Lee v. Cunningham

• Decision Date: 24 June 1937
• Docket Number: 3 Div. 209
• Citation: 234 Ala. 639,176 So. 477
• Parties: LEE, State Comptroller, v. CUNNINGHAM.
• Court: Alabama Supreme Court

176 So. 477

234 Ala. 639

LEE, State Comptroller, v. CUNNINGHAM.

3 Div. 209

Supreme Court of Alabama

June 24, 1937

Rehearing Denied Oct. 28, 1937

Certiorari to Court of Appeals.

Petition of Charles W. Lee, as State Comptroller, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Lee, Comptroller v Cunningham, 176 So. 475.

Writ granted, and judgment reversed and rendered.

A.A Carmichael, Atty. Gen., and Silas C. Garrett, III, Asst Atty. Gen., for petitioner.

Leo H. Pou, of Mobile, and Steiner, Crum & Weil, of Montgomery, opposed.

BROWN Justice.

The appellee, Cunningham, applied to the circuit court of Montgomery county, for the issuance of the writ of mandamus to the petitioner, Charles W. Lee, as state comptroller, commanding him to issue a warrant on the state treasurer for the payment of the sum of $585 alleged to have been exacted by the judge of probate of Mobile county, through error, as a license tax to the state for engaging in business by petitioner, as Van Heynigen Brokerage Company, in the city of Mobile, Ala., for the years 1919 to 1931 inclusive, under the provisions of Schedule 121 of section 361 of the General Revenue Act of 1919, which levied such license tax on "Ship Brokers" defined in the act as "any person engaged in the management of business matter occurring between the owners of vessels and the shippers or consignors of the freight which they carry."

The basis of Cunningham's claim is that during said years he was engaged exclusively in interstate and foreign commerce.

This fact was alleged in his petition and he exhibited thereto copies of the certificate of the judge of probate made under sections 375, 376 of the General Revenue Acts of 1919, p. 445, and the order of the state board of adjustment allowing said claim, entered in pursuance of his petition to said board for an allowance of said claim.

In the return to the rule nisi, issued on the filing of the petition, the respondent, Lee, as state comptroller, denied the jurisdiction of the state board of adjustment and the averments of the petition, asserting that said petitioner during said years was engaged entirely in interstate and foreign commerce, and alleged as a fact "that a part of the petitioner's business for the said years over which the privilege tax payments were exacted consisted of intrastate commerce."

The facts stated in the return were not controverted as authorized by section 8979 of the Code 1923, and on the submission of the case on the petition and return, the circuit court entered a judgment granting the peremptory writ, and from that judgment the state comptroller appealed to the Court of Appeals (176 So. 475) where the judgment of the circuit court was affirmed.

The case having been submitted in the circuit court on the petition and the return to the rule nisi, as above stated, the questions presented by the appeal to the Court of Appeals were questions of law, and reviewable here on the record. Kugle v. Harpe (Ala.App.) 176 So. 616.

The first question to be decided is the legal effect of the order and judgment of the state board of adjustment created by the act, approved September 14, 1935 (Gen. Acts 1935, p. 1164) entitled "An Act to create a Board to be known as 'State Board of Adjustment'; to name its personnel, to define its duties and powers and to authorize said Board to certify its findings to the Comptroller for the payment of its awards, decrees and findings out of the fund herein provided for; to provide the basis of awards and decrees and to make appropriation therefor."

Section 2 of said act provides: "The said Board of Adjustment shall have power and it shall be its duty to hear and consider all claims for damages to the persons or property growing out of any injury done to either persons or property by any of the agencies of the State of Alabama; also, to hear and consider any claim for personal injuries or death of any employee of the State of Alabama, or its commissions, boards agencies or institutions arising out of the course of his employment, or sustained while engaged in the business of the State of Alabama or any of its boards, institutions, agencies, or commissions, and also any claim for personal injuries or death of any convict. The jurisdiction here granted shall include claims for past and future injury to persons or property, or death. Said Board of Adjustment is also empowered and it shall be its duty to hear and consider all claims against the State of Alabama arising out of any contract, express or implied, to which the State or any of its agencies, commissions, boards or institutions are parties, where there is claimed a legal or moral obligation resting on the State to make payment; also claims for money over paid on obligations due the State; and claims for under payment by the State to parties having dealings with the State; also claims for money or property alleged to have wrongfully escheated to the State; also claims for money voluntarily paid to the State where no legal liability existed to make such payment. When claims are properly prepared and presented to the Board, and after ascertaining the facts in the case, the Board is directed to determine the amount of the injury, death or disability, or other injury arising from contract or business, and to fix the damages, using as its guide the ordinary rules of negligence...