694 So. 2d 1307 | Ala. | 1997
Members of the Senate Alabama State House Montgomery, Alabama 36130
Dear Senators:
We have received Senate Resolution 126, by which you request the opinion of the Justices as to whether pending House Bill 765 violates certain provisions of the Constitution of Alabama of 1901. The resolution reads:
"BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinion on the following important constitutional questions which have arisen concerning the pending bill, House Bill 765, a copy of which is attached to this resolution and made a part hereof by reference.
"Generally, House Bill 765 levies in Hale County an additional privilege or excise tax on beer, malt, or brewed beverages in the amount of two cents per 12 fluid ounces or fraction thereof.
"The following relevant constitutional and statutory provisions are respectfully presented:
"Section 104 of the Constitution of Alabama of 1901 provides that nothing in Article *1308 IV shall affect the right of the Legislature to enact local laws regulating or prohibiting the liquor traffic.
"Section 105 of the Constitution of Alabama of 1901, which is located in Article IV, provides, no local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law.
"Subsection (e) of Section
28-3-190 of the Code of Alabama 1975, relating to an excise tax upon beer, provides, 'The tax herein levied is exclusive and shall be in lieu of all other or additional local taxes and licenses, county or municipal, imposed on or measured by the sale or volume of sale of beer . . .'"Based on these provisions of law and other applicable provisions:
"1. Is House Bill 765 a local law regulating the liquor traffic as authorized by Section 104 of the Constitution of Alabama of 1901, and accordingly, constitutionally permissible?
"2. Does House Bill 765 violate Section 105 of the Constitution of Alabama of 1901, as a local law concerning an issue subsumed by the general law provided in Section
28-3-190 ?"RESOLVED FURTHER, That the Secretary of the Senate is directed to send sufficient true copies of the pending bill, House Bill 765, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution."
House Bill 765 very simply proposes to levy a tax on beer sold in Hale County. Section 1 of House Bill 765 reads as follows:
"Section 1. Notwithstanding any provision of the law, in Hale County there is levied in addition to the beer tax imposed pursuant to Section
28-3-190 , Code of Alabama 1975, an additional privilege or excise tax on beer, malt, or brewed beverages. The amount of the additional tax shall be two cents ($0.02) per 12 fluid ounces or fraction thereof and shall be collected as other taxes on beer, malt, or brewed beverages."
Section 104 of the Constitution of Alabama of 1901 begins: "The legislature shall not pass a special, private, or local law in any of the following cases," and then lists 31 cases. It concludes:
"The legislature shall pass general laws for the cases enumerated in this section, provided that nothing in this section or article shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic; but no such local law shall be enacted unless notice shall have been given as required in section 106 of this Constitution."
(Emphasis added.)1 Section
Section
"The tax herein levied is exclusive and shall be in lieu of all other or additional local taxes and licenses, county or municipal, imposed on or measured by the sale or volume of sale of beer; provided that nothing herein contained shall be construed to exempt the retail sales of beer from the levy of a tax on general retail sales by the county or municipality in the nature of, or in lieu of, a general sales tax."
(Emphasis added.)
This Court held in Crosslin v. City of Muscle Shoals,
The Court of Civil Appeals held in Danny's, Inc. v. City ofMuscle Shoals,
Thus, the question before us is whether the proviso in § 104, which allows the Legislature to pass local laws regulating the liquor traffic, allows the Legislature to enact House Bill 765, notwithstanding that §
Does House Bill 765 propose to enact a law "regulating the liquor traffic"? The answer to this question depends on whether the proposed tax would be strictly a revenue measure or could reasonably be viewed as a regulatory measure.
The Court in State v. Commercial Loan Co.,
"[T]he word tax, unless expressly defined, is inclusive of both levies for revenue purposes and levies for regulatory purposes. In other words license fees are commonly called taxes even though strictly speaking they may be a charge or fee rather than a tax."
In City of Mobile v. M.A.D., Inc.,
"Collection. — The tax levied by subsection (a) of this section shall be added to the sales price of all table wine sold and shall be collected from the purchasers. The tax shall be collected in the first instance from the wholesaler where table wine is sold or handled by wholesale licensees, and by the board from whomever makes sales when table wine is sold by the board. It shall be unlawful for any person who is required to pay the tax in the first instance to fail or refuse to add to the sales price and collect from [the] purchaser the required amount of tax, it being the intent and purpose of this provision that the tax levied is in fact a levy on the consumer. . . ."
The Court also cited §
City of Mobile, 684 So.2d at 1287."[T]he legislature knows how to make a tax a consumer tax. The legislature used unequivocal language in §
28-3-184 , imposing a tax on 'malt or brewed beverages' and in §28-7-16 , imposing a tax on 'table wine,' to express its intention that those taxes be passed on to the consumer."
Similarly, §
"Collection. — The tax levied by subsection (a) of this section shall be added to the sales price of all beer sold, and shall be collected from the purchasers. It shall be unlawful for any person who is required to pay the tax in the first instance to fail or refuse to add to the sales price and collect from the purchaser the required amount of tax, it being the intent and purpose of this provision that the tax levied is in fact a tax on the consumer, with the person, firm, corporation, club or association who pays the tax in the first instance acting merely as an agent of the county or municipality for the collection and payment of the tax."
Thus, §
If §
Because we conclude that House Bill 765 does not propose "a local law regulating the liquor traffic as authorized by Section 104 of the Constitution of Alabama of 1901," its enactment would not be "constitutionally permissible," and we therefore answer your first question in the negative. Because a law enacted by House Bill 765 would not be exempted by the proviso of § 104 from the operation of Article IV of the Constitution, and because §
Although the above discussion answers the questions presented, we add the following *1311
lest the Legislature infer that we are implying that a local law similar to House Bill 765 could be made constitutionally permissible by the simple expedient of calling it a bill to regulate the liquor traffic. Subsection (e) of §
QUESTIONS ANSWERED.
Respectfully submitted,
PERRY O. HOOPER, Sr.
Chief Justice
HUGH MADDOX
RENEAU P. ALMON
JANIE L. SHORES
J. GORMAN HOUSTON, Jr.
MARK KENNEDY
RALPH D. COOK,
Associate Justices
"(a) Levy. — In addition to the excise tax levied by Article 5A of Chapter 3 of this title and the licenses provided for by Chapter 3A of this title and by Section28-3-194 , and any acts amendatory thereof, supplementary thereto or substituted therefor, and municipal and county licenses, there is hereby levied a privilege or excise tax on every person licensed under the provisions of said Chapter 3A who sells, stores, or receives for the purpose of distribution, to any person, firm, corporation, club or association within the State of Alabama any beer. The tax levied hereby shall be measured by and graduated in accordance with the volume of sales by such person of beer, and shall be an amount equal to one and six hundred twenty-five thousands cents (1.625 cents) for each four fluid ounces or fractional part thereof."
Article 5A of Chapter 3 of title 28 levies and allocates tothe state treasury a privilege or excise tax on persons licensed to sell beer. Chapter 3A of title 28 is the "Alcoholic Beverage Licensing Code."