City of Birmingham v. State ex rel. Carmichael, 6 Div. 968

• Citation: 233 Ala. 138,170 So. 64
• Decision Date: 30 June 1936
• Docket Number: 6 Div. 968
• Parties: CITY OF BIRMINGHAM v. STATE ex rel. CARMICHAEL, Atty. Gen.
• Court: Alabama Supreme Court

170 So. 64

233 Ala. 138

CITY OF BIRMINGHAM v. STATE ex rel. CARMICHAEL, Atty. Gen.

6 Div. 968

Supreme Court of Alabama

June 30, 1936

Rehearing Denied Oct. 29, 1936

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Action by the State, on the relation of Albert A. Carmichael Attorney General, against the City of Birmingham, to recover gasoline tax. Judgment for plaintiff, and defendant appeals.

Affirmed.

GARDNER and THOMAS, JJ., dissenting on rehearing.

W.J Wynn, J.H. Willis, and Clarence Mullins, all of Birmingham for appellant.

A.A Carmichael, Atty. Gen., Matt H. Murphy, Sp. Asst. Atty. Gen., and Thos. J. Judge, of Birmingham, for the State.

FOSTER, Justice.

This is an action by the state against the city of Birmingham for the collection of the gasoline tax provided for by the Act of July 10, 1935 (Gen.Acts 1935, pp. 441, 508, § 348, Schedule 156 et seq.), alleging that defendant purchased the gasoline without the state and shipped it into the state in tank cars and was received by defendant in Jefferson county, Ala., and there transferred to storage tanks of defendant, and was owned and stored by defendant for consumption in this state, and was from time to time withdrawn by defendant for municipal and governmental uses in various quantities.

Demurrers to the complaint were overruled, and defendant declined to plead further, whereupon judgment was rendered for plaintiff. Defendant appeals and assigns as error the judgment overruling the demurrer.

The chief argument is that the act in question is in violation of section 91, Constitution. It imposes the tax on the persons named and expressly defines persons as including municipal corporations.

We had occasion previously to consider the question of whether they were intended to be included in previous acts in which they were not named, and applied the general rule that a tax levy in general terms and without clearly indicating that municipal corporations were intended to be included did not include them. State v. City of Montgomery, 228 Ala. 93, 151 So. 856.

The act of 1935, supra (Gen.Acts 1935, p. 256), was evidently intended to make it clear that they were included. There is now no such question as then existed, but it is contended that the act as amended imposes a tax on the property of municipal corporations in violation of section 91, Constitution. It provides that "the legislature shall not tax the property, real or personal, of the state, counties, or other municipal corporations." It is not levied in proportion to the value of the gasoline, and if it is a property tax it also violates section 211, and perhaps other provisions of the Constitution. But section 211, Constitution, has been held to relate only to direct taxes on property and not to privileges or excises. Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627, 72 Am.St.Rep. 143.

Undoubtedly section 91, Constitution, prohibits a direct tax on the property of cities. It is argued first that the gasoline tax is such a direct property tax, and, second, that section 91, Constitution, should be interpreted to prohibit any other sort of tax, since to tax is to impose a personal liability upon the city, and thereby to take its property, to wit, money, and that it is not important whether its extent is measured by the value of some of its property or the amount of it and the manner in which it is handled, though in one instance it is set up as a direct tax and in the other as an excise.

That the tax is an excise was affirmed in the case of State v. City of Montgomery, supra. But it is urged that the discussion in that case was not necessary to its decision, was dictum, and erroneous, and should be disregarded here where it is directly involved. True, it was there only incidental to the point on which that case turned. But we think it was there correctly held that a "storer" of gasoline within the terms of the act is taxable for that privilege. It has been uniformly held that such a tax is not a direct property tax. Graves, Governor, v. Texas Co., 298 U.S. 393, 56 S.Ct. 818, 80 L.Ed. 1236; Ervin v. Alabama (C.C.A. 5th) 80 F. (2d) 432; Pan American Petroleum Corporation v. Alabama (C.C.A. 5th) 67 F. (2d) 590; Edelman v. Boeing Air Transport, 289 U.S. 249, 53 S.Ct. 591, 77 L.Ed. 1155; Nashville, C. & St.L.Ry. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191; Sheip & Co. v. Amos, 100 Fla. 863, 130 So. 699; Foster & Creighton Co. v. Graham, 154 Tenn. 412, 285 S.W. 570, 47 A.L.R. 971; 84 A.L.R. 866; People v. City and County of Denver, 84 Colo. 576, 272 P. 629; Standard Oil Co. v. State, 218 Ala. 243, 118 So. 281.

A property tax is laid upon the property, although its owner is due to pay it. The state gasoline tax in question is not laid on the property, but on the privilege of its storage, and that regardless of ownership, and the amount is measured by the gallons withdrawn from storage. The amount of the tax does not fluctuate as the price of gasoline changes.

It is an imposition upon the privilege of storing in the state a dangerous commodity not laid on the property, but on the privilege. The distinction has been too long sustained to be led off by the specious argument that they are both essentially laid on the person, but measured by different formulas. An illustration is where a tax is imposed on a corporation graduated by the amount of paid-up capital stock, without regard to its value. It is an excise tax. Phoenix Carpet Co. v. State, supra, 118 Ala. 143, at page 151, 22 So. 627, 72 Am.St.Rep. 143; Southern Car & Foundry Co. v. State, 133 Ala. 624, 32 So. 235. And when measured by the number of cows in a dairy (Mayor and Aldermen of Birmingham v. Goldstein, 151 Ala. 473, 478, 44 So. 113, 12 L.R.A. (N.S.) 568, 125 Am.St.Rep. 33), Goldsmith v. Mayor, etc., of Huntsville,

120 Ala. 182, 24 So. 509; Standard Oil Co. v. State, 218 Ala. 243, 118 So. 281), and the tobacco tax (Exchange Drug Co. v. State Tax Commission, 218 Ala. 115, 117 So. 673), and the severance tax (Republic Iron & Steel Co. v. State, 204 Ala. 469, 86 So. 65).

It is our judgment that section 91, Constitution, was only intended to prohibit a direct tax on property, which is an ad valorem tax. We do not think a fine spun technical construction should be so applied as to exclude all forms of taxation against cities and counties.

We pointed out in State v. City of Montgomery, supra, that, except as restrained by the Constitution, the State Legislature may tax cities as other persons. There are only two factors necessary to include them--that it has been done by clear intention, and that it is not restricted by the Constitution in respect to the imposition of the tax as laid by the Legislature. Many cases are cited in 61 Corpus Juris, 368 et seq., and 419 et seq. We also in that opinion cited many cases showing that it is generally held that the state may impose on cities such a tax as that now under consideration.

It is not a burden upon interstate commerce under the facts recited in the complaint in this case. Ervin v. Alabama, supra; Pan American Petroleum Corporation v. Alabama, supra; Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S.Ct. 631, 76 L.Ed. 1232, 84 A.L.R. 831; Nashville, C. & St.L.Ry. Co. v. Wallace, supra.

It is our opinion that the tax does not violate section 91, Constitution, nor burden interstate commerce, and is within the power of the Legislature in so far as any question is here raised and argued.

Affirmed.

ANDERSON, C.J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.

PER CURIAM.

Application for rehearing overruled.

ANDERSON, C.J., and BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur.

GARDNER and THOMAS, JJ., dissent.

GARDNER Justice (dissenting).

That the gasoline, the withdrawal of which from storage is here made the subject of taxation, is the property of the city, and necessary for use in the exercise of its governmental functions, appears as an uncontroverted fact. I agree that the tax here involved is an excise, as distinguished from an ad valorem tax. State v. City of Montgomery, 228 Ala. 93, 151 So. 856; Graves v. Texas Co., 298 U.S. 393, 56 S.Ct. 818, 80 L.Ed. 1236.

And, as stated in the opinion by Mr. Justice FOSTER, the statute now before us is sufficiently definite as to embrace municipalities within its influence and subject to the tax. State v. City of Montgomery, supra; 60 A.L.R. 878.

The important question, therefore, relates to the proper construction of section 91 of our State Constitution, which, in so far as here pertinent, reads: "The legislature shall not tax the property, real or personal, of *** municipal corporations." The opinion rendered interprets this language as prohibiting an ad valorem tax on real and personal property of the city, and nothing more.

I am persuaded this interpretation is too restrictive, and that it should be given broader effect in harmony with the evident intent of the makers of our Constitution. And in this connection it is well to bear in mind the rule here well established that "Constitutions usually deal with larger topics and are couched in broader phrase than legislative acts; hence their just interpretation is not always reached by the application of similar methods. *** 'A Constitution is not to receive a technical construction, like a common-law instrument, or statute.' " Realty Investment Co. v. City of Mobile, 181 Ala. 184, 61 So. 248 249, "Narrow or literal constructions are not indulged except in favor of elemental rights or settled principles of republican government." Bouchelle v. State Highway Commission, 211 Ala. 474, 100 So. 884. The purpose of the Constitution should be kept in mind (Tommie v. City of Gadsden, 229 Ala. 521, 158 So. 763), and "a...