In re OPINION OF THE JUSTICES.
No. 78.
Supreme Court of Alabama.
July 30, 1947.
31 So. 2d 558
By Messrs. Allen and Coleman
Whereas, there is now pending in the Legislature of Alabama Senate Bill 122 by Messrs. Henderson, Hardwick, Kendall and Clayton which provides for a refund of a portion of the State tax paid on gasoline when the gasoline is used in tractors used exclusively for agricultural purposes; and
Whereas, in view of the opinion of the Justices of the Supreme Court of Alabama as set forth in Re Opinions of the Justices No. 56, 238 Ala. 289, 190 So. 824, reasonable doubt exists as to the constitutionality of said Senate Bill 122 inasmuch as said Bill originated in the Senate; and
Whereas there is involved an important concrete constitutional question of a general public nature which entitles this body to invoke the provisions of
Be It Resolved by the Senate of Alabama that the Justices of the Supreme Court of Alabama, or a majority thereof, are hereby respectfully requested to render this body their written opinion, as provided under said
I hereby certify the above Resolution was adopted by the Senate of Alabama July 24, 1947.
(Signed) J. E. Speight
J. E. Speight Secretary of the Senate
A Bill
To Be Entitled An Act To provide for a refund of a portion of the State tax paid on gasoline when the gasoline is used in propelling or operating tractors used exclusively for agricultural purposes; prescribing a procedure for effecting refunds; authorizing the Commissioner of Revenue to issue permits and make rules and regulations to administer the Act; defining violations of the Act and prescribing penalties therefore.
Be it Enacted by the Legislature of Alabama:
Section 1. The purpose of this Act is to promote agriculture in Alabama, and to encourage and foster the progress of the farmers of this State by making it possible for them to use extensively mechanized equipment in competition with the farmers and agricultural interests of surrounding states.
Section 2. As used in this Act, “refund gasoline” means gasoline used as motor fuel for operating or propelling tractors used exclusively for agricultural purposes.
Section 3. Subject to the conditions set forth in this Act, a person who purchases gasoline as defined in
To the Senate of Alabama,
Montgomery, Alabama.
Sirs:
Your resolution No. 33 directs our attention to the question of whether Senate Bill 122 now pending in the Legislature “offends or is in conflict with that part of
We have heretofore expressed the opinion that an act to amend an existing act whose purpose is to raise revenue by which the amount to be collected under the latter act as amended is decreased or increased, is an act to raise revenue and by the terms of
If the proposed act affects the amount of revenue which flows into the State treasury, either as an original measure, or as an amendment to one already in existence, it is one to raise revenue as provided in the first part of
The legislature may make an appropriation payable upon certain conditions prescribed by it and impose the duty on some designated authority to determine whether those conditions have been met by some person making claim thereto. In re Opinion of the Justices, 244 Ala. 386, 13 So. 2d 674; Hawkins v. State Board of Adjustment, 242 Ala. 547, 7 So. 2d 775.
The legislative restriction as to the house in which bills to raise revenue shall originate is as we have noted provided by
So that the question is whether Senate Bill 122 is an exemption from an existing tax, or is an appropriation payable out of revenue thus derived. Its language is that of an appropriation. The person intended to be benefited, along with all other purchasers, must first pay the tax. The bill
We think therefore that proposed Senate Bill, 122, supra, is not a bill to raise revenue which must originate in the House of Representatives under
Respectfully submitted,
ARTHUR B. FOSTER,
J. ED. LIVINGSTON,
ROBERT T. SIMPSON,
DAVIS F. STAKELY,
Associate Justices.
LAWSON, Justice (dissenting).
It is with regret that I feel that I must dissent from the opinion of the majority of the Justices.
The first sentence of
In the case of Perry County v. Selma, Marion & Memphis R. Co., 58 Ala. 546, Mr. Justice Stone (later Chief Justice) in discussing the background and the effect of this provision, said:
“* * * It has been suggested that this is a mere rule for the legislature, a disregard of which does not invalidate the law. It is known to the profession that this rule was adopted from the British constitution; and that it was engrafted thereon, because the House of Commons, in their Parliament, is the only popular department of their government, chosen by the people, and directly accountable to them. In that country, unlike the rule with us, it is the rule that the House of Lords can make no amendment of such bills, but must take them, without amendment, as they leave the House of Commons. This rule is guarded with sedulous care, and is treasured, as fundamental, in the preservation of the subject‘s goods from unreasonable assessment and spoliation.
“With us the reason of the rule does not exist to the extent it does there, for each house of the legislature is elected by the people for a short term, and each is alike accountable to the popular will. But whether there be a reason for its maintenance or not, it has been a canon of the Federal Constitution from the date of its adoption, and of the Constitution of this State from the time of its birth. A rule thus sanctioned and preserved—thus imbedded in the very marrow of our system—we feel not at liberty to disregard. * * * (Emphasis supplied.)
It was definitely decided in the decision of this court from which we have just above quoted that a bill which comes under the influence of the first sentence of
Obviously the bill here under consideration does not attempt to “raise revenue” in the sense that it purports to authorize additional taxation. However it has heretofore been decided that a bill whose chief purpose is to decrease revenue raised by other provisions of law also comes within the influence of the first sentence of
In an advisory opinion rendered to the Senate of Alabama August 18, 1939 (238 Ala. 289, 190 So. 824, 825), the Justices of this court held that a bill introduced in the senate which had for its purpose the exemption of certain types of sales from sales tax was violative of
It was there said: “Any bill, we think, whose chief purpose is to create revenue, or to increase or decrease revenue as created in another act is one to raise revenue and must originate in the House of Representatives under the first sentence in Section 70 of the Constitution.” See Perry County v. Selma, Marion & Memphis R. R. Co., supra.
The answer to your inquiry, therefore, depends on the answer to the question, What is the chief purpose of the bill here under consideration?
Unquestionably, if this bill becomes law it will result in a decrease in the revenue of the State of Alabama available for the
The other five-sixths of the tax paid on gasoline used in tractors would find its way back into the pockets of the man who paid the tax and that is the chief purpose of this bill.
The bill contains a provision to the effect that its purpose is to promote agriculture. But how does it purport to aid agriculture? The answer is obvious: By reducing the tax burden of the farmer who uses tractors and, as before stated, that is the chief purpose of the bill. A reduction of his tax burden naturally results in a decrease of revenue to the State.
It is said that this is an appropriation bill, not a tax reducing bill, and consequently the first sentence of
Appropriation bills can, of course, originate in the senate and it is true that every appropriation bill reduces the amount of revenue which can be thereafter used for other purposes. But the appropriation here under consideration shows on its face that it was not made for any governmental purpose, but for the purpose of enabling the State to refund to taxpayers monies collected by the State but which were not intended to be retained and used in the public interest.
The mere fact that a bill carries an appropriation provision does not relieve it from the influence of the first sentence of
In my opinion the conclusion of the majority that the chief purpose of this bill is not to decrease the revenue of the State of Alabama by decreasing taxes, but is an appropriation bill, rings the death knell of this legislation if and when it is challenged on the ground that it is an appropriation of public monies to private individuals for nongovernmental purposes. The majority opinion does not say that such an appropriation is legal. It leaves that question unanswered. But I insist that the monies of the State of Alabama cannot be appropriated to farmers using tractors where there is no legal or moral obligation on the part of the State to do so. In other words, in my opinion the only way in which the appropriation involved in this bill can be upheld is upon the theory that the State has collected from the taxpayer money which it cannot legally retain because this bill operates to relieve the taxpayer from all but one cent of the gasoline tax on gasoline used in tractors.
In order to uphold the instant bill on the ground that it is an appropriation of State monies, it will have to be under the theory that the legislature of this state, in order to promote agriculture, may use State funds to in effect subsidize farmers. We have not come this far as yet. But this bill does not purport to provide a means of giving to the farmers of Alabama
Unquestionably the legislature has the right to provide for tax exemptions and if a bill of this nature is introduced in the house of representatives as a tax exemption bill, the possibility of attack on the ground above indicated would be avoided. But in spite of what I contend to be the obvious purpose of this bill, namely, that it is a tax reduction bill, the majority see fit to conclude to the contrary and rest their conclusion on the ground that the bill is an appropriation bill, thereby jeopardizing its constitutionality regardless of the house of the legislature in which it originates.
There seems to be no doubt but that this bill could not be legally introduced in the senate if it purported to amend the existing gasoline tax laws by exempting farmers from paying all of the tax now collectible on gasoline used in tractors except one cent. Perry County v. Selma, Marion & Memphis R. R. Co., supra; In re Opinion of the Justices, 232 Ala. 95, 166 So. 807; In re Opinions of the Justices, 238 Ala. 289, 190 So. 824. And this would, of course, be true if the bill contained a statement that the purpose of the bill was to promote agriculture.
In the bill here under consideration, for administrative purposes and no doubt to prevent tax evasion, a method of refund is provided rather than exemption. The result is the same as if exemption had been provided. The State of Alabama is deprived of revenue and the taxpayer is relieved of a tax burden. I think it is clear that such is the chief purpose of the bill.
Nothing that I have said is to be construed as an expression as to the wisdom of such legislation. That is a matter for the legislature.
I am constrained to the conclusion that Senate Bill No. 122 violates
BROWN, J., concurs.
GARDNER, Chief Justice.
Looking through form to substance, I am fully persuaded the bill is one to exempt from taxation, and as such should originate in the House.
The authorities are noted in the foregoing opinion of Justice LAWSON and there is no occasion to reiterate the reasoning therein employed, as I am in full accord therewith so far as relates to the inquiry here propounded.
The matter of the constitutionality of the bill viewed as an appropriation bill, is not embraced in the inquiry, nor do I consider that the bill can be properly so interpreted. I therefore see no occasion for a consideration of that question and of consequence withhold comment thereon. Otherwise I fully concur with the opinion of Justice LAWSON.
BROWN, Justice.
I am further of the opinion that said Act if passed would violate