178 So. 2d 636 | Ala. | 1965
The members of the Alabama Liquefied Petroleum Gas Commission appeal from a decree overruling a motion to dissolve a temporary injunction by which appellants were enjoined from collecting certain permit fees under the Alabama Liquefied Petroleum Gas Act; Act No. 275, 1951 Acts, page 559. See 1958 Recompilation of 1940 Code, Title 26, § 179(57) et seq.
The amended bill prays for declaratory relief and for temporary and permanent injunctions.
Complainants aver that each of them is a liquefied petroleum gas dealer as defined in Act No. 275. Pertinent provisions of the act recite:
"Section 7. INSURANCE AND BONDS REQUIRED; PERMIT. — Before any person shall engage in or continue in the business of selling, distributing, storing or transporting liquefied petroleum gases, except where the liquefied petroleum gas so handled is in quantities of less than one gallon U.S. water capacity and is an integral part of a device for its utilization, or in the business of selling, installing, servicing, repairing or adjusting liquefied petroleum gas containers, tanks or systems, at retail, in the State of Alabama, such person shall make application for, on forms provided by the Commission, and shall first obtain from the Commission a permit, and shall execute and file with the Commission a bond and the insurance herein required.
. . . . *408
"Section 8. PERMIT FEES. — Every applicant for a permit, as provided in Section 7 of this Act, shall at the time of issuance of the permit by the Commission and annually thereafter pay to the Commission a minimum permit fee of Two Hundred Fifty Dollars ($250.00); applicants who are engaged in the business of selling liquefied petroleum gases shall pay a permit fee equal to one-fourth (1/4) of one per cent (1%) of his annual gross receipts from the sale of Liquefied Petroleum Gas based on dollar volume sales for the preceding twelve (12) months, said annual fee however shall not be less than two hundred fifty nor more than Five Hundred Dollars ($500.00), which shall be the maximum fee due under the provisions of this Act. Said permits and fees shall be due on October 1st and delinquent on October 31st of each year. Every person required to secure such permit and pay said fees who fails to do so by said delinquent date shall incur a penalty of Ten Dollars ($10.00) for each day he is delinquent in complying with the provisions of this Section, and said penalty shall be paid to the Commission before the issuance of said permit."
Complainants allege that they have paid for and received from the Commission permits for the year from October 1st, 1963, to October 31st, 1964, and are operating thereunder; but, subsequent to issuance of the permit, complainants have received from respondents under date of December 31, 1963, the following communication:
"TO ALL ALABAMA LP-GAS DEALERS:
"This Commission has been advised in a recent ruling by the Attorney General that each branch operation* having storage and selling from this storage at retail must have a separate permit from the Alabama Liquefied Petroleum Gas Commission.
"If orders for gas are received and filled from your branch operation, a separate permit will be required. If your storage is only used as stand-by storage, a separate permit will not be required.
"These permit fees will be collected as set forth in the Alabama LP-Gas Act, based on 1/4 of 1% of gross sales of LP-Gas from the previous year with a $250.00 minimum and $500.00 maximum, due upon receipt of this letter and delinquent thirty days thereafter.
"We are enclosing a copy of the Attorney General's opinion for your information, together with an Application Form to be completed for your Branch Offices.
"If you have any questions concerning this matter, please contact the Commission.
". . . . . .
"* Normal Branch operations
. . . . . . ."
Complainants aver that for more than ten years each of them has been required to pay for only one permit, but under the December communication each complainant will be required to pay for multiple permits, to their damage and contrary to law.
Appellants argue that, for two reasons, the court erred in refusing to dissolve the temporary injunction. Appellants say, first, that the court erred because the suit is against the state, and, therefore, forbidden by Section 14 of Constitution of 1901; and, second, that the court erred because Act No. 275, when correctly interpreted, requires every liquefied petroleum gas dealer to obtain and pay for a permit for each separate place of business in the state.
In support of the argument that the suit is against the state, appellants cite Wallace v. Malone, (Ms.), 6 Div. 72, June 19, 1964, where this court held that the trial court erred in refusing to dissolve a temporary injunction issued against the members of the State Board of Education enjoining them from canceling a contract made by the Board with complainant in that *409 case. This court said that the object of the bill ". . . . is by injunction, indirectly to compel the specific performance of a contract of the State, by forbidding all those acts and doings which constitute breach of contract. This may not be done."
This court, however, said also:
" 'Generally speaking, it is the nature of the suit or relief demanded which the courts consider on determining whether a suit against a state officer [or board] is in fact one against the state within the rule of immunity of the state from suit * * *.' 49 Am.Jur., States, Territories, and Dependencies, § 94. State of Alabama v. Norman Tobacco Co., Inc.,
273 Ala. 420 ,142 So.2d 873 ."
In State of Alabama v. Norman Tobacco Company, supra, this court affirmed a decree denying the state's motion to discharge and dissolve a temporary injunction which had been granted pending determination of an appeal under § 140, Title 51, Code 1940, from a final assessment by the Department of Revenue. In Norman Tobacco, however, the injunction was not against the collection of a tax. The injunction was against refusing to sell tobacco tax stamps to the taxpayer and from further proceedings until a dispute could be settled.
The instant parties make no mention of the principle that a court of equity will not enjoin the collection of a tax, alleged to be illegal, unless there is, in addition to the illegality of the tax, some recognized ground of equitable jurisdiction; Selma Building Loan Ass'n v. Morgan,
We do think it must be regarded as settled that a taxpayer may, without violating Section 14 of the Constitution of 1901, maintain a bill for declaratory decree against a state official to construe a taxing statute when a justiciable controversy exists. Curry v. Woodstock Slag Corporation,
The substantial point here in controversy is whether Act No. 275 provides for the collection of a permit fee for each place where a liquefied petroleum gas dealer stores gas and from which place he sells at retail.
In construing the statute, we observe certain rules. Taxing statutes are to be construed strictly against the taxing power, and doubts must be resolved against the government and in favor of the taxpayer. Gotlieb v. City of Birmingham,
The construction placed on a statute by the officers authorized to construe and administer the law is entitled to favorable consideration where such statute is ambiguous or of doubtful meaning, and where such construction has for many years controlled the conduct of public business. Glencoe Paving Co. v. Graves,
The language of the statute is that "Before any person shall engage in . . . . the business of selling . . . . gases . . . . in the State of Alabama, such person . . . . shall first obtain from the Commission a permit . . . . ." (Emphasis Supplied.)
Section 8 provides that every applicant for a permit shall pay $250.00 and, if selling gases, shall pay a permit fee equal to a percentage of his annual gross receipts. We find no provision that the fee paid shall vary according to the number of places from which the taxpayer sells gas. *410
We note that in levying charges for licenses to sell other commodities, the legislature has employed language which clearly requires the payment of more than one fee when the taxpayer sells from more than one place of business. For example:
§ 462, Title 51, recites:
"Each person dealing in, selling, or purchasing for resale, automobiles, trucks, or other self-propelled vehicles, shall pay an annual state license as provided in this section, and shall pay a county license of one-half the amount of his state license for the use of the counties. The following licenses shall be paid by each dealer, each agent or other person, except agents of a dealer who have procured the licenses required in the following section: In cities and towns of fifty thousand or more inhabitants, one hundred and forty dollars; . . . . In all other places, whether incorporated or not, thirty dollars; provided, a person maintaining more than one place of business in the same city or town for the sale of automobiles, trucks, or other self-propelled vehicles, shall pay an additional license of one-half of the license levied on his principal place of business for each additional place of business; . . . ."
§ 484, Title 51, recites:
"Each retail dealer in cigars, cheroots, stogies, cigarettes, smoking tobacco, chewing tobacco or snuff, or any substitute therefor, either or all, shall pay to the state the following privilege license: In cities of twenty-five thousand inhabitants and over, fifteen dollars; . . . . This privilege license is levied on each place of business owned or operated by retail dealers, whether under the same roof or not. . . . ."
§ 831, Title 51, recites:
"Before any person, firm, or corporation shall engage in or carry on any business or do any act for which a license by law is required, he, they, or it, except as otherwise provided, shall pay to the judge of probate of the county in which it is proposed to engage in or carry on such business or do such act, or to the commissioner of licenses or the state department of revenue, as specifically the amount required for such license, . . . . (a) Whenever a license is levied in this title, there shall be collected both a state and county license for each place of business, except as specifically otherwise provided. . . . ."
§ 831 does not apply to the permit fee imposed by Act No. 275 because that fee is not a tax or license fee "levied in this title," that is, Title 51.
We are of opinion that the language of Act No. 275 does not require taxpayer to purchase a permit for each place of business.
In 1951, on request of the Commission, the attorney general delivered an opinion responding to questions concerning Act No. 275. Inquiry 5 recited as follows:
" '5. Will a company under one name with officers and storage facilities, or either at several localities, be required to obtain one permit or a permit for each locality?" Quarterly Report of Attorney General, October 1, 1951 — December 31, 1951, Vol. 65, 5, 6.
The attorney general replied as follows:
*411"I can find nothing in the act to indicate that a company, operating in the manner described in your fifth inquiry, would be required to obtain a separate permit for each locality in which it operates. On the contrary, the wording of Section 7, supra, indicates that the permit authorizes the 'person,' (as defined in the act) to engage in the business activities enumerated therein 'in the State of Alabama.' I, therefore, conclude that only one permit is required of the company referred to in your fifth inquiry." Quarterly Report of Attorney General, supra, at page 8.
Complainants allege in the bill of complaint that for more than ten years they have been required to buy only one license. We do not understand that this allegation is denied.
The rule of construction, favoring administrative constructions long followed, supports the proposition that the statute does not require more than one license.
Appellants rely on certain cases to support the proposition that for more than one place of business to be operated under a single permit, there must be unity of management, ownership and locality, and that one permit is not sufficient to allow operation of separate branches unless there is also unity of locality.
We do not think the cited cases support such a rule unless the statute expressly so requires.
In Hochstadler v. State,
In Jebeles v. State,
"Before any person, firm, or corporation shall engage in, or carry on any business, or do any act, for which a license is by law required, he or they shall pay to the judge of probate of the county in which it is proposed to engage in, or carry on such business, or to do such act, the amount required for such license; . . . . and such license shall not be transferable, nor shall it entitle the holder thereof to carry on any other business, or to do any other act than that named therein, or at any other location than that therein specified."
The express provisions of § 632 seem to require the decision in Jebeles.
In Johnson v. State,
In Brown Plumbing Heating Co. v. McDowell,
In Anniston Electric Gas Co. v. State,
If there were in the present Code a statute in the language of § 2402, Code 1907, it would afford persuasive support for the argument that the taxpayers in the instant case must have a separate license for each separate place of business, but we have found no such statute. § 2402, Code 1907, appears to have been omitted from the Code of 1923, and the closest thing to it we have found in Code 1940 is § 831, Title 51, already referred to. § 831, however, refers only to licenses levied in Title 51, and the liquefied petroleum gas dealer permit or license is not levied in Title 51.
In Opdyke v. City of Anniston,
We are of opinion that Act No. 275 requires only one permit for one dealer in this state.
Error is not shown and the decree appealed from is affirmed.
Affirmed.
LAWSON, GOODWYN and MERRILL, JJ., concur.
