Bigbee Fertilizer Co. v. Smith, 65 So. 37

65 So. 37 | Ala. | 1914

ANDERSON, C. J. —

The act amending section 2411 of the Code’of 1907 (Sp. Sess. 1909, page 165) provides for the refunding of “license money” under the conditions therein set out. The state’s counsel concede that the appellant paid the fund in question under subdivision 26 of section 2361, when it was not liable for same for the reason that it had paid the license tax due by it under subdivision 41 of said section 2361.—Chinnabee Cotton Mills v. State, 166 Ala. 119, 52 South. 390.

Counsel does contend, however, that the act in question provides only for refunding a license tax and not a privilege tax, and that the tax sought to be recovered was made a privilege tax under the terms of subdivision 26. Whether there is or is not a substantial distinction between a license tax and privilege tax we need not decide, though this court has intimated that there is.—City of Montgomery v. Kelly, 142 Ala. 552, 38 South. 67, 70 L. R. A. 209, 110 Am. St. Rep. 43. On the other hand, it was stated in the case of Spira v. State, 146 Ala. 177, 41 South. 465, in discussing this statute, that the Legislature did not have in mind any marked distinction between a license tax and a privelege tax, but seems to have used the words interchangeably. We think the act in question contemplates the refunding of the fund in question whether it be designated as a privilege tax or a license tax. The act covers all money paid for a license whether it was paid strictly as a license tax or as a privilege tax. It refunds “license money” and under the terms of subdivision 26, the sum there required is for a license, the issuance of which is contemplated and required.

Whether or not the auditor can question the certificate of the probate judge, in this proceeding, we need not determine, as we think the certificates issued by him are sufficient under the terms of the act. It may be true that the said certificates do not specifically set up any inadvertence, neglect, or personal error upon the part of the probate judge, but it does appear therefrom that- this money was paid in and received when there was no legal obligation upon the appellant to pay it, or legal authority vested in the probate judge to collect or receive it. If the probate judge collected and received it without the sanction of law, then he committed such an error as is provided for by the act in question, and the point made against the certificates is hypercritical. The purpose of this'statute has been well expressed by this court, in considering a kindred one, in the case of White v. Smith, 117 Ala. 232, 23 South. 525, wherein the court said, speaking through Brickell, C. J.: “The statute is intended to provide the taxpayer, who by mistake has paid taxes he ought not to have paid, a speedy, inexpensive remedy to reclaim the money from the state and county treasury into which it has passed. It is the successor of proceeding statutes having a common object — -the promotion of justice and equity between the state and county and the taxpayer. If by mistake, whether of law or of fact, the state or county has, through the medium of taxation, received money of the taxpayer to which it was not entitled, ex equo et bona, it is but natural right and justice that the .mistake should be corrected and the money refunded.”

The circuit court erred in sustaining the demurrers to the appellant’s petition, and the judgment of said court is reversed and the cause is remanded.

Reversed and remanded.

McClellan, Somerville, and de G-raffenried, JJ., concur.