Casmus v. Lee

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, Justice. PER CURIAM.
• Citation: Casmus v. Lee, 236 Ala. 396, 183 So. 185 (Ala. 1938)
• Decision Date: 09 June 1938
• Docket Number: 3 Div. 264.
• Parties: CASMUS v. LEE, COMPTROLLER.

183 So. 185

236 Ala. 396

CASMUS v. LEE, COMPTROLLER.

3 Div. 264.

Supreme Court of Alabama

June 9, 1938

Rehearing Denied Sept. 6, 1938.

Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge.

Petition of Charles A. Casmus, doing business as Mint Vending Company for mandamus to Charles W. Lee, as State Comptroller, to require issuance of a warrant as a refund of license erroneously paid to the State Tax Commission. From a judgment for respondent, petitioner appeals.

Affirmed.

Clarence Mullins, Kenneth Perrine, and J. Howard Perdue, Jr., all of Birmingham, for appellant.

A. A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen for appellee.

GARDNER Justice.

Schedule 113 of the General Revenue Act of 1935 (General Acts 1935, pages 441, 486, § 348) reads as follows:

"Each raffle board, punch board, 'tip' board or raffle or chance card or ticket, by whatever name called, shall have securely pasted thereon a revenue tax of a denomination equivalent to ten per centum (10%) of the amount to be derived from the sale of all of the punches or tips thereon, and no tips or punches shall be detached from said boards or cards until after such stamps shall have been so affixed and cancelled. Such license tax stamps to be securely affixed to each of such boards and cancelled and the penalty for failure to so affix and cancel such stamps shall be governed by the provisions of Article XIII, Chapter 7, of this Act, and this Schedule shall be subject to all of the provisions of said Chapter as may be applicable hereto. Provided that none of the provisions herein will be taken as legalizing the operation of any such boards."

Petitioner, upon demand, paid the specified tax to the State Tax Commission. Subsequently, acting under the authority of General Acts 1931, page 527, he filed a request with the commission for a certificate to the State Comptroller to the effect the payment was made under a mistake of law in that the provision of law under which the same was collected was unconstitutional and void. The commission granted his request, and issued the certificate accordingly. The Comptroller declined, nevertheless, to issue a warrant therefor, and this mandamus proceeding followed.

Petitioner insists the certificate of the Tax Commission is final and conclusive and the issuance of the warrant by the State Comptroller is a mere ministerial duty, citing, among other authorities, Lovelady v. Loveman, Joseph & Loeb, 191 Ala. 96, 68 So. 48; Allgood v. Parker, 21 Ala.App. 273, 107 So. 326.

But these authorities were dealt with and distinguished from cases of this character in Blan v. Hollywood Realty Co., 218 Ala. 1, 118 So. 257, and the opinion in this latter case suffices to demonstrate in this that the statute here under review providing for a refund is not properly to be construed as requiring the acceptance of the opinion of the Tax Commission on the constitutionality of a law as final and conclusive, and as foregoing a consideration thereof by the courts. We feel that upon this question the citation of the Blan Case, supra, is sufficient without further elaboration.

Petitioner notes Singer Sewing Machine Co. v. Teasley, 198 Ala. 673, 73 So. 969, and Smith v. Tennessee Coal, Iron & R. Co., 192 Ala. 129, 68 So. 865, construing, as he insists, statutes of a similar nature and wording as that contained in the Act of 1931, under which he brings this proceeding; and insists that a payment under protest or an involuntary payment was not a condition precedent to the recovery of the tax paid.

The question of prime importance on this appeal relates to the constitutionality of Schedule 113 of the Revenue Act, and is one of general public interest.

Our conclusion is that the Act is valid. We may concede, therefore, without stopping to inquire and decide, that an involuntary payment was not a condition precedent, and pass to the meritorious questions in the case.

Petitioner relies upon section 65 of our State Constitution to the effect that "the legislature shall have no power to authorize lotteries or gift enterprises for any purposes, and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery."

Admittedly, the punchboards handled by petitioner came within the condemnation of the Act of 1931 (General Acts 1931, page 806), which was passed in harmony with the above noted section of our Constitution. A discussion of this Act and said section 65 of the Constitution is found in the recent case of Try-Me Bottling Co. v. State, 235 Ala. 207, 178 So. 231, and needs no reiteration here.

Petitioner was, therefore, engaged in an unlawful business, and insists that the tax paid was a license tax authorizing that which was prohibited by section 65 of the Constitution, and, of consequence, Schedule 113 is void.

The authorities, in large part, upon which reliance is had, are illustrated by our case of City of Tuscaloosa v. Hanly, 227 Ala. 513, 150 So. 499. But this case, as well as others of like character noted (Hewlett v. Camp, 115 Ala. 499, 22 So. 137; Loiseau v. State, 114 Ala. 34, 22 So. 138, 62 Am.St.Rep. 84; San Antonio v. Schneider, Tex.Civ.App., 37 S.W. 767; State v. Lindsay, 34 Ark. 372), rest upon the familiar principle that legislation permitted to be exercised by municipalities is a mere delegation of the power of the State, and of consequence such legislation must be consistent with the laws, and is not to infringe upon the spirit or be repugnant to the policy of the State as declared in its general legislation.

But these authorities are inapplicable to the question of the power of the State legislature in the passage of laws which is paramount unless restrained by some constitutional provision, either State or Federal. This distinction is well noted in the text to 37 Corpus Juris 216, with citation of apt authorities, wherein it is said: "A municipality cannot license a business which is prohibited by the common or statute laws of the state. But the fact that a business is unlawful, and a license cannot be issued or obtained, authorizing it, does not prevent the imposing and collection of a tax upon such business from a person engaged therein." And in 4 Cooley's Taxation (4th ed.) section 1689, is a like statement that, "it is no defense to an action to collect a privilege tax that the business upon which the tax is assessed is illegal." See, also, Cooley's Constitutional Limitations (5th ed.) page 721.

Perhaps the most lucid and convincing discussion of the question is found in Youngblood v. Sexton, 32 Mich. 406, 20 Am.Rep. 654, in an opinion by Judge Cooley, the well known author of the above noted text-books. That case is here much in point. The Constitution of Michigan declared that "the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors." The legislature nevertheless assessed a tax on dealers in liquors, who challenged the constitutional right of the legislature to impose it. The opinion states the question in the following manner:

"The objection which appears to be principally relied upon is, that a tax on the traffic in liquors under this law is equivalent to a license of the traffic, and therefore comes directly in conflict with that provision of the constitution which declares that 'the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors."

And the following excerpts from this authority will suffice to give the drift of the reasoning of the author and the conclusion which follows. The opinion proceeds:

"Does, then, a tax upon the traffic in liquors come within the condemnation of this provision of the constitution, as being equivalent to a license of the traffic? Is it

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