Haden v. Lee's Mobile Homes, Inc.

• Citation: 41 Ala.App. 376,136 So.2d 912
• Decision Date: 27 June 1961
• Docket Number: 3 Div. 68
• Court: Alabama Court of Appeals
• Parties: Harry HADEN, Commissioner of Revenue, v. LEE'S MOBILE HOMES, INC.

Page 912

136 So.2d 912

41 Ala.App. 376

Harry HADEN, Commissioner of Revenue, v. LEE'S MOBILE HOMES, INC.

3 Div. 68.

Court of Appeals of Alabama.

June 27, 1961.

Rehearing Granted Aug. 15, 1961.

Further Rehearing Denied Sept. 12, 1961.

MacDonald Gallion, Atty. Gen., Guy Sparks, Sp. Asst. Atty. Gen., and Wm. H. Burton, Asst. Atty. Gen., for appellant.

Peyton D. Bibb, Graham, Bibb, Wingo & Foster, Birmingham, for appellee.

HARWOOD, Presiding Judge.

Upon reconsideration of this cause on application for rehearing, we have concluded that the original opinion and judgment should be withdrawn and the following substituted in its stead.

As stated in appellee's brief, 'This is a suit appropriately filed under the provisions of Section 890, Title 51 of the Code * * *' and concerns the question of whether 'house trailers' are subject to a sales tax at rate of 3%, the rate of tax provided for the sale of personal property, or whether such sales should be taxed at a rate of 1 1/2%, which is the rate fixed in the Sales Tax Act of 1959 (Act No. 100, Special Session 1959, Acts of Alabama 1959, Vol. 1, pages 298 and 303).

The Sales Tax Act of 1959, supra, reenacted section by section, the substance of the then existing sales tax provisions of earlier Acts as embodied in Sec. 752 et seq., Tit. 51 of Alabama Code of 1940, and in virtually identical language.

The section of the Sales Tax Act of 1959 with which we are now concerned is Section 2(d) of Act 100, being as follows:

'Upon every person, firm or corporation engaged or continuing within this state in the business of selling at retail any automotive vehicle or truck trailer and semi-trailer, an amount equal to one and one-half percent of the gross proceeds of the sale of said automotive vehicle or truck trailer and semi-trailer.'

In the proceedings below a stipulation of facts was entered into between the respective parties. This stipulation shows that Harry Haden, purporting to act under the color of his office as Commissioner of Revenue of the State of Alabama, and by virtue of the statutes and Acts of Alabama imposing a sales tax upon the sales of tangible personal property, levied a tax upon the appellee which he described as additional sales taxes, which he asserted to be due and payable at the rate of 3% upon the sales of house trailers sold by the plaintiff during the period of October 1, 1959 to and including March 31, 1960, which additional sales tax was in the amount of $618.35.

It was further stipulated that said amount of additional tax was paid by the plaintiff below under protest, and that the defendant below, acting in his official capacity, received the additional tax paid under protest.

After a hearing below the court entered a 'Findings and Judgment.' In his findings the court below found that:

'* * * House trailers of the type and kind sold by plaintiff, and by dealers in Alabama generally, are designed and constructed with electric power and water connections, wiring and piping. While they are widely sold equipped as living quarters, the same house trailers are used for a multiplicity of other purposes such as sales offices, contractor's field offices, mobile sales rooms for display and sale of appliances and merchandise, separately or in combination with living quarters, and as mobile tool houses, kitchens and living quarters for railroad maintenance crews. The same body or shell may be readily converted from one use to another by changing the movable equipment within it. When these vehicles are moved upon the highways tangible personal property or merchandise of one kind or another is carried in them. They may also remain in stationary use for many months as a time.'

Under 'Conclusions of Law' the court found as follows:

'1. The provisions of Act No. 100, Second Special Session, 1959, Acts 1959 page 298, which, as here material, re-enacted the Sales Tax statutes as theretofore existing and as embodied in Sections 752 et seq., Article 10 of Title 51, Alabama Code of 1940, as amended, did not have the effect of changing either the classification or definition of house trailers for the purpose of the tax upon the sales of tangible personal property therein levied. Such Act No. 100 contains no definition of the term 'truck trailer and semitrailer' as therein used. It uses the same language theretofore employed in the sales tax statutes dealing with that category and classification of property. Vehicles of the type here involved, as shown by the evidence, are clearly within the category of property described as 'truck trailer or semi-trailer' by Section 2(d) of such Act No. 100 and are subject to the rate of tax and method of calculation as therein provided. State v. Maddox Tractor and Equipment Co., 260 Ala. 136, 69 So.2d 426); Act No. 744, General Acts of Alabama, 1953, p. 1007.

'2. At and prior to the time of enactment of such Act No. 100 the general system and policy of the sales tax law regarding the tax classification and status of house trailers was as indicated in Act No. 744, General Acts 1953 p. 1007, which expressly declared that the words, term and phrase 'truck tailer and semi-trailer' when used in the sales tax statutes 'shall include house trailers' and that house trailers should be subject in every respect to the same tax, etc., as truck trailers and semi-trailers. Act No. 100 did not either expressly or by necessary implication work any change in this status of affairs. Daniel Construction Company v. Pierce, Ala. , 120 So.2d 381; Opinion of the Justices, 253 Ala. 111, 43 So.2d 3; American [Standard] Life Insurance Co. v. State, 147 So. 168, 226 Ala. 383; City of Birmingham v. Southern Express Company, 164 Ala. 529, 51 So. 159.

'3. The plaintiff's sales of house trailers here involved were properly subject to the sales tax at the rate of one and one-half per cent (1 1/2%) and to be calculated in the manner provided by Sec. 2(d) of such Act No. 100. The additional sum of $629.31 demanded and collected from plaintiff was in excess of the amount of sales taxes lawfully due to be paid by it and plaintiff is entitled to a judgment for the recovery of such sum.'

After these findings, and under a separate paragraph headed 'Judgment' the court then entered the following judgment:

'Wherefore, It Is Considered, Ordered And Adjudged by the Court that the Plaintiff, Lee's Mobile Homes, Inc., have and recover of the defendant, Harry Haden, individually and in his official capacity as Commissioner of Revenue of the State of Alabama, the sum of Six Hundred Twenty-nine and 31/100 Dollars (629.31), together with costs of court herein incurred and for all of which execution may issue.

'Done And Ordered, this the 19 day of October, 1960.'

Sections 890 and 891, Tit. 51, Code of Alabama 1940, as amended, provides for the payment of taxes paid under protest and the filing of a suit to recover the taxes so paid, and the disposition and handling of monies realized from taxes paid under protest, and for the return of such monies to the taxpayer if it be judicially determined that such taxes were wrongfully collected.

The remedy contemplated by Sections 890 and 891, supra, is in the nature of a declaratory judgment. Glass v. Prudential Ins. Co., 246 Ala. 579, 22 So.2d 13, 18. Moreover, Sections 890 and 891, supra, authorizing a suit against a taxing official indicates that a declaration of rights rather than a money judgment against a taxing official is the remedy contemplated by these sections.

Therefore, the power of the court to determine the right of a taxpayer to refund of taxes paid under protest, is governed by Sections 890 and 891, supra. We do not think that under this statutory authority the court below could properly render a personal judgment against the Commissioner of Revenue, either in his official capacity or against him personally, for the recovery of the taxes paid under protest. In fact, in the Glass case, supra, the court stated:

'If the tax is determined to be invalid, complainant would have been entitled to his refund. There is no judgment rendered against the State or against the officer collecting the money. It is in substance and effect a declaratory judgment, which was declared available to the taxpayer in the Curry case.'

It is to be noted that in Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479, 481, the court observed that the effect of Section 14, Constitution of Alabama 1901, 'prohibits a personal action against the State Tax Commission to recover money paid as a license tax under protest. Raible Co. v. State Tax Commission, 239 Ala. 41, 194 So. 560.'

It is apparent therefore that the 'Judgment' entered at the conclusion of the court's findings was erroneous. While at first we thought that the judgment was void, we have now concluded that such judgments is only invalid and erroneous, in light of Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46, and therefore will support an appeal.

In view of the fact that the proceedings below were before the court without a jury, and insofar as the provisions of the 1959 Sales Tax Act levying a sales tax of one and one-half percent upon the sales of automotive vehicles or truck trailer or semitrailer is concerned, was submitted upon stipulated facts which are entirely sufficient to have supported a proper judgment, we feel that the matter now before us is well within the influence of Section 810, Tit. 7, Code of Alabama 1940, to the effect that this court may, 'Render such judgment or decree as the court below should have rendered, when the record enables it to do so.'

In Deas v. Garrett & Mason, 16 Ala.App. 572, 80 So. 146, it was held that the failure of the judgment to follow the verdict in respect to ascertainment of the alternate value separately, of each article of property embraced therein, is an error which may be corrected from the data afforded by the record. It is clear from the record now before us under the pleadings and stipulated facts and the finding...