Jurisdictional Statement — Dunbar-Stanley Studios, Inc. v. City of Mobile

Supreme Court brief1969

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Text

CITY OF MOBILE,

: OF APPELLANT.

“

‘II. Jurisdiction .......... wekawe nana baalna ga een

III. Questions Presented .............2000. enekeon

IV. Statement. of the Case ...........cceeeee eens an

V. The Questions Are Substantial .+............ -

INDEX.

Opinion Below .............ee06. eosecccccenes

Decision on taxpayer’s rights under the federal

constitution cannot be avoided in state courts by

spurious ‘application of state rules .. am : setae 4

. Licenses used to discriminate against interstate

commerce are invalid under the commerce clause

. Interstate commerce cannot be licensed by cities

..The right of a state to fractionalize interstate .

activity and license essential components should

be finally determined by this court in this case.

(1) The decision of the Supreme Court of pm

‘bama on this question i is probably siete

SS eee OR PRO re ree

(2) The question should be finally determined ..

. A flat per diem admission privilege license can-

not be imposed on interstate activity ...... nine

. The overwhelming weight .of authorities hold

- that such privilege licenses as are here involved

are in violation of the commerce clause

Privilege licenses enforceable with criminal sane-

tions must satisfy substantive due process ..

. A copy of the opinion delivered upon the render-

ing of the judgment sought to be reviewed is.

attached hereto as Exhibit A

23 |

8 paces Bt ia

9, A copy of the order of the Supreme Court of Ala-

bama appealed from is attached hereto as: Ex-

hibit’ B ......... ES RN Nig thee 25

- Certificate of Service ete seeceeces erent ey

Appendix ......... f, , (eatncdenavincaguuseesanes 27

Exhibit Ap... oe. ccc c cece cece sec e ence esses 27

Exhibit. | ee 32

Cases Cited. .

Allied Stores v. ‘ices 358 U.S. 522, 525 gd .3, 16

‘Ashton v. Kentucky, 384 U. S. 195, 200 (1966) ....4,24

Barrett v. New York, 232 U.S. 14, 31 (1914) ...... *21:

Bates v. Little Rock, 361 U. S. 516, 526 (1960) ...... 4,24

Bethlehem Motors v. Flynt, 256 U. S. 421°(1921) -.. 20

Boyd v. Nebraska, 143 U. S. 135, 180 (1892) ...... 16

- Brown v. Southern. Cigarette ~Co., 269 Ala. 539, 114 3

So. 2d 387 (1959) Ps ee ae ee ee eee Te «14

_ Carter v. Texas, 177 U. S. 442, 447 (1900) icinas 16

Cooney ‘v. Mountain States Telephone, etc., Co., 294

a & I HN icc vn nace cacnkingucsca’ 19.

Covington & Lexington Turnpike v. Sandford, 164 aes

U.S. 578, 595 (1896) ...... POTEET CTT he eer 16

Crutcher v. Kentucky, 141 U.S. 47, 58 (1891) . .. 3, 21

Davis Vv, “Wechsler, 263 U. S. 22, 24 ‘ee 15 -

East Ohio Gas -Co. v. Tax Commission, 283 U. S. 465,

OD CMD Minion nde d cans ds cnctannnaqncenes oer 19

’ Family Discount Stamp Co. v. ‘State, 274 Ala. 322,

Se re ci kswca daccensuudvasaciaas 22

First Nat. Bank: v.. I 269 U. S. 341, "346

(199 LER T TE MCP OPES EE OTT Te ROTTS «ml |

Haden v. .Olan Mills, Inc., 273. Ala. 129, 135 So. 2d:

S88 (1961) ....%. CMGMA CA FAR weweee babe ee 10, 23

. : .

ae " a coe erm rnae re mmerT RIE) ater

iii

Sais v. Port of Mobile, 127 U. g, 640, 648

EN cc inciacelanGhindstantssevaussecsceeee *

| Lily. & Co. v. Sav-on-Drigs, 366 U. S. 276, 278, 279

(U9G1) eee eee eee nee eee cence tect ec ee eee eens 21

“Lovelt v. Griffin, 303 U. “§. 444, “450 ee 16

Memphis Steam ‘Laundry v. Stone, 342 U. S. 389, 392,

EE ahi cha en ans Asn dn esecendscnnccs 21

’ Moore v. City ‘of Fairhope, 275 Ala. 506, 156 So. 2d

i PRE Serer rr TT ere eT ETT Tee ee » @ - iz

Mitchell v. Clark, 110 U. S. 633, 645 (1884) ...... — ae -

Mullaney v. Anderson, 342°U. S. 415 (1952) ........ 20 }

N. A. A. C. P. v. Alabama, 377 U. S. 288, 293-302 4

eee eda chances iis Oe

N. A. A. C..P. v. Alahema, 357 U. S. 449, oe ;

eae LN aden gh acdsasas 16 j

Nippert v. Richmond, 327 U. S. 416, 423 (1946) ....3,21

Bs Olan Miils, Ine. v.City.. of Tallahassee, ... Fla. ...,

100 So. 2d 164 (1958), cert. den. 359 U.S. 924 ....4, 23 i

Pacific Telephone, ete., Co. v. Tax Comission, 2 297 ;

ee NE adic amesNachentchsnscaes 19 —

Portland Cement Co. v. Minn., 358 U. Ss. 450, 458,486 * |

(1959), Dissenting Opinion (ReeSHOANA ORR GS KtaRees 3, 19 :

Raley’ v. Ohio, 360 U. S. 423, 438 (1959) .....66...4,938 |

Robbins v. Taxing District, 120 U. S.. 489, 497 (1887). 21

Southern Ry.:Co. v. Curry, 239 “Ala. 263, 194 So. 523 29 = §

. Spector Motor Service v. O'Connor, 340 U.. S. 602, -

RIE areas Anne aan accciiame °° 9

Sperry: & Hutchinson v. City at Fairhope, 270 Ala. ee

- 582, 120 Me. BG THR CIDR) onc dicccccecasss eer 12

Sprout v. Sonth Bend, 277 U*S. 163, 171 (1928) ....3,19

Terre Haute & Indianapolis R. Co. v, Indiana,194

-U. S. 579, 589 (1904) ........ eee tn cca ees ary

* Toomer v. Witsell, 334 U. S, 385 (1948) ............ 20

Ward v. Love County, 253 U; S. 17, 22 (1920) ...... 3,-15

West Point Grocery Co, v. Opelika, 354 ee 8. 390

SE icy as cu abanetckapaden gunn s ss hiawescne 4,22

Winston v. Winston, 276 Ala. 303, 306, ia So. 2d

- 588 — : Lebeeeeneceapedwadesssedsesed aeeeses 12

eee Se a eats

134 ALL. R. 841 ..... EEE A, ON veneny ae

License Code of Mobile, Alabama ........ ik ache wee 4, 6

Rules 13 and 15 of U. S. Supreme Court ........... we 1

‘Title 7, Code of Alabama, Art.*12, Secs. 156-168 . : |

Title 13, Code of Alabama, Sec. 7 ............5..... = §

* 80.8.6, a ae PTT TITTLE TTT TTT pence 2

IN TES

SUPREME coum OF THE wnTED STATES,

i OCTOBER TERM, 1968.

__ enna

DUNBAR. STANLEY STUDIOS, iNC.,

, | * ‘a Corporation, —

Sess Appellant,

NersuS

CITY OF ‘MOBILE,

~ Appellee.

* STATEMENT AS TO JURISDICTION.

In compliance with Rules 13 and 15 of the, Rules ,of

the Supreme Court of the United States, appellant sub-

inits herewith this statement particularly disclosing the

basis: ipon which the Supreme Court has jurisdiction on

appeal to review the judgment of the Supreme Court of

Alabama entered in.this cause..

’ OPINION BELOW.

The opinion of the Supreme Court of Alshiame in this

case. has not yet been reported; either officially or un-

- Officially. A copy of the opinion, however, is attached

hereto as Appendix A,

IL.

JURISDICTION. ©

1. This was a suit filed in the circuit court for the

thirteenth , judicial circuit of Alabama (Mobile County)

for Declaratory Judgment authorized by Title 7, Code

of Ala:, Art. 12, Sec. 156-168, and an injunction, by Ap- °

pellant, a taxpayer, against the City of Mobile, to deter-

mine the validity of a recently enacted city photograph-

er’s license, and, pendente lite, restrain the enforcement

of the license, including its criminal provisions. When’

the City agreed to withhold enforcing the license pen-

dente lite, this aspect of the Bill of Complaint was aban-

doned. The City’s demurrer to the Bill was sustained.

After further amendment, the City ‘re-filed its demurrer,

which was sustained, and the Bill dismissed. From this

final decree, taxpayer a to the Supreme Court of

Alabama.

2. On the 13th day of June, 1968, the Supreme Court :

of Alabama affirmed the decree of the circuit court, and

it is this judgment which is sought to be reviewed on

this appeal, and for which a Notice of Appeal was filed

with the Clerk of the Supreme Court of Alabama on the

8th day of July, 1968. No application for rehearing was

filed in that Court, and its judgment. is now final.

_3. The statutory provision believed to confer on this

Court: jurisdiction of this appeal is |

28 U.S. C., see. 1257 (2).

4. Among the cases believed to sustain the jurisdiction |

of this Court in this case are:

we ee

Decision on Taxpayer’s Rights Under the Federal Con-

stitution Cannot Be Avoided in State Courts ad Spurious

Application of State Rules.

Terre Haute & Indianapolis R. Co. v. Indiana, 194

U.S. 579, 589 (1904) ;

Ward v. Love County, 253 U. S. 17, 22 (1920);

First Nat. Bank v. Anderson, 269 U. S. 341, 346 ;

(1926) ;

Allied Stores v. Bowers, 358 U. S. 522, 525 em:

Licenses Used to Discriminate Against ae oxen Com-

merce Are Invalid Under the Commerce Clause.

Portland Cement Co. v. Minnesota, 358 U. S. 450,

458 (1959);

_* Sprout Vv. sees eee 277 U. S. 163, 171 (1928).

Non Discriminatory Licenses on Interstate Commerce |

‘Are Invalid Under the Commerce Clause. .

Leloup v. Port of Mobile, 127 U. S. 640, 648 (1888)

Crutcher v. Kentucky, 141 U. S. 47, 58 (1891);

Spector Motor Service v. O’ Connor, 340 U. S. 602,

608, 609 (1951).

The Right of a State to Fractionalize Interstate Activ-

ity and License Essential Components Should Be Finally

Determined by This Court in This Case. -

(1) The Decision of the Cupreme Court of Alabama

on This Question.Is Probably Wrongfully Decided.

Nippert v. Richmond, 327 U. S. 416, 423 (1946).

. —4—

A Flat Per Diem Admission Privilege License Cannot -

Be Imposed on Interstate Activity. ©

West: Point Grocery Co. v. Opelika, 304 U. S. "390

(1957) ; |

Leloup v. Port of Mobile, 127 U. S. 640, 648 (1888).

The Overwhelming Weight of Authorities Hold That >

Such Privilege Licenses as Are Here Involved Are in

) Violation, of the Commerce Clause.

Olan Mills, Inc. v. City of a ere, . “ree

100 So. 2d 164 (1958), cert. den. 359 U. S. 924.

Privilege Licenses Enforceable With Criminal Sanctions

Must Satisfy Substantive Due Process.

Raley v. Ohio, 360 U. S. 423, 438 (1959) ;

. Ashton v. Kentucky, 384 U. S. 195, 200 (1966);

JS Bates v. Little Rock, 361 U. S. 516, 526 (1960).

_ 5. The City License Schedule sought to be imposed on

taxpayer’s activities was City Ordinance 31-083, Section

One, paragraph (d), which had been added to the re-

mainder of the Schedule on ange. ” 1965. The entire

schedule is:

An Ordinance Further Amending Section One of the Li- :

- cense Code of the City of Mobile, Alabama, Said Li-

cense Code Being Duly Adopted on December 21, 1954.

31-083 (oF 1965

Be It Ordained by the Board of Commissioners of the

City of Mobile, that the license Code of the City of Mobile

. for the year 1955 and each succeeding year as amended,

is hereby further amended by changing sub-section of

a ee P

ae, © ae,

Section One of the said License Code in the following

particulars: :

Section One: The paragraph numbered three hundred

and nine and entitled ‘‘Photographers’’ is hereby amended

to read as follows:

309. PHOTOGRAPHERS:

(a) A studio photographer is wali defined to be.

every person, firm or corporation maintaining a studio

‘ within the City for the purpese of taking therein, per-

sonally or through his. or its agents, partners, or em-

ployees, photographs of persons at such studio, and every

person, firm or corporation maintaining in any one estab-

lished plaee within the City for at least one year complete

equipment for the taking of photographs, including all

finishing: processes, whether inside or outside of such

place; and shall pay an annual license as follows: _

Doing less than $5,000 gross annual business .. 25.00

$ 5,000.00 and lessAhan | 50.00.

$10,000.00 and less than $15,000.00 ..:......... 75.00

$15,000.00 and less than $20,000.00 ............ 100.00

$20,000.00 and less than $25,000.00 -............ 125.00

$25,000.00 and less than $30,000.00 ............ 150.00

$30,000.00 and over ..............26. ivinnes 175:00

(b) In addition, photographers defined above who go

about. the City of Mobile, Alabama, taking photographs

and using an animal or device as a prop ....:...100.00

of pedestrians on the streets in the City of Mobile and

handing to said pedestrians a card or other paper stating

the terms of purchase and the.place where the photograph

may be obtained shall pay an annual‘license tax of 100.00

(d) Photographers, or persona, firms or corporations

taking photographs or offering photography service for

compensation, who do not qualify as ‘‘Studio Photogra-

phers’’ defined in (a) above, and who are neither Tran-.

uence .

eRe eee

—

sient nor Itinerant Photographers as defined in Sec. 27-28,

Mobile City Code (1955), each, per day .-....:...$50.00

(e) All other persons, firms or corporations taking

photographs for compensation within the City are ened

‘defined to be Transient Photographers.

Transient Photographers .:.............+.++- $500.00

_(f) No person shall engage in the business of transient

photographer without first having obtained a license to |

do so, which license ‘shall be granted upon payment of

the license tax as herein provided.

When one ‘or more persons are employed to take photo-

graphs for any such ‘transient photographer, a separate

license shall be obtained for each employee. ——

(g) Any person, firm or corporation violating any of

the provisions of this section shall be guilty of a misde-

meanor. Each day upon which such person, firm or cor-

poration shall violate this section shall be deemed a

separate offense.

(h) And in addition, film ‘developing, photographic

supplies and cameras: same’ as Merchants.

Section Two: This ordinance shall be effective on the

date of its adoption and shall remain- in -full force. and

effect and apply to each calendar year thereafter from

year to year.

- Section Three: Each and every iit of this ordi-

nance:is hereby declared to be an independent provision

and the holding of any provision hereof to be void and

invalid shall not affect any other provision hereof, and

it is hereby declared that the ‘other provisions of this

ordinance would have been enacted regardless of any

' provision which might have been held invalid.

Adopted: August 31, 1965. |

Richard L. Smith,

. City Clerk.

' are:

ion ha

Ii.

- QUESTIONS PRESENTED.

Taxpayer is engaged in the business of soliciting orders

for and‘ taking baby pictures throughout the country, out ’

of Charlotte, North Carolina, operating in and using the —

facilities of a nation-wide chain of moderate priced de-

_partment stores, J: C. Penney Company. The City of

Mobile, Alabama, sbught to impose a discriminatory per

diem privilege license tax on taxpayer for these activities,

with threats of criminal prosecution of taxpayer’s em-

ployees. The-taxpayer filed a suit for declaratory judg-

ment to’ protect its rights guaranteed under the Federal

Constitution against the license. The questions presented

(1) May the State court deprive taxpayer of pro-

tection for its constitutional rights by a spurious —

application of the rule of no standing to avoid con-

sidering the protection of taxpayer’s’ oe

rights? . \ ;

(2) Whether or not taxpayer’s activities in inter-

state commerce are subject to a discriminatory, per

diem admission privilege license tax as a condition

preeedent to the taxpayer’s engaging in such busi-

‘ness in the City of Mobile; |

(3) Whether or not the unbroken chain of inter-

state activities here involved may be fractionalized

into parts on which city licenses may be imposed.

. (4) Whether or not taxpayer is subject to a pro-

hibitive, vague and imprecise license with. criminal

sanctions for interstate activity, which license was

enacted* for and has been applied only to taxpayer.

‘STATEMENT OF THE CASE.

_ In 1963, Taxpayer came to.Mobile to engage in the

. business of taking-59¢ baby pictures on the premises of

_ J.\C. Penney Company, a medium-priced department store,

. under arrangement previously made between the parties.

The City demanded of taxpayer a transient photographer’s

. license’ for’ $500.00 as provided in the schedule quoted

’ above. Taxpayer then retained counsel and this $500.00

was refunded to taxpayer uhder an agreement that J. C.

Pennay ohtain oa. ‘‘studin phatagremhar’s’’ lransa. Thare-

upon, J. C. Penney took out a ‘‘studio photographer’s’’

license in 1963, and it has taken out this license yearly

thereafter, including the year here involved.

On Aug. 31, 1965, without prior notice to taxpayer or |

J. C. Penney, the City amended the photographer’s license

by adding what is now paragraph (d). Taxpayer was ©

informed that this was the result of activities of local

photographers who were unable or unwilling to meet the

competition -of taxpayer’s ‘prices for baby pictures, and

this paragraph (d) was drafted not to raise revenue for

* the City but for the purpose of excluding taxpayer from

doing business in Mobile.

After advertising a visit to Mobile for the period Oct.

12-16, 1965, but being without knowledge of the amended

thobeneantane's license, taxpayer’s employee-photographer

came to Mobile on Oct. 12, 1965. This employee was met

by a license officer of the City and presented a bill for this

license for the five days’ operations yet to be had. Actu-

ally, the bill was made out to ‘‘J. C. Penney Co.,’’ but it

was for taxpayer’s activities about to begin, and it was

given to taxpayer’s employee. Upon.failure to pay fhis

tax bill, taxpayer’s employee was threatened with crim-

inal prosecution unless this bill was paid. As a result of

this, this suit was brought.

was:

Thereupon, it was agreed between tenpayer and the city

that if the court held this license constitutionally applicable

to taxpayer’s activities, then taxpayer, not J. C. Penney,

-. would pay this tax to the city with interest, for every —

day’s operation by taxpayer from Oct. 12, 1965, to. the

- date of such decision. For this the city agreed not to ar-

rest or threaten to arrest*‘any employees of appellant oper-

ating in the city for@his paragraph (d) license pending

such court decision. That agreement is still in effect, and

taxpayer is still operating in Mobile at regular intervals.

Thereupon, taxpayer made no further effort to obtain an

injunction pendente lite against the city’ s ee of

_ this license against taxpayer. . :

The Bill of Complaint alleges that taxpayer was en-

gaged in the photography business in Charlotte, North

Carolina, specializing in photography of children. It had

no office, inventory, developing laboratory of agent in

Alabama. J. C. Penney Company was a department store

which entered into an agreement for taxpayer to engage

. in taxpayer’s photography work in the Penney stores, one 3

‘of which was in Mobile. The dates of visits by taxpayer’s -

photographers were fixed by the local Penney store man-

ager. Newspaper advertisements were run by Penney, but

its cost was deducted from the gross receipts. Taxpayer

prepared postal cards notifying its ¢ustomers of the visits, °

which were mailed out by Perniney.

Taxpayer’s photographers then came to Mobile, solicited

orders for pictures, took pictures, returned the exposed

film to Charlotte, with the customers’ orders for pictures,

and if the orders were accepted, the pictures were devel-

oped, printed and finished. The finished pictures were re-

turned to the Penney store, and they were paid for and

picked up by the customer. The payments were made to

the Penney employees only, and not to taxpayers’ photog-

raphers or agents.

nore Biro s ’

AE OR ma. IT I

Pott tad

Penney retained 12%% of the: receipts as its commis-

sion,.and after deducting. expenses, remitted the balance

to taxpayer. Penney-did no photography work in Mobile.

This was done by taxpayer on Penney’s premises, though

subject to Penney’s store rules as to hours, time, place,

_ ete., of taking the pictures.

This was diateiiik photograph, as distinguished from

“three-stage photography engaged in by Olan Mills as

, Shown in Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So.

2d 388 (1961).

The ‘jjusticiable controversy sleet in the Bill expressly.

* raises the federal questions, posing to‘the circuit court:

‘*(a) Whether or not plaintiff i is engaged in inter-

state commerce |

' * ¢ *¢ © @© * #*°

(e) Whether. or not. the application of such a license

tax to plaintiff violates the Commerce Clause of the

Federal Constitution?

(f) Whether or not the license tax or its ennlioation

to plaintiff violates the due process or equal protec-

tion clauses in the State or Federal Constitution?”’

After agreeing to withhold criminal proceedings against

taxpayer’s employees for this license for taxpayer’s prom-

ise to pay the city the license due, if ‘any, under this para-

graph (d), the city demurred to the Bill of Complaint on

the ground that since the tax bill attached as an Exhibit

to the Bill was addressed to J. C. Penney, therefore, it did.

not appear that the city claimed of taxpayer any tax un- .

der. this license notwithstanding allegations to the con-

traty in the Bill. This demurrer. was sustained. The Bill

was then amended. to allege: —

(1) J. C. Penney Company was not in the photog-

- raphy business and could not owe a license under

paragraph (d).

ihe

(2) J. C. Penney ‘Company was licensed as a

‘‘studio photographer’’ and could not owe a license

@ under this paragraph seed the express terms of the

license schedule. .

(3) Taxpayer was the real party in interest. under :

. the agreement with Penney.

(4) The city knew that taxpayer was the real party

in interest, as shown from correspondence attached

as exhibits to the Amendment.

(5) - Paragraph (d) was adopted by the City ‘to

cover taxpayer’s (not Penney’s) activities.

(6) The naming of Penney in the tax bill was for -

the purpose of avoiding judicial review of this license.

The re-filed demurrer to the amended Bill was sustained

and the suit was dismissed.

In the meanwhile, though taxpayer had been doing

business as noted above in. seven. other cities in Alabama

without any effort having been made by the state to

impose any state and county privilege license on tax-

payer’s operations, suddenly the State Department of

Revenue made assessments against taxpayer for such

license for the then current year, and for escaped licenses

for as far back as the State statutes would permit. The

result of that effort is found in the related case of Dunbar-

Stanley Studios v. Alabama, also on appeal to this Court.

The conclusion seems inescapable that this action on the

part of the State was instigated by the same parties and

with the same motive which is behind the action of the

city in this case, viz., to eliminate. competition from tax-

payer in Alabama.

This case was appealed to the Supreme Court of Ala-

bama where it was argued orally before the Division of

that Court consisting of Chief Justice Livingston, and

os + alin a hs? atten ads

2 AONE EE TOR Le BEE DOT ANI TORE es FOP

? Fy ,,

’ ve

ee ee

‘Justices Lawson, Goodwyn and Coleman.- However, con-

trary to the legislative direction contained in Title 13,

Code of Ala., Sec. 7, the case was submitted to Super-

numerary Cireuit J udge B. W. Simmons, who wrote the»

Opinion in this case, concurred in by the members of |

the other Division of that Court who had not heard the

oral arguments.

Judge Simmons held in the Opinion written by him that

since the city had billed J. C. Penney for this license as_ -

shown on the Exhibit to the Bill, therefore, taxpayer

could not raise the federal questions concerning .the con-

stitutionality of this license, regardless of. the’ allegations

- of the Amended Bill. This was in direct violation of the

well established rules of that Court that

(1) On demurrer, the allegations of the Bill. of

Complaint must be taken as true.

Winston v. Winston, 276 Ala. 303, 306, 161 So.

‘2d 588 (1964).

(2) In the absence of express agreement of the

. parties (which was not made in this case), a de-

murrer is not to be sustained to a Bill for Declaratory

Judgment concerning the validity of a city license.

Moore v. City of Fairhope, 275 Ala.. 506, 156 So.

2d 366 (1963); — |

Sperry & Hutchinson v. City of Fairhope, 270

_Ala. 582, 120 So. 2d 752 (S0a9).

THE QUESTIONS ARE™ SUBSTANTIAL.

At its place of business in Charlotte, North Carolina,

taxpayer originated a specialty in taking. 5 x 7 baby pic-

tures at .59¢ each. The specialty developed into a nation-

— =

wide business in conjunction with. the J. C. Penney -

Company department stores. Its business is interstate in

its nature and. scope. It is now and always has collected

and remitted local sales taxes where applicable. But the

City-of Mobile. is now standing*in the door to exclude —

taxpayer by requiring a license which had been applied

_ only to taxpayer who is engaged in interstate activity.

Furthermore, the license, $50.00 per day, is completely

-eonfiscatory. No one could do photography business in

Mobile at $50.00 per day. There isn’t that much photogra-

phy business in Mobile. Hence, judicial relief was essen-

tial against this discriminatory, confiscatory privilege

license on an interstate activity.

Though ‘the City omsaet to accept the tax from tax-

payer to avoid insistence for an injunction pendente lite,

when time came to respond to litigation, the city suddenly

decided that they never knew taxpayer, they knew only

J. C. Penney. The city has assiduously avoided making |

any defense of this license. Now Supernumerary Circuit

Judge Simmons refuses to consider the federal rights of

taxpayer sought to be protected here by ignoring. well

settled rules of procedure to dispose of the case on an

alleged -local ground by a spurious application of the

doctrine of ‘‘standing’’. .

Rightly or wrongly it is alleged in the Bill that it is -

taxpayer who has a controversy with the city. about the

application of paragraph (d) of the amended city license

to taxpayer’s activities. The city gave a bill to taxpayer

for this license, which was addressed to J. C. Penney

Company. This does not ahd cannot mean that therefore

the only controversy over the litense is with Penney. If

the allegations’ of the Bill are to be believed, taxpayer

still has a controversy with the city about this license.

It didn’t take the tax bill to create a controversy, and its

existence does not prevent taxpayer from obtaining a”

LI METRES PEO LE! POPES EN LEAD ARE, ORE rte 4a

GO TELE LP SE Er.

F 3

Poreweerrs

* ll lade a oe

declaratory judgment if there is a justiciable controversy

between taxpayer and city. The mere demand for a license

by the license commissioner creates a justiciable contro-

versy. ~,

Brown v. Southern Cigarette Co., 269 Ala. 539, 114 So.

2d 387 (1959). Hence, the addressee of the. tax bill was

completely irrelevant. |

So. tae

' Furthermore, it was taxpayer’s employee’s liberty

jeopardized here, and taxpayer’s money involved. ‘This is

certainly a controversy and a justiciable one.

‘ Supernumerary Circuit Judge Simmons HELD that

‘‘Without the presence of Penney Company as a party

to this suit, a judgment herein sustaining the validity

of the ordinance and its application to Penney. Com-

pany, would be without binding force on said com-

pany. 99

Since it is alleged in the Bill of iadind that Penney

is licensed by the City as a ‘‘studio photographer’’, and

since a ‘‘studio photographer’’ is exempt from the license

covered by paragraph (d), and since it is aHeged that

Penney does not take photographs nor offer photography ~

service, neither the city nor Supernumerary Circuit J udge

Simmons can “apply this license to Penney much less make.

it of ‘‘binding.force on said company,’’ and insofar as we

know, no one has attempted to. Hence, Penney is not only

not a necessary party in this suit; it is not even a proper

party.

All of this permitted the State court to follow the lead

of the city and not pass on the validity of this license,

even though taxpayer’s rights under the Federal Consti-

tution are violated.

—15—

Decision on Taxpayer’s Rights Under the Federal Con-

stitution Cannot Be Avoided in State Courts by Spurious |

Application of State Rules.

In Terre Haute & Indianapolis R. Co. v. salen, 194

U. S. 579, 589 (1904) where the state court construed a

state statute in a fashion held to be untenable but thereby

avoiding review of the federal constitutional questions

invoked, Justice Holmes said for the unanimous court:

‘‘We are ‘of opinion that we cannot decline jurisdic-

tion of a case which certainly never would have been

brought but for the passage of flagrantly unconstitu-

tional laws, because the state court put forward the

‘untenable construction more than the unconstitutional

statutes in its judgment. To. hold otherwise would

open an easy method of avoiding the jurisdiction of .

this court.’’

In Ward v. Love County, 253 U. S. 17, 22 (1920) this

was expanded with language particularly apt in the case

at bar:

‘“‘The right to the exemption was a Federal right,

and was specially set up and claimed as such in the

petition. Whether the right was denied, or not given

due recognition, by the supreme court, is a question

as to which the claimants were entitled to invoke our

judgment, and this they have done in the appropriate

way. It therefore is within our province to inquire

not. only whether the right was denied in express -

terms, but also whether it was denied in substance

and effect, as by putting forward non-Federal grounds

of decision that were without any faiz,or substantial .

support.”’

In Davis v. Wechsler, 263. U. 5, 22, 24 (1923) 1 the state

court held that a defense of wrong venue was waived

under circumstances which did not seem appropriate to

SS od «

Sey thas

‘® ORE RAS NCTE

—16—

this Court, Justice Holmes. added to the ideas stated

above:

‘‘Whatever -springes the state may set for those who

are endeavoring to assert rights that the state con-

fers, the assertion of Federal rights, when plainly and

reasonably made, is not to be defeated under the name

‘ of local practice.’’

This was summed up in First Nat. Bank v. Anderson,

269 Uz S. 341, 346 (1926):

«Whether: a pleading sets up a sufficient right of

action or defense, grounded on the Constitution or’

a law of the United States, is necessarily a question

of Federal law; and where a case coming from a

state court presents that question, this court must

‘determine for itself the sufficiency of the allegations —

displaying the right or defense, and is not concluded

by the view taken of them by the state court:”’

In Allied Stores v. Bowers, 358 U. S. 522, 525 (1959),

this Court held that the question presented here (viz.,

standing to test the constitutionality of a state tax)

was for determination by this Court, and this Court was

: not bound by the state court’s holding of no standing

by the taxpayer to raise the question.

Accord:

Mitchell v. Clark, 110 U. S. 633, 645 (1884);

Boyd v. Nebraska, 143 U. S. 135, 180. (1892);

Covington & Lexington Turnpike v. Sandford, 164

U. S. 578, 595 (1896) ;

Carter v. Texas, 177 U. S. 442, 447 (1900);

Lovell v. Griffin, 303 U. S. 444, 450 (1938).

A previous effort by the Supreme Court ‘of Alabama to

forestall protection of constitutional rights was thwarted

by this Court in: : Bata."

‘N. A. A. C. P. v. Alabama, 357 U. S. 449, 454-458

(1958) ; ‘.

—_

N. A. A.C. P. v. Alabama, 377 U. S. 288, 293-302

(1964). :

Since it is plainly alleged in the Amended Bill of

Complaint: .

(1) That baneaien’ 8 employee”: s liberty was threat-

ened under this license

(2) That taxpayer’s money is jeopardized by this

license

_ (3) That the license was imposed to bar taxpayer

‘for engaging in interstate activity. in Mobile

taxpayer has standing to raise the question whether or

not the. license infringes taxpayer’s constitutional rights.

The decision by the state court that taxpayer cannot

raise questions of the constitutionality of this ordinance

is not binding,on this Court, and this Court should there-

fore consider whether or not this license can withstand

attack under the Federal Constitution.

20 ,

Licenses Used to Discriminate Against Interstate Com-

merce Are Invalid Under the Commerce Clause.

‘The Amended Bill of Complaint alleges that paragraph

(d) of the photographer’s license in question is aimed

at and discriminates against interstate activity consist-

ing of solicitation of orders and subsequent delivery of

‘goods at the end of an uninterrupted movement in inter-

state commerce. The original city photogarpher’s license

applied to:

(1) studio photographers at an established place

(2) photographers using animals as a prop.

(3) photographers of pedestrians on the street.

(4) all other photographers, defined to be transient

photographers.

This license was amended with a catch-all provision,

paragraph (d), to cover all other photographers who

were not | ,

(a) studio photographers, or

(b) transient or itinerant photographers.

This license was fixed at $50.00 per day, which made it

prohibitory.. It was further alleged that this paragraph.

(d) had been applied.only to the activities of taxpayer

which were interstate activities. Hence, the question

arises: can a ‘city impose discriminatory licenses on inter-

state activity? :

Regardless of the right of states or cities to impose

non-discriminatory taxes or licenses on interstate activity,

as in Portland Cement Co. v. Minnesota, 358 U. S. 450

' (1959), it was recognized, even in that case, 358 U.S. 458:

“Tt has long been established doctrine that the Com-

merce Clause. gives exclusive power to the Congress

to reguiate interstate commerce, and its failure to act

on the subject in the area of taxation nevertheless.

requires that interstate commerce shall be free from

any direct restrictions or impositions by the States.

Gibbons v. Ogden, 9 Wheat. 1. In keeping therewith

a State ‘cannot impose taxes upon persons passing

through the state, or coming into it merely for a tem-

porary purpose’ such as itinerant drummers. Rob-

bins v. Shelby County Taxing Dist., 120 U. S. 489,

' 493, 494. Moreover, it is beyond dispute that a State

may not lay a tax on the ‘privilege’ of engaging in

interstate commerce, Spector Motor Service, Inc. v.

O’Connor, 340 U. S: 602. Nor may a State-impose a

tax which discriminates against interstate commerce

either by providing a direct commercial advantage

ee, omy

to local business, Memphis Steam Laundry Cleaners,

Ine. v. Stone, 342 U. S. 339; Nippert v. Richmond, 327

‘U.S. 416, or by subjecting interstate commerce to the

burden of ‘multiple taxation’, Michigan-Wisconsin .

Mfg. Co. v. Storen, 304 U. S. 307. Such impositions

have been stricken because the States, under the Com- -

merce Clause are not allowed ‘one single-tax worth

of direct interference with the free flow of,commerce.’

Freeman v. Hewitt, 329 U. S. 249, 256.”’

In Sprout v. South Bend, 277 U. S. 163, 171 (1938), ei

. tice Brandeis stated:

“But in order that on fee or tax shall be valid, it

must appear that it is imposed solely on account of

the intrastate business; that the amount exacted" is

not increased because of the interstate business done;

that one engaged exclusively in interstate commerce

would not be subject to the imposition; and that the

person taxed could discontinue the intrastate busi-

ness without. withdrawing also from the interstate

business. ’’

This has been quoted approvingly many times.

East Ohio Gas Co. v. Tax Commission, 283 U. S. 465,

470 (1931);

Cooney v. Mountain States Telephone, etc., Oo. 294.

U. S. 384, 393 (1935) ;

Pacific Telephone, etc., Co. v. Tax Commission, 297

‘U.S. 403, 414 Te