Hattemer v. State Tax Commission

• Decision Date: 18 November 1937
• Docket Number: 3 Div. 226
• Citation: 235 Ala. 44,177 So. 156
• Parties: HATTEMER v. STATE TAX COMMISSION.
• Court: Alabama Supreme Court

177 So. 156

235 Ala. 44

HATTEMER v. STATE TAX COMMISSION.

3 Div. 226

Supreme Court of Alabama

November 18, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill for declaratory judgment by H.L. Hattemer, doing business as Dixie Coal Company, against the State Tax Commission. From a decree for respondent, complainant appeals.

Affirmed.

Mooneyham & Mooneyham, of Montgomery, and W.H. Sadler, Jr., of Birmingham, for appellant.

A.A Carmichael, Atty. Gen., Wm. H. Loeb, Asst. Atty. Gen., L.H Ellis, of Columbiana, H.L. Anderton, of Birmingham, and E.C. Boswell, of Geneva, for appellee.

GARDNER Justice.

Complainant is a retail dealer in coal, and seeks a declaratory judgment of his nonliability to the payment of the privilege or license tax imposed under the provisions of the Sales Tax Revenue Act of February 1937 (Acts 1936-1937, Special Session, p. 125), and from an adverse ruling in the court below prosecutes this appeal.

If the decision of the chancellor is to be overturned, such result must rest upon the exemption feature of the statute as found in section 4 thereof (page 128). This for the reason that undisputedly the coal sold by complainant is tangible personal property, and his business as a retail dealer in coal comes squarely within the influence of section 2 of the act (page 126) imposing this tax "upon every person, firm or corporation engaged or continuing within this State in business of selling at retail any tangible personal property whatsoever."

The sole question therefore for determination here is whether or not complainant is exempt from the tax by reason of said section 4, which so far as here pertinent reads as follows: "Provided, however, that for the purpose of determining the amount of the license or privilege tax due by any person, firm or corporation under the provision of this act there shall be deducted from the gross sales or gross receipts of such person, firm or corporation, amounts received from the business on which or for engaging in which a license or privilege tax is levied by or under the provisions of Sections 140, 141, 142, 143, 145, 146, and 147, and Schedule 91 of Section 348, Schedule 92 of Section 348, section 149, and Schedule 159 of Section 348 of an Act approved July 10, 1935, and entitled 'An Act to provide for the general revenue of the State of Alabama.' "

Schedule 91 of section 348 (Gen.Acts 1935, p. 475), referred to in the above-noted excerpt, reads in part as follows: "Every person engaged in the business of operating a coal mine in the State of Alabama, shall pay to the State *** an amount equal to two and one-half cents (2 1/2c) per ton on all coal mined."

The amended bill recites the depressed condition of the coal business in this state, and its great decline in volume during recent years, the adverse factors contributing thereto, as competition from other fuels such as gas, oil, electricity, and coal produced less expensively in other states, as well as irresponsible wagon mines. And complainant notes also that the Legislature in the same section (Schedule 91), wherein the tax on coal mining is fixed, gave recognition to the serious condition of the business by the following provision found therein: "Provided that in order that the industrial development of the State may be best preserved and promoted and in order that any deleterious effect of the tax levied in this Schedule may be minimized, the State Tax Commission is authorized and empowered to lower, with the approval of the Governor, as in its knowledge or prevailing conditions may, from time to time, prove expedient and advisable for the best welfare of the State, but not to raise the rate on which the tax is computed."

Complainant further insists that, as 90 per cent. of the coal sold is through retail dealers, a tax on the retailer necessarily has its reflex action on the coal business, hindering it in its struggle to reclaim its former position in the economic world; and to subject such retailer to the 2 per cent. sales tax would...