Jefferson County v. Gulf Refining Co. of Louisiana

• Decision Date: 16 January 1919
• Docket Number: 6 Div. 795
• Citation: 80 So. 798,202 Ala. 510
• Parties: JEFFERSON COUNTY v. GULF REFINING CO. OF LOUISIANA.
• Court: Alabama Supreme Court

80 So. 798

202 Ala. 510

JEFFERSON COUNTY v. GULF REFINING CO. OF LOUISIANA.

6 Div. 795

Supreme Court of Alabama

January 16, 1919

Rehearing Denied Feb. 6, 1919

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Action by the County of Jefferson against the Gulf Refining Company of Louisiana. From judgment for defendant, plaintiff appeals. Affirmed.

J.R Tate and J.T. Davis, both of Birmingham, for appellant.

D Edward Greer, of Houston, Tex., and Tillman, Bradley & Morrow and John S. Stone, all of Birmingham, for appellee.

MAYFIELD J.

The complaint in this case was as follows:

"The plaintiff claims of the defendant $1,250 as damages, for that from and including the 1st day of October 1916, to and including the 30th day of September, 1917, the defendant engaged in selling illuminating, lubricating and fuel oils and gasoline at wholesale, that is to say, in quantities of 25 gallons or more, in Jefferson county, Ala., and during said time the gross sales of said articles made by the defendant in said county amounted to $250,000; and the plaintiff avers that the defendant has never paid said county any amount whatever on said gross sales as a license or privilege tax, as required by the act of the Legislature of Alabama, approved September 14, 1915, entitled 'An act to prescribe and fix the license or privilege tax to be paid by every person, firm, company, corporation or association engaged in any business, vocation, occupation, calling or progression in this state, or who shall in this state exercise any privileges, for which a license or privilege tax is or may be charged; to provide for and regulate the collection of such license or privilege tax; to fix the compensation to be paid for the collection of such license or privilege tax; to provide for the distribution, application and safe-keeping of the funds arising from the collection of such license or privilege tax; to fix a penalty for doing business without a license and to provide for the enforcement thereof, and to further provide for the general revenues.' "

The trial court sustained a demurrer to the complaint; the plaintiff declined to amend or plead further and suffered judgment, from which it appeals. We are not prepared to say there was error in sustaining the demurrer.

It is not at all certain that the complaint states any cause of action. It has been repeatedly decided by this court that either debt or assumpsit will lie to recover taxes due and unpaid. If the amount be a sum certain as for a penalty, license, fee, etc., debt is the appropriate action. Winter v. City of Montgomery, 79 Ala. 481, 488; Perry Co. v. Railroad Co., 58 Ala. 546; State v. Fleming, 112 Ala. 179, 20 So. 846. It is not easy to say whether this complaint was intended to state a cause of action in case as for a breach of duty, or in debt as for a sum certain due and unpaid, or in special assumpsit.

The complaint, however, is fatally defective, whatever may be decided to be its form of action. It is certain that it seeks to recover a debt, claim, or demand created by statute, and attempts to plead the statute; and in doing so only states the title and date of the statute.

In declaring on general public statutes--though it may be different as to private ones--it is neither advisable nor necessary to state the title or date of the statute, or to recite any part of the statute because it is the law which need not be alleged; facts only are required to be alleged. It is necessary, however, in actions based on statutes, which are declared on as is done in this and similar actions, to show that the act or omission complained of, as constituting the cause of action, is within the provisions of the statute which give the right of action; and all facts and circumstances which are necessary to support the action must be alleged. A mere conclusion that the acts were against the form of the statute, contra formam statuti, will not suffice. It is sufficient, however, to allege the substance and effect of such necessary matter. 1 Chitty on Pleads. star page 386, bottom page 489; Gunter v. Dale County, 44 Ala. 639.

The only part of the statute declared on to which reference is made by title and date only, which lend color to the cause of action, here declared on, is section 2 of the act to be found on page 527 of the Acts of 1915, and by inference to paragraph 74 of the act to be found on page 515 of the same book. Section two of the act reads as follows:

"There is also hereby levied for the use of each county in the state a license or privilege tax upon each person, firm or corporation engaged in, or who shall carry on any of the occupations, business, professions, or callings, or shall exercise any privilege, or do any act for which a license is charged by the state, of fifty per cent. of the state license or privilege tax, except in cases where the amount of such county license is fixed by this act, and except in cases where it is provided that no county license is paid."

It will be observed that there is no express allegation in the complaint that the defendant did "any act for which a license is charged by the state." If there can be any such allegation, it must rest in inference only from paragraph 74 of the same act; and such is the insistence of counsel for the county in argument. The facts which constitute a cause of action should be stated in the complaint, and not left to inference. Facts may be established inferentially from other facts shown in evidence, but this is a rule of evidence and not of pleading. Fidelity & Deposit Co. of Maryland v. Walker, 158 Ala. 129, 48 So. 600; Daniels v. Carney, 148 Ala. 81, 42 So. 452, 7 L.R.A. (N.S.) 920, 121 Am.St.Rep. 34, 12 Ann.Cas. 612.

In declaring on a statute it sometimes becomes necessary to set out or negative an exception or proviso which qualifies or discharges liability in certain events named. If there be an exception in the enacting clause of the statute, the...