54 So. 186 | Ala. | 1910
Lead Opinion
This action is by tbe appellant against tbe appellee to recover money paid under protest to said defendant as tax collector. Section 91 of tbe Constitution of 1901 exempts cemeteries from taxation. Subdivision 2 of section 2061 of tbe Code, in enumerating tbe properties exempt from taxation, inserts, after tbe word “cemeteries,” tbe following words, in parenthesis: “(But where cemeteries are owned, held, and lots sold therein for profit, tbe same shall not be exempt.)” Tbe court below overruled a demurrer to tbe first count of tbe complaint, bolding that that part of tbe section in parenthesis is violative of section 91 of tbe Constitution, and that tbe. property belonging to a cemetery company cannot be taxed, although it is held and lots therein are sold for profit. Tbe appellee mates a cross-assignment of error as to this action of tbe court, and as it seems to come first in tbe natural order of tbe subject we will dispose of it first.
Section 91 of tbe Constitution is plain and unambiguous, exempting from taxation all cemeteries, without qualification, and tbe Legislature has no authority to attach a qualification to it.—Anniston v. State, 160 Ala. 253, 48 South. 659. Tbe authorities in other states referred to are based upon entirely different provisions, and have no. application to this case. There was no error in overruling tbe demurrer to tbe first count of tbe complaint.
Tbe demurrer to tbe second count (which will be set out in tbe statement of tbe case) was sustained, and this raises tbe question whether or not tbe shares of stock which are based for their value, on property which is exempt from taxation, can be made subject to the tax. Whatever might be our views if it were a new question, it is settled by numerous authorities that tbe
Subdivision 9 of section 2082 of the Code provides that the shares of a corporation are subject to taxation, requires the chief officer to make a return of all the property of the corporation, etc., and also of the par value and market value of the shares, also that, in arriving at the value of the shares, the assessor “shall deduct from the aggregate amount of the sum at which
This court held that the said bonds must be deducted. The argument of the court is that though the special exception refers only to property otherwise taxed, yet all statutes in pari materia must be construed together, and as subdivision 10 of section 453 of the Code of 1886 (like subdivision 11 of section 2082 of the Code of 1907) provides that “all capital invested in bonds or .currency which are exempt from taxation” shall become liable to taxation when reinvested in taxable property, unless the tax has already been paid on such property, it would result in double taxation to tax the stock, while invested in nontaxable property, and then tax the same when reinvested. The court says: “If a part, of the money capital of an individual be invested in state bonds, it will be conceded that such part is not liable to taxation; why, then, should it be held that the portion of the capital of corporations so invested is taxable,. in the face of the constitutional mandate, The
We hold, then, that the value of the nontaxable property should be deducted from the market value of the shares of stock. Consequently the court erred in sustaining the demurrer to the second count; and as the third count involved only commissions, it is governed by the same principles.
The judgment of the court is reversed; and a judgment will be here rendered, overruling the demurrers to the complaint.
Reversed and rendered.
Dissenting Opinion
(dissenting). — The Constitution exempts cemeteries from taxation. The statute also' exempts cemeteries, but adds that “where cemeteries are owned, held, and lots sold therein for profit, the same shall not be exempt.” The Legislature was, of course, without power to ingraft an exception upon the constitution exemption. But what does the Constitution mean? It means to exempt those places where the dead bodies of human beings are buried, including, as I apprehend, places dedicated by their owners to future use for such