Henry v. McCormack Bros. Motor Car Co.

Citation232 Ala. 196,167 So. 256
Decision Date20 February 1936
Docket Number6 Div. 867
PartiesHENRY v. McCORMACK BROS. MOTOR CAR CO.
CourtAlabama Supreme Court

Rehearing Denied April 23, 1936

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

Petition of the McCormack Bros. Motor Car Company for mandamus to Eugene B. Henry, as commissioner of licenses of Jefferson county. From a judgment granting the writ, respondent appeals.

Reversed and rendered.

A.A Carmichael, Atty. Gen., Frontis H. Moore, Asst. Atty. Gen and Ernest Matthews, of Birmingham, for appellant.

Lange Simpson & Brantley and Ormond Somerville, Jr., all of Birmingham, for appellee.

THOMAS Justice.

The petition is for mandamus to compel the issue of a dealer's license under the provisions of the General Revenue Act of 1935, General Acts 1935, p. 445, § 348, Schedule 12; p. 557, § 350.

The major questions presented for decision are: What was the expressed legislative intent by the several provisions of the statute considered in pari materia; and if the proviso in section 348, Schedule 12, governs, is it offensive to section 221 of the Constitution?

There are recognized canons of statutory construction that will be observed. In construing statutes, they are: (1) "Where the language of a statute is clear and the intent obvious, there is no room for construction; but where the meaning and intent are not obvious the court must attempt to arrive at the legislative intent." City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159, headnote 1. (2) The legislative intent will be sought from the whole subject, where the language is not clear or obvious. Hamilton et al. v. Pullman Car & Mfg. Corporation of Alabama (Ala.Sup.) 163 So. 329; Davis v. State ex rel. County Board of Equalization of Cherokee County, 16 Ala.App. 397, 78 So. 313. (3) In determining the intent and purpose of an enactment, courts will look to the context and all of its provisions, and, if possible, give the act effect according to the legislative intent so expressed. Edwards v. Doster-Northington Drug Co., 214 Ala. 640, 108 So. 862; Armstrong v. Sellers et al., 182 Ala. 582, 62 So. 28. (4) Any apparent mistakes in the wording of the statute will be corrected, where the other provisions of the act or the legislative journals furnish such means of correcting such apparent mistakes as will fairly carry out the intent of the Legislature. State ex rel. Leslie et al. v. Bracken et al., 154 Ala. 151, 45 So. 841; Louis Pizitz Dry Goods Co. v. Fidelity & Deposit Co. of Maryland, 223 Ala. 385, 136 So. 800; State ex rel. Norquist et al. v. Glennon, 227 Ala. 208, 211, 149 So. 257; Dauphin & LaFayette Streets Railway Co. v. Kennerly, 74 Ala. 583. (5) Where there is doubt as to the meaning and intent of a statute by reason of the language employed, or arising from the context, courts may look to the history, conditions which led to that enactment, the material surrounding circumstances, the ends to be accomplished, and evils to be avoided or corrected, in order that the legislative intent be ascertained and given effect, if possible. McCreless v. Tennessee Valley Bank, 208 Ala. 414, 94 So. 722; Prowell v. State ex rel. Hasty et al., 142 Ala. 80, 39 So. 164.

It is further established that exemptions from taxation must be strictly construed in favor of the taxing power ( Hamilton et al. v. Pullman Car & Mfg. Corporation of Alabama [Ala.Sup.] 163 So. 329; Pullman Car & Mfg. Corporation of Alabama v. Hamilton et al., 229 Ala. 184, 155 So. 616); that is, that exemptions from taxation must be clear and unambiguous and may not be deduced and allowed from language of doubtful import. (State v. Kidd, etc., 125 Ala. 413, 28 So. 480; Brown, Ins. Commissioner v. Protective Life Insurance Company, 188 Ala. 166, 66 So. 47; Cooley on Taxation [4th Ed.] § 672, page 1403). This is the rule long prevailing in this jurisdiction for the construction of such exemptions contained in charters as well as in statutes. Dauphin & LaFayette Streets Railway Co. v. Kennerly, 74 Ala. 583; Mobile & Spring Hill Railroad Co. v. Kennerly, 74 Ala. 566; Cooley on Taxation (4th Ed.) § 672, page 1411.

It is further declared that in the construction of statutes, charters, and contracts, it is often true that the doctrine of ejusdem generis or otherwise stated as noscistur a sociis (Black's Law Dictionary, pages 411, 527; 1 Vent. 225; 3 Term.R. 87; Broom, Max. 588) may be resorted to in the ascertainment of the intent and meaning of doubtful and associated words and phrases (State v. Western Union Telegraph Co., 196 Ala. 570, 72 So. 99; Life & Casualty Ins. Co. of Tennessee v. Bottoms, 225 Ala. 382, 143 So. 574).

It is insisted, and it is the rule, that a prima facie presumption obtains in favor of the proper exercise of the taxing power; that he who claims exemption therefrom has the burden of establishing the right thereto. Hamilton et al. v. Pullman Car & Mfg. Corporation of Alabama (Ala.Sup.) 163 So. 329.

The question of the legislative intent to be gathered from the revenue act recurs, as to whether or not a license for the conduct of a business such as that of petitioner's was required in behalf of and for the benefit of the county, when the several related provisions of the act are considered in pari materia. General Acts 1935, p. 445, § 348, Schedule 12, § 350, pp. 557, 558.

The immediately pertinent provisions of the act are: "Section 350. Before any person, firm, or corporation shall engage in or carry on any business or do any act for which a license by law is required, he, they or it, except as otherwise provided, shall pay to the Judge of Probate of the County in which it is proposed to engage in or carry on such business or do such act, the amount required for such license, and shall comply with all the other requirements of this Act; *** (a) Whenever a license is levied in this Act, there shall be collected both a State and County license for each place of business, except as specifically otherwise provided."

And section 348, Schedule 12:

"Upon each and every agent of and/or dealer in, and upon every person soliciting orders for the sale or purchase of automobiles, motor cars, or other self propelled vehicles, except motocycles (motorcycles) and except any person regularly employed by a said agent of, and/or dealer in, which said agent of, or dealer in, has paid the privilege tax or license herein provided for, the following privilege or license tax shall be levied and collected, for each place of business, to-wit: In cities or towns having a population under Twenty-five hundred people or less, Fifty Dollars ($50.00). In cities or towns having a population over Twenty-five hundred and less than Five thousand, Seventy-Five Dollars ($75.00); in cities or towns having a population of over Five thousand and less than Ten thousand, One Hundred Dollars ($100.00); in cities or towns having a population of over Ten thousand and less than Twenty-five thousand, One hundred and twenty-five Dollars ($125.00); in cities or towns having a population of over twenty-five thousand and less than fifty thousand, One hundred and fifty Dollars ($150.00); in cities or towns having a population of over fifty thousand, Two hundred Dollars ($200.00). Provided that upon payment of the license according to the foregoing schedule, a dealer in automobiles may do a general automobile and automotive business and not be required to pay any further or additional state and county licenses to handle or sell automobile, accessories and parts, radios, tires and batteries, or for the operation of a garage for storage where a charge is made, or for the repair of painting of motor vehicles or trucks."

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