Greene v. E.H. Taylor, Jr., & Sons

• Decision Date: 17 June 1919
• Citation: 184 Ky. 739,212 S.W. 925
• Parties: GREENE v. E. H. TAYLOR, JR., & SONS.
• Court: Kentucky Court of Appeals

212 S.W. 925

184 Ky. 739

GREENE v. E. H. TAYLOR, JR., & SONS.

Court of Appeals of Kentucky.

June 17, 1919

Appeal from Circuit Court, Franklin County.

Suit by E. H. Taylor, Jr., & Sons against Robert L. Greene, Auditor. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas H. Morris, Atty. Gen., and Davis M. Howerton, Asst. Atty Gen., for appellant.

Hazelrigg & Hazelrigg, of Frankfort, for appellee.

HURT J.

E. H Taylor, Jr., & Sons is a domestic corporation, and is engaged in the manufacturing of double stamp spirits. Its capital stock consists of $1,000,000 par value, and divided into shares. For the year 1918 it was required to and did pay into the treasury a license tax, which, together with the interest and penalties, amounted to the sum of $670. This license tax is the one provided for by section 4189a, Ky. Stats. Thereafter it made application to the auditor of public accounts for the return to it of the sum paid, which being refused, it instituted a suit against the auditor, to require him, by a writ of mandamus, to draw a warrant upon the treasurer in behalf of the corporation for the sum paid, and this suit resulted in a judgment of the circuit court, granting to it the relief sought, and from this judgment the auditor has appealed. Two questions are presented upon the record for consideration. The one is whether or not any such tax was due from the corporation, and the other is whether such facts are presented as entitle it to have a writ of mandamus against the auditor to require a return to it of the money paid. These will be considered in their order.

(a) The contention upon the part of the auditor is that the corporation is due to pay the taxes collected, under the provisions of section 4189a, Ky. Stats., which is section 1, chapter 7, Session Acts 1917. The section is as follows:

"All corporations having a capital stock divided into shares organized by or under the laws of this or any other state or government, owning property or doing business in this state, except foreign insurance companies, whether fire, life, accident, casualty or indemnity, foreign and domestic building and loan associations, banks and trust companies and all corporations, which, under existing laws, are liable to pay a franchise or license tax, shall pay to this state, to be credited to the sinking fund, an annual license tax based upon its authorized capital stock, as hereinafter provided."

Section 4189c, Ky. Stats., provides that the license tax required by the preceding section of a corporation shall be 50 cents upon each $1,000 of its authorized capital stock, or at least upon that part of the stock, which is represented by property owned, and business transacted, in this state. The foregoing statutes, together with their sections and provisions, became a law upon the second day of May, 1917. Upon the same day section 1, chapter 5, of Session Acts 1917, which is section 4214a, Ky. Stats., became a law. These acts were enacted by the General Assembly upon the same day, and therefore became laws and in force upon the same day after the termination of the General Assembly. The last-mentioned statute is as follows:

"Every corporation, association, company, copartnership or individual engaged in the business or occupation of manufacturing distilled spirits, known as whisky or brandy, or other species of such double stamp spirits in this state, and every owner or proprietor of a bonded warehouse in this state in which such spirits are stored, shall in addition to the taxes now imposed by law pay to the commonwealth of Kentucky a license tax of two cents on every proof gallon of said distilled spirits which is liable for tax to the federal government as shown by its official records and the amount of tax due the state shall be thereby fixed and measured by the state tax commission."

For the purpose of ascertaining the taxes imposed by the above statute, and collecting them, when due, the manufacturer is required to report to the auditor on the first day of January, May, and September of each year the quantity, in proof gallons, of the spirits on which the federal government tax has been paid, or has become due, or has been transferred under bond, or removed from the warehouse during the preceding four months, and shall, at the same time, pay the tax of 2 cents per gallon to the Treasurer through the auditor. If there is a failure to pay this tax within 15 days after it becomes due, a penalty of 8 per centum of the amount of the tax is imposed, and the auditor is directed to take the necessary proceedings for the collection of the taxes.

The appellee, E. H. Taylor, Jr., and Sons, made the first payment of the 2 cents per gallon taxes on the 25th day of July, 1917, and paid same at the proper periods thereafter. In the month of April, 1918, a deputy state revenue agent demanded of appellee to pay the license tax provided by section 4189a, supra, and which it thereafter paid.

It will be observed that section 4189a, supra, which imposes the license tax of 50 cents upon each $1,000 of the authorized capital stock of corporations, expressly exempts from the payment of the tax, "all corporations, which, under existing laws, are liable to pay a franchise or license tax." It may be conceded that the statute intended to exempt such corporations only as were liable to pay franchise or license taxes at the time section 4189a, supra, became a law. It and section 4214a, supra, having become laws upon the same day and at the same time, the appellee being a manufacturer of double stamp spirits, necessarily and inevitably was bound for the payment of the tax provided for by section 4214a at the time when section 4189a, supra, became a law.

As a general rule, the law takes no account of fractions of days, and in the absence of anything to show to the contrary it can only be concluded that, the two statutes being enacted upon the same day, and becoming effective as laws thereafter on the same day, they became in force at the same time.

Statutes enacted by the Legislature at the same session, upon the same subject, must be construed together, for the purpose of ascertaining the intention of the Legislature, which, after all, is the law, and the statutes are the expressions of it. The evident purpose of the Legislature, as indicated by the language of the statutes, was to impose, upon all corporations a license tax based upon their authorized capital stock, except such as it exempted from the operation of the statute, and its purpose to exempt those corporations upon which the law at the time imposed a franchise or license tax is just as evident.

Neither could it be concluded that the Legislature intended to impose two license taxes upon such corporations as the appellee, and a court would not be justified in construing a statute so as to impose double taxation, unless the terms of the statute require it. Merchants' Ice & C. S. Co. v. Commonwealth, 154 Ky. 453, 157 S.W. 717; Commonwealth v. Ledman, 127 Ky. 603, 106 S.W. 247, 32 Ky. Law Rep. 452. While the argument is made that its business is one which the public policy of the times seeks to restrict, there is nothing in section 4189a, supra, which would indicate that there was any corporation which was liable to pay a license or franchise tax, which was intended to be taken out of the exception in the statute. The tax imposed by section 4189a, supra, is simply and purely a license tax. It is neither a tax upon the property of a corporation nor upon the value of it, but is a license required for its right to do business in the state and its amount is in accordance with the volume of its authorized capital stock. Hillman Land & Iron Co. v. Commonwealth, 174 Ky. 759, 192 S.W. 880. The tax imposed by section 4214a, supra, is likewise a license tax. It is not a tax upon property, nor its value, but is a tax regulated, as to its amount, by the volume of business done by the corporation for the privilege of engaging in the business of manufacturing double stamp spirits, and is imposed by legislation which is authorized by section 181 of the Constitution. Raydure v. Board of Supervisors, 183 Ky. 84, 209 S.W. 19. Under other statutes, such corporations, as appellee, are required to pay an ad valorem tax upon the value of their property, and such tax, it is presumed, is the one referred to in section 4214a, supra, when the 2 cents per gallon tax is imposed in addition to the other taxes then imposed by law. The construction, which is here placed upon the two statutes, 4189a and 4214a, supra, tends to preserve that equality in taxation which the Constitution guarantees, and also enables force and effect to be given to the clauses of the different statutes, and prevents any repugnancy between them. Hence we conclude that appellee was liable for the license tax of 2 cents per gallon upon the spirits produced by it, as provided by section 4214a, supra, and not liable to the license tax provided by section 4189a, supra, and the payment of the last-mentioned tax was a payment of money or taxes into the treasury, when such taxes were not due.

(b) The corporation relies upon section 162, Ky. Stats., as giving it a right to maintain this action to compel the auditor by writ of mandamus to draw his warrant upon the treasurer, in its favor, for the amount of the tax paid when it was not due. The section of the statutes is as follows:

"When it shall appear to the auditor that money has been paid into the treasury for taxes when no such taxes

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