117 So. 656 | Ala. | 1928
The trial was had before the judge of the court without a jury and upon an agreed statement of facts. The judgment was *126 for the defendant as probate judge, and plaintiff was taxed with the costs.
The appellant pursued the proper remedy for the redress of his wrongs, if such there were. Ala. Con. C. I. Co. v. Herzberg,
The counsel for appellant has stated the question involved, which is found in subdivision (a) of "Schedule 89, Public Utilities," p. 427, General Acts 1919. It reads as follows:
"Where no existing public utility is taken over such license tax for the first year, as well as for the second year, shall be based upon the the first year's business, but shall in noevent be less than one hundred dollars for the first year'sbusiness. Any person, firm or corporation establishing a new public utility shall pay to the state the sum of one hundred dollars, and shall also at the same time execute a bond, payable to the state of Alabama, to insure payment of whatever sum, in addition to the one hundred dollars, may be due when at the end of the first year the amount of the gross receipts for that year are ascertainable." (Italics supplied.)
It is further provided by the Revenue Act of 1919, § 377, p. 445:
"If any business licensed by this act shall commence after the first day of April in any year, the amount of the licenseshall be one-half of the year's license. In all other cases the license shall be taken out for the full term of one year, unless a shorter term is fixed by the provisions of this act. In all cases where the amount of license is rated according to the population of the town, city, or county, the population of such town, city or county as fixed by the last preceding United States Census shall govern." (Italics supplied.)
It is the insistence of counsel for appellee that the foregoing provisions of the statute were within and present a sound basis for a distinction of class for levying a minimum license tax upon a new public utility. Under the authorities, state and federal, the act with its classification is not void, since it is not discriminatory, arbitrary, unreasonable, and without foundation. Woco-Pep Co. of Montgomery v. City of Montgomery,
Under the Fourteenth Amendment, Constitution of the United States, and section 221, Constitution of Alabama, in Ex parte City of Birmingham v. O'Connell, supra, the court said, of the right to fix a rule of municipal license tax and toll the same:
"This court is of the opinion that satisfactory reason and authority justify the conclusion that such a classification is well grounded, and that, being so warranted, there is wrought by the section no illegal or unwarranted discrimination against any effected by the section; that the section in and of itself, or when considered in connection with other pertinent tax laws, does not offend any provision of the Constitution of Alabama nor the Fourteenth Amendment to the Constitution of the United States. * * * The matter presented for decision in Kidd v. Alabama,
"This decision (Kidd v. Alabama) is, as we understand it, rested upon the affirmative fact that a distinction in respect of taxation may be taken and made effective in a statutory system; that is, grounded in substantial considerations suggestive of equity and natural justice in the imposition of the burdens of taxation."
The power to tax an occupation is not dependent upon and limited by its ability "to earn a profit" as the business or occupation is conducted; there may be competition or negligence or other contributing causes or considerations entering into and affecting the extent of business or occupation in the extent of business or ability to earn a profit. Williams v. City of Talladega,
In the case of Quartlebaum v. State,
"Much must be left to the discretion of the Legislature, for exact equality of taxation can never be reached. So long as the burden falls with equal weight upon every member of a given class, natural and artificial persons alike, it is difficult to formulate an argument that such levy violates any provision of our own, or of the Federal Constitution. Neither of them requires a horizontal tax."
And the observation as to such general rule has not been departed from in this or federal jurisdiction, and is not void if, in the administration of the law, the classification is reasonable and its application or administration does not offend the requirements as to equality. The Legislature made a general class of new public utilities, intended and declared that all new public utilities should come under that class, then subdivided the class into those which "took over old public utilities," and operated them and those which "didnot take over old public utilities," but proceeded with construction. Under the agreed statement of facts, appellant comes within the last class or subdivision thereof. All public utilities coming under the provisions of that class, or the several subdivisions thereof, are treated alike. The distinction is inherent in the condition of operation and preparation therefor and is reasonable and sufficient classification for taxing purposes. General classifications may be subdivided into particular classes or reclassify members of a general class so long as there may be a substantial as distinguished from a fictitious basis for doing so. Soon Hing v. Crowley,
The assessment of other properties as stocks, bonds, moneys, etc., was held a sufficient basis for distinction, to cover stocks in foreign railroad corporations owned by the person against whom such other assessment was made, in Kidd v. State,
In the case of Kennamer v. State,
In Levi v. Anniston,
In Phœnix Carpet Co. v. State,
"* * * it must be equal and uniform. The equality and uniformity consists in the imposition of the like tax upon all who engage in the avocation, or who may exercise the privilege taxed; and if it be a franchise tax, upon all corporations belonging to the class upon which it is imposed. 1 Desty on Taxation, § 36; Cooley on Taxation (2d Ed.) 378; Delaware Railroad Tax, 18 Wall. 206 [
And in City Commissioners of Mobile v. Orr,
The court, through Mr. Justice Field, in Soon Hing v. Crowley,
The question in Connolly v. Union Sewer Pipe Co.,
"This court has held that classification 'must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * * But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the Fourteenth Amendment forbids this. * * * No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government. * * * It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and that in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification — and is not a mere arbitrary selection.' " Gulf, C. S. F. R. Co. v. Ellis,
This is the rule adhered to and applied to the facts of each case and statute under consideration.
We think the subdivision of the general classification into particular classes, or the classification of members of the general class, was not offensive to organic law, in that there was a substantial, as distinguished from a fictitious, basis for the classifications employed. That is to say, the schedule or classification before us measures up to the requirements of valid enactments under the Constitution, state and federal. Woco-Pep Co. v. Montgomery,
In the construction of schedule 89, p. 427, Gen. Acts 1919, with section 377, they should be made to harmonize as a part of the system or act to provide for the general revenue of the state of Alabama. Acts 1919, p. 282. The words here pertinent, of schedule 89, as to this class A, are, "In no event be less than one hundred dollars for the first year's business"; and those employed in section 377. "If any business licensed * * * shall commence (we interpolate "business") after the 1st day of April in any year, the amount of the license shall be one-half of the year's license." The plaintiff was entitled to recover in this cause the sum of $50 of the $100 paid the judge of probate under protest, since the business thus licensed commenced to do business, for and within the purposes of its creation and the construction of its properties and facilities, after the 1st of April.
The judgment of the circuit court is reversed, and a judgment here rendered in favor of plaintiff for $50, with interest thereon.
Reversed and rendered.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.