Horn v. Dunn Bros., Inc.

• Citation: 262 Ala. 404,79 So.2d 11
• Decision Date: 24 March 1955
• Docket Number: 3 Div. 669
• Parties: W. L. HORN, as State Commissioner of Revenue, v. DUNN BROTHERS, Inc.
• Court: Supreme Court of Alabama

Page 11

79 So.2d 11

262 Ala. 404

W. L. HORN, as State Commissioner of Revenue, v. DUNN BROTHERS, Inc.

3 Div. 669.

Supreme Court of Alabama.

March 24, 1955.

Si Garrett, Atty. Gen., and H. Grady Tiller and Wm. H. Burton, Asst. Attys. Gen., for appellant.

Jack Crenshaw, Montgomery, for appellee.

MAYFIELD, Justice.

This is an appeal from a final decree of the Circuit Court of Montgomery County, sitting in equity, rendered on 15 May 1953. After submission in this Court, the term of office of Joe M. Edwards, as Commissioner of Revenue, expired, and W. L. Horn was appointed his successor. By agreement of the parties, and with the consent of this Court, W. L. Horn has been substituted as appellant in the stead of Joe M. Edwards.

The complainant-appellee-taxpayer filed an original bill for a declaratory judgment. It was alleged that it was a Texas Corporation with its principal place of business in Dallas, Texas. Further, that there exists a reciprocal agreement between the State of Texas and the State of Alabama as to mileage taxes and that the taxpayer's operation comes within the terms of this agreement. The bill alleged that a justiciable issue existed between the taxpayer and the Commissioner of Revenue as to the construction of such agreement and as to the rights and liabilities of the taxpayer under this agreement. The taxpayer prayed for a declaration of right construing the terms of this reciprocal agreement and enjoining the Commissioner from requiring the taxpayer to pay further fees and taxes on its interstate operation.

The reciprocal agreement between Alabama and Texas was purportedly made pursuant to the statutory authority contained in the Mileage Tax Act, Title 48, Section 301(46), Code of Alabama 1940, as amended. Paragraph 5 is the portion of that agreement which is most pertinent to the present controversy.

'Paragraph 5. Trucks, truck-tractors, trailers or combination of truck, truck-tractor with semi-trailer transporting property for hire and/or compensation may be operated in both states parties to this agreement, without limitation as to the number of trips and without the payment of any vehicle registration fees, or mileage fees, when the vehicle of the owner thereof engages only in interstate operations in the state granting reciprocity to that of his domicile, and provided, however, that nothing herein shall exempt operators engaged in for hire and/or compensation operations from complying with the regulations of the Texas Railroad Commission and the Alabama Public Service Commission as to securing operating authority, insurance requirements, payment of application filing fees or cost of identification plates.'

The Circuit Court of Montgomery County entered a declaration of right in favor of the taxpayer on 29 February 1952, in which it ordered, declared and decreed:

'1. That said reciprocal agreement between the State of Alabama and the State of Texas applies to the Complainant which is engaged in the operation of motor vehicles duly licensed in the State of Texas and of which State the Complainant is a legal resident.

'2. That Complainant's motor vehicles may be operated in the State of Alabama without limitation as to the number of trips and without the payment of any vehicle registration fees and mileage fees, where such vehicles of the Complainant are engaged only in interstate operations in the State of Alabama.

'3. That the Complainant is not liable to the State of Alabama or any subdivision thereof for vehicle registration fees or mileage fees or mileage taxes on motor vehicles of the Complainant which are engaged only in interstate operations in the State of Alabama.

'4. That all motor vehicle registration fees, mileage fees, or mileage taxes heretofore paid by the Complainant on motor vehicles engaged only in interstate operations in the State of Alabama were paid under mistake of law and Complainant is entitled to the refund thereof upon proper application for refund.

'5. That the Respondent, Joe M. Edwards, as Commissioner of Revenue of the State of Alabama, his agents, employees, or representatives are hereby enjoined and restrained from requiring Dunn Brothers, Inc., to pay any motor vehicle registration fees, mileage fees and mileage taxes where the vehicles of the Complainant are engaged only in interstate operations in the State of Alabama.'

No appeal was taken by the Commissioner of Revenue from this declaratory judgment. The taxpayer filed an application for refund with the State Department of Revenue in the amount of $6,118.36, on 9 October 1952, under the provisions of Title 51, Sec. 913, Code of Alabama 1940, as amended. The amount claimed represented mileage tax paid by the taxpayer during a period beginning in September 1949 and ending in October 1950. The taxpayer's application for refund was refused by the Commissioner on 19 November 1952. On 21 January 1953, the taxpayer filed a petition in the Circuit Court alleging the refusal of its claim for refund and praying that the Court make such supplemental orders as were necessary to give full force and effect to its declaration of right of 29 February 1952. The Commissioner filed demurrers and answers to this petition. The principal contention was that the amount which the taxpayer sought to have refunded was paid on intrastate operations. The Commissioner also filed a motion for severance in which he asserted that the mileage fees which constituted the subject of the petition related to a period prior to those which were the subject of the Court's decree of 29 February 1952. Further, that the taxpayer was attempting to merge two separate suits. The Commissioner prayed that the two causes be severed and treated as two separate suits.

The trial court overruled the Commissioner's demurrer and motion for severance upon a hearing held 15 May 1953. The court below made a finding of fact based on oral testimony and numerous exhibits placed into evidence, that of the total amount claimed by the taxpayer $5,731.92 was for mileage fees paid on interstate operation. The court thereupon decreed as follows:

'* * * the Respondent, Joe M. Edwards be and he is hereby ordered and directed to allow such application for refund in the amount of $5,731.92. It is further ordered that the cost of these proceedings be taxed against the respondent for which let execution issue.'

From this decree the respondent-Commissioner appealed. We are met at the threshold with the problem of the scope of this appeal. It is contended by the Commissioner and argued exhaustively and with force by his able solicitor that the decree of 29 February 1952, was merely a preliminary or intermediate decree. The Commissioner's solicitor strenuously maintained that this decree and the 'final' decree of 15 May 1953, are presently before this Court.

The declaration of right rendered on 29 February 1952, fully ascertained and declared the rights of the parties and settled the equities. It resolved all the issues then before the Court and provided for no further proceedings. It was, therefore, a final decree. Ex parte Sparks, 254 Ala. 595, 49 So.2d 296; Carter v. Mitchell, 225 Ala. 287, 142 So. 514; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502; Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75. The rendition of a supplemental decree does not divest a prior final decree of its finality. As was stated in 30 C.J.S., Equity, § 582, page 975:

'The court cannot, by its subsequent action, divest a decree of its character of finality. A final decree is not rendered interlocutory by the retention of the case on the docket, nor by the subsequent rendition of another decree therein.'

Having elected to take no appeal from the decree of 29 February 1952, the State Department of Revenue lost its right of appeal. Our consideration, is accordingly limited to the trial court's decree of 15 May 1953, from which this appeal is prosecuted. See Burgin v. Sugg, 210 Ala. 142, 97 So. 216; Cochran v. Miller, 74 Ala. 50.

The State Department of Revenue now contends that the proceedings below and the decree from which they prosecute this appeal are void as violative of Section 14 of the Constitution of Alabama 1901, which provision prohibits making the State of Alabama a defendant in any court of law or equity. This question was not raised in the nisi prius court, and the taxpayer insists that it may not now be raised for the first time. With this insistence, we cannot agree. If the appellant's contention were valid, neither the court below nor this court has the jurisdiction to render or countenance the decree of 15 May 1953. Among the questions for consideration on this appeal is the problem of jurisdiction of the trial court as a basis for jurisdiction of this Court. Our Court has consistently held that it will take notice of the question of jurisdiction at any time or even ex mero motu. Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273.

While we may in no manner impinge upon the immunity of the State from suit, adherence to strict formalism would necessarily extend the inclusiveness of Section 14 of our Constitution beyond the policy consideration which occasioned its existence. In the interpretation and application of Section 14 of the Constitution, this Court has stated that it would seek a common sense approach to the problem of the State's immunity from suit. We have pointed out that it is the nature of the suit or the relief demanded which the courts consider in determining whether an action against a State officer is in fact a suit against the State in violation of the Constitutional prohibition. Glass v. Prudential Ins. Co., 246 Ala. 579, 22 So.2d 13.

When State officers are required to perform ministerial acts, ...