In re Opinions of the Justices

• Decision Date: 30 September 1933
• Docket Number: 28.
• Citation: 149 So. 776,227 Ala. 291
• Parties: In re OPINIONS OF THE JUSTICES. In re INCOME TAX ENABLING ACT.
• Court: Alabama Supreme Court

149 So. 776

227 Ala. 291

In re OPINIONS OF THE JUSTICES. In re INCOME TAX ENABLING ACT.

No. 28.

Supreme Court of Alabama

September 30, 1933

Response to questions propounded by Governor.

Questions propounded by the Governor to the Justices of the Supreme Court, under Code 1923, § 10290.

Questions answered.

BROWN J., dissenting.

Income Tax Enabling Act, effective only upon adoption of constitutional amendment authorizing tax provided for in act held not invalid when passed notwithstanding act exceeded constitutional limitation in force at time, where constitutional amendment was subsequently adopted and act then became operative (Gen.Acts 1933 [Ex.Sess.] p. 150; Const.1901, § 214, and Amend. art. 22 [see Gen.Acts 1933 (Ex.Sess.) p. 116] ).

To the Honorable Justices of the Supreme Court of Alabama:

Pursuant to the provisions of sections 10290, 10291 of the 1923 Code of Alabama, I shall be glad if you will answer the following inquiries relating to important constitutional questions in connection with the validity of the so-called Income Tax Enabling Act, found in the General Acts of Alabama, Extra Session 1933, page 150, being Act No. 169, approved April 17 1933:

1. Does said Act, as passed by the Legislature, comply with, and is it in conformity with article 22 of the Constitution of Alabama adopted by proclamation of the Governor, dated August 2, 1933?

2. Does said Act, as passed by the Legislature, offend section 6 of the Constitution of Alabama, or has that Constitutional Section any application thereto?

3. Does said Act, as passed by the Legislature, offend section 22 of the Constitution of Alabama, or has that Constitutional section any application thereto?

4. Does said Act as passed by the Legislature comply with, and is it in conformity with section 45 of the Constitution of Alabama of 1901; or is said Constitutional section 45 applicable thereto?

5. Did the Legislature in passing said Act comply with section 61 of the Constitution of Alabama, or is said Constitutional section 61 applicable thereto? 6. Did the Legislature in passing said Act comply with section 62 of the Constitution of Alabama, or is said Constitutional section 62 applicable thereto?

7. Did the Legislature in passing said Act comply with section 63 of the Constitution of Alabama, or is said Constitutional section 63 applicable thereto?

8. Did the Legislature in passing said Act comply with section 64 of the Constitution of Alabama, or is said Constitutional section 64 applicable thereto?

9. Does said Act as passed by the Legislature offend section 68 of the Constitution of Alabama; or has said Constitutional section 68 any application thereto?

10. Did the Legislature in the passage of said Act comply fully and properly with the provisions of section 70 of the Constitution of Alabama; or has said Constitutional Section any application thereto?

11. Does said Act as passed by the Legislature offend section 71 of the Constitution of Alabama; or has said Constitutional section 71 any application thereto?

12. Was said Act as passed by the Legislature in conformity with section 76 of the Constitution of Alabama?

13. Does said Act as passed by the Legislature offend section 118 of the Constitution of Alabama; or has said Constitutional section 118 any application thereto?

14. Did the passage of said Act by the Legislature of Alabama offend section 122 of the Constitution of Alabama, said Act having been passed at an extraordinary session?

15. Does said Act as passed by the Legislature of Alabama offend section 150 of the Constitution of Alabama; or has said Constitutional section 150 any application thereto?

16. Does said Act as passed by the Legislature of Alabama offend section 211 of the Constitution of Alabama; or has said Constitutional section 211 any application thereto?

17. Does said Act as passed by the Legislature of Alabama offend section 214 of the Constitution of Alabama; or has said Constitutional section 214 any application thereto?

18. Does said Act as passed by the Legislature of Alabama offend section 260 of the Constitution of Alabama; or has said Constitutional section 260 any application thereto?

19. Does said Act as passed by the Legislature of Alabama offend section 281 of the Constitution of Alabama; or has said Constitutional section 281 any application thereto?

20. Under the terms and provisions of said Act as passed by the Legislature, may the income tax therein levied, and authorized be collected for the calendar year 1933, or only after August 2, 1933?

21. May the income derived from such tax, as authorized by said Act and adopted by the Legislature and Constitutional Amendment 23 as adopted by the people, be pledged or held in trust for the payment of warrants of the State of Alabama unpaid and outstanding as of October 1, 1932, and items enumerated in an Act of the Legislature No. 294, being Senate Bill 272 approved November 9, 1932, referred to in the Warrant Act (Acts of the Extra Session of 1933, page 196)?

22. Section 45 of the said Act provides "This Act shall become effective when an amendment to the Constitution authorizing the tax herein provided for has been adopted." Taking this provision into consideration, will the fact that the Act was passed by the Legislature, and approved by the Governor prior to the adoption of the Income Tax Constitutional Amendment affect its validity?

For your consideration in connection with this request for your opinion, I am attaching hereto a copy of the Governor's call convening this extraordinary session of the Legislature.

Very respectfully,

B. M. Miller,

Governor of Alabama.

Response of the Justices.

To His Excellency, Hon. B. M. Miller, Governor of Alabama, Montgomery.

Sir: In answer to your inquiry relating to the so-called Income Tax Enabling Act as set out in the General Acts of Alabama, Extra Session 1933, page 150, No. 169, approved April 17, 1933, we wish to observe that, although you refer to many sections of the Constitution, there is only one feature of your inquiry on which briefs have been submitted attacking the act, and we do not feel called upon to analyze it in connection with contentions not presented to us. We note that, while the inquiry has been in our keeping several weeks, of which much publicity has been given, and that we have invited briefs pertaining to it from any source, the only attack which has been made involves the single question embraced in the first and seventeenth paragraphs of your request.

Article 22, which is the Income Tax Amendment, was proposed by an Act of the Legislature of Alabama, passed by the House March 23, 1933, and by the Senate April 7, 1933, and proclaimed by you as Governor to have been adopted effective August 2, 1933.

The Income Tax Enabling Act was passed at the same session of the Legislature, and approved by you as Governor April 17, 1933. In section 45 of that act it is provided that it "shall become effective when an amendment to the Constitution authorizing the tax herein provided for has been adopted." In the case of Eliasberg Bros. Merc. Co. v. Grimes, 204 Ala. 492, 86 So. 56, 11 A. L. R. 300, it was held that, since income, as a subject of taxation, is property within section 214, Constitution, it was not subject to a rate of taxation in excess of sixty-five one-hundredths of 1 per cent. on its value.

There is no contention that the income tax provided for by the Enabling Act just mentioned, is not in excess of the limitation provided in section 214, Constitution, and void, unless its validity is saved by the amendment, article No. 22, to which we have referred. It is not necessary, therefore, to discuss section 211 in this connection, not mentioned in the Eliasberg Case, supra.

The argument here made is that, since the Legislature had no power to impose a tax on income to that extent, when the Enabling Act was passed and approved, though it did have such right when it became operative, it was void when passed and approved, and that the subsequent effective adoption of article 22 of the Constitution did not validate it.

We concur in the conclusion, if the premise be correct, that the act was void when passed and approved, since article 22 does not expressly validate it.

So that the only question which we need to discuss is whether the Enabling Act was void when passed and adopted, because in violation of section 214 of the Constitution.

The theory on which the contention is made that the act was then void may be expressed in an opinion written by Justice Ellis of Florida in Neisel v. Moran, 80 Fla. 98, 85 So. 346, 352, and which is quoted with approval by Justice Brown of the same court in the same case, as follows: "If the amendment was not a part of the Constitution until that date, then the Legislature had no power prior to that date to bring into existence an act dealing with the subject of the prohibition of the sale of intoxicating liquors, and depend upon an amendment to the Constitution to give vitality to the act. The passage through the Legislature of such an act was without authority. The Legislature had no power to deal with the subject. It was prohibited by the terms of the Constitution from doing so. Such an act would have been void. It would have been nothing more than a blank piece of paper. See Cooley, Const. Lim. 188; Seneca Mining Co. v. Osmun, Secretary of State, 82 Mich. 573, 47 N.W. 25, 9 L. R. A. 770."

It also appears that such was the opinion of four justices of that court. But in that case the constitutional amendment was adopted in November, 1918, about a month prior to the passage of the act, which, however, was passed prior to the date on which the amendment became operative, but which provided that it should go into effect on the...