Allgood v. Sloss-Sheffield Steel & Iron Co., 3 Div. 207

• Court: Supreme Court of Alabama
• Writing for the Court: SOMERVILLE, J.
• Citation: 71 So. 724,196 Ala. 500
• Parties: ALLGOOD, State Auditor, v. SLOSS-SHEFFIELD STEEL & IRON CO.
• Docket Number: 3 Div. 207
• Decision Date: 20 April 1916

71 So. 724

196 Ala. 500

ALLGOOD, State Auditor, v. SLOSS-SHEFFIELD STEEL & IRON CO.

3 Div. 207

Supreme Court of Alabama

April 20, 1916

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Mandamus by the Sloss-Sheffield Steel & Iron Company originally directed to C. Brooks Smith, as State Auditor, and revived against M.C. Allgood, as his successor in office, to compel him to issue his warrant to certain license taxes paid into the state treasury under an act declared unconstitutional and void. From a judgment granting the writ, the Auditor appeals. Affirmed.

W.L Martin, Atty. Gen., for appellant.

Tillman Bradley & Morrow, of Birmingham, and Steiner, Crum & Weil, of Montgomery, for appellee.

SOMERVILLE J.

The following principles of statutory construction must be regarded as thoroughly well settled, both upon the soundest reasoning and the highest authority:

1. "Where an amendment is made that changes the old law in its substantial provisions, it must, by a necessary implication, repeal the old law so far as they are in conflict. And where a new law, whether it be in the form of an amendment or otherwise, covers the whole subject-matter of the former, and is inconsistent with it, and evidently intended to supersede and take the place of it, it repeals the old law by implication." 36 Cyc. 1082 (D); Scott v. Simons, 70 Ala. 352; Ogbourne v. Ogbourne, 60 Ala. 616; Cahall v. Citizens' etc Ass'n, 61 Ala. 232; Lemay v. Walker, 62 Ala. 39.

2. "Generally speaking, where a statute is amended 'so as to read as follows,' the amendatory act becomes a substitute for the original, which then ceases to have the force and effect of an independent enactment; but this does not mean that the original is abrogated for all purposes, or that everything in the later statute is to be regarded as first enacted therein. On the contrary, the better and prevailing rule is that so much of the original as is repeated in the later statute without substantial change is affirmed and continued in force without interruption; that so much of the act as is omitted is repealed; and that any substantial change in other portions of the original act, as also any matter which is entirely new, is operative as new legislation." 36 Cyc. 1083 (2); O'Rear v. Jackson, 124 Ala. 298, 26 So. 944; In re Estate of Prime, 136 N.Y. 347, 32 N.E. 1091, 18 L.R.A. 713; Moore v. Mausert, 49 N.Y. 332; Pacific, etc., Co. v. Joliffe, 69 U.S. 450, 17 L.Ed. 805; Murdock v. Memphis, 20 Wall. 590, 617, 22 L.Ed. 429; Bear Lake, etc., Co. v. Garland, 164 U.S. 1, 17 Sup.Ct. 7, 41 L.Ed. 327; Great Northern Ry. Co. v. United States, 155 F. 945, 84 C.C.A. 93, affirmed in 208 U.S. 452, 28 Sup.Ct. 313, 52 L.Ed. 567, citing many other cases.

3. "The repeal and simultaneous re-enactment of substantially the same statutory provisions is to be construed, not as implied repeal of the original statute, but as a continuation thereof." 36 Cyc. 1084 (E); Endlich on Statutes,§ 490; Sutherland on Stat. Construction, § 134; Forbes v. Board of Health, 27 Fla. 189, 9 So. 446, 26 Am.St.Rep. 63; Brown v. Pinkerton, 95 Minn. 153, 103 N.W. 897, 900, 111 Am.St.Rep. 448; Haspel v. O'Brien, 218 Pa. 146, 67 A. 123, 11 Ann.Cas. 470, and note 472; White, etc., Co. v. Harris, 252 Ill. 361, 96 N.E. 857, Ann.Cas. 1912D, 536.

Section 2411 of the Code of 1907 provided for a refund of a proportionate part of the license tax paid for conducting a business afterwards prohibited by law. This statute was expressly amended by the act of August 25, 1909 (Sess.Acts 1909, p. 166), which re-enacted verbatim the original statute, and added the following:

"And any person who, through a mistake or error in the probate judge, has paid to the probate judge money that was not due from him for such license, or by such mistake has paid to the probate judge for such license an amount in excess of that required by law for the business to be carried on by such person under the license, such person shall be entitled to have refunded to him the amount in either event so erroneously collected by the probate judge, and the provisions of this section shall apply in cases where money has heretofore been so erroneously paid within two years before the approval of this act."

In October of each of the years 1907, 1908, and 1909 the petitioner paid to the probate judge of Jefferson county certain sums of money as privilege taxes, under the revenue act of March 7, 1907 (Acts 1907, p. 455), which was unconstitutional and void. Thereafter by the act of February 22, 1915 (Sess.Acts 1915, p. 120), the Legislature again amended section 2411 of the Code, as already amended, by re-enacting the amended statute verbatim, and added thereto a provision requiring the probate judge himself to refund license money paid for conducting a business afterwards prohibited before the probate judge has paid over such money to the state authorities. Later on in the same session, by the act of September 14, 1915 (Sess.Acts 1915, pp. 489-533) the Legislature passed a general revenue bill which re-enacted verbatim the amendatory act of August 25, 1909, as section 15 thereof, and re-enacted also verbatim section 2412 of the Code as section 16 thereof without reference in either case to the original statute.

It will be observed that the limitation of the statute as amended in 1909 to license money "paid within two years before the approval of this act" that is, two years prior to August 25, 1909, is carried forward ipsis verbis into the amended statute of February 22, 1915, and also into the general revision of the revenue laws by the act of September 14, 1915. The contention of the respondent is that the use of this original clause in each of the two last-named acts is effective ex vi terminorum to initiate a new period of limitation, that is, a period of two years before the approval of each act thereby nullifying the operation of the law as to all erroneous payments made prior thereto. Of the character and policy of this refund statute this court has said:

"It is the successor of preceding statutes having a common object--the promotion of justice and equity between the state and county and the taxpayer. If by mistake, whether of law or of fact, the state or county has, through the medium of taxation, received money of the taxpayer to which it was not entitled ex aequo et bono, it is but natural right and justice that the mistake should be corrected and the money refunded." White v. Smith, 117 Ala. 232, 23 So. 525; Bigbee, etc., Co. v. Smith, 186 Ala. 552, 65 So. 37.

This just policy has been steadily expounded by successive acts of legislation.

The limitation of its operation when first applied to license...