5 So. 2d 466 | Ala. | 1941
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *217 This is a bill in equity filed by the State of Alabama, seeking an injunction for the restraint of defendant from engaging in the business in this State of selling tangible personal property at retail within the meaning of the Sales Tax Act of Alabama (approved February 8, 1939, General Acts 1939, page 16), until he pays the assessment made against him under it. That Act was incorporated in the Code of 1940, Title 51, c. 20, Article 10. The particular feature of it which authorizes a restraining suit is section 777 of that title, which was section XXVIII of the Act of 1939.
The Code of 1940 was not in effect when this suit was begun, but there is no difference between the Act and Code in this *219 respect. It provides that any taxpayer who shall violate any of the provisions of the Act may be restrained from continuing in business, and the proper prosecution shall be instituted in the name of the State of Alabama by the Attorney General, etc.
Since a court of equity is the only one which has general jurisdiction in respect to injunctions, this bill was filed in equity as for an injunction, and so prayed. There is no other prayer for special relief, but there is a prayer for general relief.
We will consider only those grounds of demurrer which are insisted upon by appellant in argument.
1. The first contention is that there is no foot-note to the bill. While this suit was begun before the Code of 1940 became effective, it was filed after the new rules in equity practice became effective. The latter date was January 1, 1940, as shown by the minutes of this Court. Rule 11 abolishes the requirement for a foot-note. Code 1940, Tit. 7, Appendix.
It is next insisted that the bill should be verified and that it is not done in such manner as to satisfy that requirement.
Rule 12 provides that only bills which seek preliminary or interlocutory relief or bills of discovery need be sworn to. This bill prays for a temporary injunction, which is preliminary relief and is of the sort mentioned in Rule 12. But there are two reasons why the demurrer is not well taken. One is that such bill is not rendered subject to demurrer by the failure to verify it, but unless so verified preliminary or interlocutory relief will not be granted. While the bill prays for such relief, the question here is not whether it should be granted, but whether it is subject to demurrer. If complainant does not seek to have the court grant the preliminary or interlocutory relief, the affidavit is unnecessary. If it is sought, then it must be verified by sufficient affidavit. Under the old rule (No. 15), the verification was not limited to those seeking preliminary relief, but a distinction was drawn between the sufficiency of a bill on demurrer and the propriety of the issuance of a preliminary writ without verification. Birmingham Belt R. Co. v. City of Birmingham,
Another reason why it was not thus rendered subject to demurrer is that by section 5644, Code 1923 (Code of 1940, Title 7, section 72), the State was exempt from such requirement. State v. Bley,
3. It is next insisted that an injunction is only incidental to the enforcement of some other equitable right. No authority is cited. Such is not the true theory of an injunction suit. 28 Amer.Jur. 198, section 3.
4. It is also contended that there is too much generality of expression in the bill to be good pleading.
In weighing a bill against such claim, we must look to the purpose sought to be accomplished, and the facts necessary to that relief. The bill here does not seek to collect taxes. It does not seek to enforce a lien. But it seeks to restrain the respondent from continuing to engage in the business of selling tangible personal property at retail in this State, until he shall have complied with the provisions of the State Sales Tax Act as therein set forth. The right to such an injunction is conferred by the features of the Sales Tax Act, to which we have referred.
The particular in which he has violated the Act so as to justify the injunction must be set out with such specific detail as to apprise defendant of its true nature. In this respect the bill goes into detail, by alleging that during certain periods covered by the Act, defendant was engaged in selling at retail personal property in Birmingham under the name of C. P. Campbell Produce Company. Title 51, section 753, Code of 1940. That the State Department of Revenue fixed by proceedings authorized by law upon his returns and set out in detail the amount of his unpaid tax levied by this Act, and alleged that he had not paid it: that execution was issued as provided in section 770 and returned no property found.
Appellant attacks the sufficiency of the allegations in the bill on the ground that they do not give enough detail. But it alleges facts which give the revenue department jurisdiction under the law to make a deficiency assessment and alleges that such assessment was duly made. Considering the purpose of this suit, great particularity of detail in stating the proceedings leading to that assessment is not necessary. The only necessity in that respect in making averment in this bill is to show that defendant has violated the provisions of the Sales Tax Act to such extent as to justify *220
the injunction sought. We doubt not that a persistent failure to pay the tax imposed by the Act without adequate excuse is sufficient, likewise would probably be a persistent failure to make due returns as required by the Act. It is not to be assumed that a final assessment by the State Department of Revenue is always necessary to justify such an injunction. But when the injunction is sought solely for the failure to pay a final assessment, that assessment should be valid under the law. To that end, the bill needs only show such persistent failure. See State v. Allen,
5. It is next insisted that the only allegation in the bill that defendant has not paid a definite sum on account of the sales tax requirement is the assessment made by the State Department of Revenue, and that the proceedings leading to that assessment are in violation of the due process (section 6), and the jury trial (section 11) clauses of the Constitution of Alabama.
The contention is that by the Act such assessment constitutes a personal judgment against defendant, and that service of notice by registered mail does not afford due process leading to such a judgment, and that a jury trial is also guaranteed to that end. Since the Act here in question authorizes execution to issue, Code of 1940, Title 51, section 770, when certain conditions exist, their existence have the force and effect of a judgment. Compare Winston v. Browning,
The legislature had full power under section 139 of the Constitution to confer on the State Department of Revenue the authority to render a personal judgment conformably with other constitutional requirements or to provide that its assessments shall have such force and effect. State Tax Comm. v. Bailey
Noward,
The Act now under consideration requires not less than twenty days' notice by registered mail. Code of 1940, Title 51, section 767; section XVII of the Act of 1939, supra.
It has long been held that a personal judgment cannot be rendered in this State against a non-resident without personal service, and that notice by registered mail is not such service. Ex parte Luther,
The authorities generally on this subject refer to Pennoyer v. Neff,
There is a distinction between substituted service andconstructive service in this connection. The former includes the act of leaving the process at the residence or place of business of the party (50 Corpus Juris 490), or of leaving it with an agent or attorney of the party (50 Corpus Juris 494, section 101), or by mailing it to the party (50 Corpus Juris 495, section 102). Service by publication alone is said more accurately to be constructive service, (50 Corpus Juris 490, section 94, note 69); but it is sometimes said to be "a substitute for personal service and gives constructive notice only." 50 Corpus Juris 496, notes 3, 4. But it is said in Milliken v. Meyer, supra, the service should be reasonably calculated to give him actual notice (unless the proceeding is in rem, when constructive notice will suffice).
The principle is fully established that when a person is personally before the court in the proceeding either because he himself instituted it, or because he had personal service of the original process in the forum, all action taken thereafter in that proceeding or supplementary to it, may be begun by substituted service. Quill v. Carolina Portland Cement Co.,
The taxpayer instituted this proceeding by making his returns to the State Department of Revenue, and thereby submitted himself personally and generally to its jurisdiction. Howell
Graves v. Curry, Ala.Sup.,
In State Tax Comm. v. Bailey Howard,
We find here no violation of due process as a consequence of the nature of service on the taxpayer in a proceeding begun by him.
The necessities of this case do not require an extension of the principle of substituted service to justify a personal judgment against a resident taxpayer to other procedural situations.
The contention is also made that since the assessment is in legal effect a personal judgment, the right to a trial by jury should be granted to withstand section 11 of the Constitution of Alabama. We have had occasion recently to review the general principles which apply to such a contention under that constitutional ordinance. Ex parte Homewood Dairy Products Co., supra; Tillery v. Commercial Nat. Bank,
On appeal from a tax assessment of property for ad valorem taxes to the circuit court trial by a jury is available. Code of 1940, Title 51, sections 53, 74, 77 and 110. When the appeal is taken from the assessment of a sales tax made by the State Department of Revenue (Code of 1940, Title 51, section 768), it is in all respects as provided in the Code of 1940, Title 51, section 140. Under the latter the appeal is to the circuit court, in equity, without provision for a jury, as are all appeals from the State Department of Revenue. But in no instance has a trial by jury been available on contests before the Tax Board of Equalization or county commission or State Department of Revenue.
We are not here concerned with the question of whether on an appeal under section 768 (as in section 140), supra, the taxpayer should be accorded a jury trial on any constitutional ground, because no such appeal was taken. If on that appeal, appellant has the constitutional right to a jury trial, it would be granted though the statute does not provide for a jury on such trial, since it does not prohibit a jury trial. The court will obey the constitutional mandate and grant a jury, rather than knock down an act because it does not expressly provide for a jury, if it does not prohibit one and the Constitution guarantees it. Montgomery St. Ry. Co. v. Sayre,
We leave out of consideration any such question because no appeal was taken, and those provisions of law do not expressly prohibit or grant a trial by jury, whereas appeals in some other proceedings do now so provide.
In State v. Bley,
The question is not concluded by the fact that a final assessment of a sales tax against the taxpayer is in legal effect a personal judgment. Since there was no legal right to a jury trial in tax assessment proceedings before boards and commissions when the Constitution was adopted, *222 containing section 11, the right to a jury trial so guaranteed never operated in such proceedings. It was in the province of the legislature to make such a final assessment operate as a personal judgment without violating section 11, supra, or the due process clause, section 6, when sufficient notice is required and a full hearing authorized.
As for any ground of demurrer which has been argued on this appeal, and as we have discussed, we find no reversible error in overruling the demurrer.
Affirmed.
GARDNER, C. J., and BOULDIN and LIVINGSTON, JJ., concur.
