Ex parte STATE ex rel. LAWSON, Atty. Gen.
1 Div. 134.
Supreme Court of Alabama.
May 29, 1941.
2 So.2d 765
The plaintiff demurred on numerous grounds, but no ruling on the demurrer appears. The plaintiff filed replication, the first joining issue, and the second: “As a further answer to said plea No. 2 and as a reply thereto, plaintiff says that at the time defendant came to her house with the writ set up in said plea, he took her in custody and carried her to Elba and put her in jail, and told her he had attached her property and that he would not take a bond for her property or for her, and that he kept her at Elba in jail for four hours or more and while she was in jail he moved her property to a garage in Enterprise and locked up her property, and that she did not know where her property was until sometime later, and that he never gave her any keys where the property was locked up, but put the property in the garage of another person, who had the keys to the property and who was holding the property for defendant.”
Defendant made motion to strike said special replication, but no ruling appears thereon.
The plaintiff‘s evidence tended to show that although she was ill, defendant took the plaintiff into custody without a warrant and placed her in jail; that he removed all of her household goods and effects from the premises, loaded them on a truck and carried them to Enterprise, placed them on the floor in a garage, as one witness described the situation “in a mess” with water puddles around them, and kept them so stored and under lock and key for five months or more, and in the meantime the garage where the property was stored caught fire twice.
What became of the property eventually does not appear.
The defendant‘s evidence, on the other hand, goes to show that plaintiff‘s illness was feigned, that she resisted the execution of the process by refusing to vacate the premises and locking herself up in the house; that he—defendant—procured a warrant against her for resisting the execution of said process, and then removed the property from the house and carried it to Enterprise and stored it in said garage with plaintiff‘s consent, and advised her that she could get the property by calling for it.
Without any suggestions as to the sufficiency of the plea or replications we are clear to the conclusion that the question of whether or not the defendant in the execution of said process exercised the care and discretion which a reasonable man would exercise under like conditions and circumstances was a question for the jury. 24 R.C.L. 926, § 15; Ib. p. 928, § 17; p. 929, § 19; 57 C.J. 817, § 249; p. 819, § 254; p. 820, § 255.
It was also for the jury, as to whether or not, in the circumstances, the defendant was guilty of conversion in not restoring the property to plaintiff‘s possession. 57 C.J. 899, § 511.
The court, therefore, erred in giving the affirmative charge for the defendant, and for this error the judgment is reversed.
Reversed and remanded.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.
Thos S. Lawson, Atty. Gen., and John W. Lapsley and J. Edw. Thornton, Asst. Attys. Gen., for petitioner.
LIVINGSTON, Justice.
This is an original action in this Court to restrain by writ of prohibition the
The record and proceedings show that the Southern Kraft Corporation is a corporation organized and existing under the laws of the state of Delaware, and is duly qualified to do business in the State of Alabama, with its principal place of business in Mobile County. That on the 7th day of October 1940, the State Department of Revenue made final an assessment against the Southern Kraft Corporation under and by virtue of the provisions of the Alabama Use Tax Act, approved February 28, 1939.
The motion of the State to dismiss the appeal pending in the Circuit Court of Mobile County, in Equity, was denied by the Hon. J. Blocker Thornton, presiding judge, on January 16, 1941. Hence this proceeding.
The State insists (first) that the provisions of
With reference to the first question, the pertinent part of section XXIV, supra, is as follows: “No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against this State or against any officer thereof to prevent or enjoin under this act the collections of any tax or any amount of tax herein required to be collected; but after payment of any such tax or any such amount of tax herein required to be collected under protest, duly verified and setting forth the grounds of objection to the legality thereof, the retailer or person making the payment may bring an action against the Commissioner of Revenue in the Circuit Court of Montgomery County, Alabama in equity, praying a declaratory judgment determining his tax liability for the amount so paid or his rights to a refund thereof. From the decree of the Circuit Court either the Commissioner or the person making the payment may appeal direct to the Supreme Court within thirty days and such appeal shall be a preferred case.”
The courts of the several states have made numerous statements as to the purpose of declaratory judgments acts. It has been said that their primary purpose is to relieve litigants of the common law rule that no declaration of rights may be judicially adjudged unless a right has been violated for the violation of which relief may be granted. And further, that they render practical help in ending controversies which have not reached the stage where other legal relief is immediately available. Such statutes enable parties between whom an actual controversy exists or between whom litigation is inevitable to have the issues speedily determined where their determination would be delayed to the possible injury of the one or the other if they are compelled to await the courts of ordinary judicial proceedings. They are designed to supply the need of a form of action that will set controversies at rest before they lead to repudiation of obligations, invasion of rights, and the commission of wrongs. For other expressions as to the purpose of declaratory judgments acts, see 16 Amer.
No case is cited, nor has our search revealed one in which it has been held that the right of action for a declaratory judgment is a substitute for an appeal. The nature, history and purpose of the action indicate that the remedy provided is not a substitute for an appeal, and is cumulative rather than exclusive. There is nothing in the Act here involved to indicate a legislative intent that the remedy provided for therein is exclusive. We hold, therefore, that it is merely cumulative.
As previously stated, this proceeding is directed at an appeal to the Circuit Court of Mobile County, in Equity, from a final assessment made by the State Department of Revenue against the Southern Kraft Corporation under and by virtue of the Use Tax Act.
“If any taxpayer against whom an assessment is made by the State Tax Commission under any assessment required by law to be made by the State Tax Commission, is dissatisfied with the final assessment as fixed by the said State Tax Commission, he may appeal from said final assessment to the Circuit Court of Montgomery County sitting in Equity, or, in cases other than public utilities, to the Circuit Court of the County in which the taxpayer resides if the taxpayer has within the State a permanent residence.”
The material inquiry then is whether the Southern Kraft Corporation had, or could have a permanent residence in Alabama within the purview of said section 103, supra, since it is a foreign corporation, and whether or not the legislature intended to include foreign corporations in granting to the taxpayer the right to appeal to the circuit court of the county of his or its residence if he or it has within the State a permanent residence. It appears to be conceded that if a foreign corporation can have a permanent residence in Alabama within the contemplation of section 103, supra, Southern Kraft Corporation has such a residence.
The federal courts have more often defined the legal residence of a foreign corporation, since usually it is connected with a federal question, and our statutes using a term defined by the federal courts will ordinarily be considered as having adopted the meaning given to it by the federal courts, if consistent with our conception of its true meaning.
In aid of a solution of the questions here presented, a review of some of the authorities touching the taxation of the intangibles of a foreign corporation is helpful. By a fiction they follow the owner wherever he shall reside. In the case of Wheeling Steel Corporation v. Fox, 298 U.S. 193, 56 S.Ct. 773, 776, 80 L.Ed. 1143, the Court speaking through Chief Justice Hughes said:
“When we deal with intangible property, such as credits and choses in action generally, we encounter the difficulty that by reason of the absence of physical characteristics they have no situs in the physical sense, but have the situs attributable to them in legal conception. Accordingly we have held that a state may properly apply the rule mobilia sequuntur personam and treat them as localized at the owner‘s domicile for purposes of taxation. * * *
“The corporation complied with the laws of the state of its creation in designating its ‘principal’ office in that state. It is manifest that this designation, while presumably sufficient for the purpose was a technical one and that the office is not a principal office so far as the actual conduct of business is concerned. While a duplicate stock ledger and records of transactions with respect to capital stock are maintained in Delaware, the business operations of the corporation are conducted outside that state. The office in Delaware is maintained through the service of an agency organized to furnish that convenience to corporations of that description. To attribute to Delaware, merely as the chartering state, the credits arising in the course of business established in another state, and to deny to the latter the power to tax such credits upon the ground that it violates due process to treat the credits as within its jurisdiction, is to make a legal fiction dominate realities in a fashion quite as extreme as that which would attribute to the chartering state all the tangible possessions of the
Corporation without regard to their actual location. * * * “The corporation established in West Virginia what has aptly been termed a ‘commercial domicile.’ It maintains its general business offices at Wheeling and there it keeps its books and accounting records. There its directors hold their meetings and its officers conduct the affairs of the corporation. There, as appellant‘s counsel well says, ‘the management functioned.’ The corporation has manufacturing plants and sales offices in other states. But what is done at those plants and offices is determined and controlled from the center of authority at Wheeling. The corporation has made that the actual seat of its corporate government.”
This Court in the case of State v. Southern Natural Gas Co., 233 Ala. 81, 170 So. 178, 190, held that the franchise tax there exacted “is not on any basis a tax on business or a burden on the corporation‘s interstate commerce, but is laid on the exercise of corporate functions * * * within the state and its employment of its capital in Alabama, domiciled at its office in Birmingham within this state. The control of the business in all of its aspects was in Birmingham, as shown by the statement of facts.”
For the purpose of taxing the intangibles of a corporation which have been created and become a part of its local business outside of the state of its creation, the courts have said that the foreign corporation has a “business situs” or a “commercial domicile” in the state where it is doing business and in which the intangibles were created and exist. See First Bank Stock Corporation v. State of Minnesota, 301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061, 113 A.L.R. 228.
While it is true that if the term “resident” relates to legal domicile, a foreign corporation is a resident only of the state of its incorporation, but the term is not universally used in this sense. Many decisions, including a number of courts which approve the foregoing rule as technically correct and frequently controlling, support the view that for certain purposes at least a practical residence within the jurisdiction may be considered apart from the legal residence or domicile of the corporation, and that “foreign corporation” and “non-resident corporation” are not necessarily synonymous terms. According to this view, a foreign corporation may so establish its business within the state in conformity with the local laws as to justify treatment as a resident for certain purposes, and whether or not a foreign corporation can be deemed to have acquired a residence in the local jurisdiction, other than that of its incorporation, depends upon the connection in which the question arises. International Milling Co. v. Columbia Transp. Co., 292 U.S. 511, 54 S.Ct. 797, 78 L.Ed. 1396; 23 Am.Jur. pages 46-47-49, section 34, note 15, section 36, note 6, section 37; 13 Am.Jur. 281, section 148; 20 Corpus Juris Secundum, Corporations, § 1794, p. 18, note 78; 14-A Corpus Juris 1226, note 12.
From the record before us, it follows as our opinion that the Southern Kraft Corporation is a permanent resident of Alabama for any purpose which does not abridge a federal grant to it as a foreign corporation.
We need not cite authority to the proposition that statutes should be construed according to the manifest purpose and intention of the lawmakers, and such purpose should not be defeated by narrow construction based upon nice distinctions in the meaning of words.
It is to be noted that section 103, supra, is a revision of section 73 of the
It therefore follows that the Southern Kraft Corporation had the option or election of appealing to the Circuit Court of Mobile County, in Equity, or to the Circuit Court of Montgomery County, in Equity.
The writ of prohibition and the peremptory writ of mandamus are denied.
GARDNER, C. J., and THOMAS, BROWN, and FOSTER, JJ., concur.
BOULDIN, J., dissents for the reasons stated in his limited concurrence in the case of Jackson Securities Company v. State, ante, p. 288, 2 So.2d 760, this day decided.