Bigbee Fertilizer Co. v. Smith

• Decision Date: 20 January 1914
• Docket Number: 101
• Citation: 65 So. 37,186 Ala. 552
• Parties: BIGBEE FERTILIZER CO. v. SMITH, State Auditor.
• Court: Alabama Supreme Court

65 So. 37

186 Ala. 552

BIGBEE FERTILIZER CO. v. SMITH, State Auditor.

No. 101

Supreme Court of Alabama

January 20, 1914

Rehearing Denied April 16, 1914

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Mandamus by the Bigbee Fertilizer Company against C.B. Smith, as State Auditor. Writ denied, and petitioner appeals. Reversed and remanded.

The petition alleges that petitioner is a corporation organized for the purpose of manufacturing fertilizer and selling same and that under the provisions of subdivision 41, § 2361, Code 1907, it paid to the probate judge of Montgomery county Ala., for the years 1908, 1909, and 1910, the sum of $200 for state purposes, and $50 for county purposes; that under the provisions of subsection 26 of section 2361, all corporations doing business in the state not otherwise specifically required to pay a license tax are required annually to pay the privilege tax mentioned in said subsection, the same being based upon the amount of the capital stock of said corporation, and that, although petitioner during the years 1908, 1909, and 1910, paid the sum required as license for operating a fertilizer factory, the sum of $200 for the state and $50 for the county as a license for operating such factory under subsection 41, the judge of probate also demanded and required, during said years above set out, that petitioner pay the corporation license under subsection 26 and accordingly your petitioner paid the judge of probate $200 during each of said years for the use of the state and $50 during each of said years for the county to procure a license for such years for doing business, as required by section 26, but that the amount so paid during each of said years, was paid to said judge of probate under a mistake or error of said judge of probate, and petitioner is entitled to have said amount so erroneously collected by the judge of probate refunded to it under section 2411, Code 1907, as amended by the act approved August 25, 1909. "Petitioner further alleges that, pursuant to the provisions of section 2412, it made application to the judge of probate for a certificate under said section, and the judge of probate issued to your petitioner two certificates which are set out and marked Exhibits A and B." It is then alleged that the certificates were presented to the auditor, and he declined to pay them, or to recognize them as binding on the state. The certificates referred to are as follows: "To the Honorable W.W. Brandon, State Auditor. To the Honorable Court of County Commissioners of Montgomery County. The application of Bigbee Fertilizer Company having been presented and considered, I hereby certify that the said Bigbee Fertilizer Company paid into this office, as a privilege tax, under subsection 26 of section 2361, Code 1907, required by said section of domestic corporations doing business in this state, not otherwise specifically required to pay a license tax, the following sums: In 1908, for the state, two hundred dollars; for the county, fifty dollars; in 1909, for the state, two hundred dollars; for the county, fifty dollars; in 1910, for the state, two hundred dollars; for the county, fifty dollars. That in addition thereto, it paid the following sums as a license tax specifically required by subsection 41 of said section 2361 of the Code of 1907: For the year 1908, for the state, two hundred dollars; for the county, _______ dollars; for the year 1909, for the state, two hundred dollars; for the county fifty dollars; for the year 1910, for the state, two hundred dollars; for the county, fifty dollars. That the above sums paid during each of said years 1908, 1909, 1910, as a privilege tax, were paid by said Bigbee Fertilizer Company, through error, it having paid in each of said years a license tax specifically required of it, and that said sums paid as a privilege tax are due to the said Bigbee Fertilizer Co. Witness my hand and seal of office this _______ day of July, 1910. J.B. Gaston, Judge of Probate."

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