,- not .of the transportation. Whereas, in the Dillworth case the sale was. completed by the seller when he delivered the goods f. o. b. Memphis to the carrier for shipment- into Arkansas.
We have given- attention to the case of Nippert v. City of Richmond, 327 U.S. 416 , 66 S.Ct. 586 , 90 L.Ed. 760 , but we did not treat it specifically because the same principles declared in it had been analyzed and fully stated and distinguished in the Berwind-White case, supra, all to the same effect.
On this application, as on the original- submission, petitioner argued that the ordinance in question is discriminatory against petitioner who transported his property over the state line and as an out of state distributory in favor of a local distributor of the same kind of product, and contended and is still contending that the Nippert case, supra, and other d-ummers’ license fee cases, support that contention and that they should be here applied. We stated in the opinion, supra, that we did not consider the license tax discriminatory, meaning inherently so, and observed that there is no allegation in the complaint showing the local situation or that the tax was aimed at the out of state distributors. We think the question whether it is discriminatory in favor of local distributors whose business is completely local, is not presented by this record. There is nothing in the complaint on which to base that contention.
The question here is solely upon the sufficiency of the complaint tested by the demurrer to it. The complaint alleges that the license tax is a burden upon interstate commerce, without explanatory detail in respect to the claim of discrimination made in brief. We think it could not be so interpreted as to mean that the ordinance is more than inherently subject to attack on that ground. We treated it upon that basis in our opinion, supra, and we think that treatment is proper. We repeat therefore ■that the question of whether it is discriminatory in favor of local distributors is not here presented, and we are not called upon to determine what is the meaning of the decisions of the Supreme Court of the United States as they affect that question.
This is emphasized by the further fact that the complaint does not show that local distributors, whose business is done wholly within the city, if there are such who are competitors with petitioner, are not subject to an ordinance license tax comparable to that here in question.
We cannot assume that the tax here in question i-s discriminatory when there are are no facts alleged upon which such a conclusion may be reached.
There was no such contention made in the case of Sanford v. City of Clanton, supra. While the argument was made here, the emphasis was placed on the contention which was fully considered in the Berwind-White case, supra.
Our attention has been called to the case of City of Winchester v. Lohrey Packing Co., 237 S.W.2d 868 , by the Kentucky Court of Appeals, not officially reported. The ordinance in that case laid a license tax for “soliciting for sale, selling or delivering”. The taxpayer had a solicitor who lived in Kentucky and who obtained and transmitted the orders to the taxpayer out of state. We observe that this is controlled by the drummers’ tax cases, Nippert case and others. That case found the distinction between the Berwind-White and Nippert cases to be that in the former the coal was transported to New York before the tax *512 was applied, and in the latter the tax was for soliciting before the transportation began.
But in our opinion that is not the controlling distinction which is efficacious. The delivery of the coal in New York was completing the transportation and not after it had ended. We think the Nippert case, supra, which ■ is a drummers’ license tax, was based more emphatically upon the alleged discrimination there created in favor of local merchants who were not subject to the tax, but who were competitors of out of state merchants vyho were subject to it. But if the important distinction between the two lines of cases is as the Kentucky opinion in the Lohrey case seems to indicate, the instant case would fall on the side of Berwind-White rather than Nippert.
The application for rehearing is overruled.
LIVINGSTON, C. J., and BE OWN, LAWSON, SIMPSON and STAKELY, JJ., concur.