Barnes v. Moragne

• Decision Date: 06 July 1906
• Citation: 145 Ala. 313,41 So. 947
• Parties: BARNES v. MORAGNE.
• Court: Alabama Supreme Court

41 So. 947

145 Ala. 313

BARNES v. MORAGNE.

Supreme Court of Alabama

July 6, 1906

Appeal from City Court of Gadsden; John H. Dissque, Judge.

"To be officially reported."

Action by Fannie L. Moragne against Adam H. Barnes. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action for money had and received, begun by appellee against appellant, as tax collector of Etowah county, seeking to recover taxes assessed against and paid by appellee under protest to appellant as such collector. The facts are that Fannie L. Moragne had upon record in the probate office a certain mortgage for the sum of $6,000, of date June 4, 1900 and due June 4, 1905, upon which the tax assessor of Etowah county levied an ad valorem tax, which the said bonds require to be paid; at the same time executing a receipt showing that the ad valorem tax was paid under protest, and after levy upon the personal property of the said Fannie L. Moragne, for the purpose of selling the same for the enforcement of the taxes on said mortgage--said Fannie L. Moragne insisting that said mortgage was not the subject of taxation, and giving notice at the time of the payment, and that she would bring suit against the collector for the recovery of the amount paid. It was further shown that taxes had been paid on this mortgage up to and including the year 1903. There was judgment for plaintiff, and the tax collector appealed.

Weakley C.J., and Dowdell and Denson, JJ., dissenting.

Massey Wilson, Atty. Gen., for appellant.

Goodhue & Blackwood, for appellee.

TYSON J.

The only question presented for consideration in this case is whether the provision of the act of 1903, imposing a privilege tax on recorded mortgages (Gen. Acts 1903, p. 227) had the effect of exempting "all moneyed capital; that is, all money lent, solvent credits, or other credits of value," etc., from taxation for revenue purposes. Prior to the passage of this act this species of property was expressly made the subject of taxation by the imposition of an ad valorem tax levied annually of 55 cents on each hundred dollars in value. Section 3911 of the Code of 1896, and subdivision 7 thereof. The act of 1903 is entitled "An act, to better provide for the revenue of the state," and deals with a number of subjects of taxation which are covered by fourteen subdivisions of section 3911 of the Code of 1896. And indeed, it cannot be doubted that subdivisions 4, 5, and 9 are repealed by the act, since the subject-matters contained in them are fully revised by the later act. In other words, it is entirely clear that the provisions of the later act relative to those subdivisions were intended to be a substitute for them. It is true that the act of 1903, in amending subdivision 7, does not revise the whole of the subject-matter of that subsection, nor does it in express terms repeal it. In fact, it only provides for a "privilege tax" on recorded mortgages, once for the life of the mortgage, which is in no sense an ad valorem tax. And clearly if no mention of subdivision 7 had been made or the provisions of the act had been enacted by an independent act with no express words of repeal of that subsection, that subsection would not have been repealed by it, since it could not be held to be a revision of it, in such sense as to repeal it by implication. But the language of the act of 1903 expressly amends subsection 7, and makes the "privilege tax" on recorded mortgages and other instruments a substitute, in so far as such mortgages are concerned, for the ad valorem tax imposed upon them by section 3911 and that subsection. To see that this is true we need only quote the following language: "That subdivision 7 of section 3911 of the Code of 1896, be amended, and the same is hereby amended so as to read as follows: * * * There shall be no other tax collected upon any such instrument which shall have paid the tax prescribed in this act, either state, county, or...