Maples v. McDonald

• Decision Date: 09 June 1995
• Citation: 668 So.2d 790
• Parties: Joe MAPLES, et al. v. Stan McDONALD, et al. 2940536.
• Court: Alabama Court of Civil Appeals

Page 790

668 So.2d 790

Joe MAPLES, et al. v. Stan McDONALD, et al.

2940536.

Court of Civil Appeals of Alabama.

June 9, 1995.

Rehearing Denied July 28, 1995.

Appeal from Montgomery Circuit Court, No. CV-92-2629; H. Randall Thomas, Judge.

W. Lewis Garrison, Jr. and Ezra B. Perry, Jr. of Corley, Moncus & Ward, P.C., Birmingham, for Appellants.

Jeff Sessions, Atty. Gen.; Ron Bowden, Counsel, Department of Revenue, and Asst. Atty. Gen.; and J. Wade Hope, Asst. Counsel, Department of Revenue, and Asst. Atty. Gen., for Appellees.

CRAWLEY, Judge.

Joe Maples and Clinton Aden (taxpayers) filed a class action against several retailers to recover an overpayment of sales taxes on beer, wine, and tobacco products. The taxpayers alleged that the retailers had applied the sales tax on the retail price of the products including the excise taxes placed on these products and that that practice constituted illegal "double" taxation. As a result of a settlement agreement, the taxpayers and the retailers filed a joint petition for a refund for excess payment of taxes with the Department of Revenue. The Department denied the refund petitions, and the taxpayers filed a petition for a writ of mandamus, requesting the trial court to order the Department to refund the excess tax payments. The taxpayers and the Department each filed a motion for summary judgment. The trial court granted the Department's motion and denied the taxpayers' motion. The taxpayers appealed to the Supreme Court, which transferred the appeal to this court on March 30, 1995, for lack of jurisdiction.

The taxpayers argue that the trial court erred in granting the Department's motion for summary judgment and erred in denying their motion for summary judgment.

A motion for summary judgment is to be granted when no genuine issue of a material fact exists, and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), A.R.Civ.P. Moreover "[i]n determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present 'substantial evidence' creating a genuine issue of material fact--'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' "

Capital Alliance Insurance Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994) (citations omitted).

The trial court did not detail its legal reasoning supporting its grant of the Department's motion for summary judgment and its denial of the taxpayers' motion for summary judgment. The taxpayers argue that they, not the Department, were entitled to a summary judgment because, they say, they properly filed their refund petitions and the amendments to Ala.Code 1975, § 40-23-1 and § 40-23-4, which provide that consumer excise taxes will be included in the amount on which sales tax is placed, are unconstitutional. We find the dispositive issue to be the constitutionality of the statutory amendments.

Ala.Acts 1992, Act No. 92-343 (First Special Session) (the Act) amended § 40-23-1 and § 40-23-4, with the amendment retroactive to January 1, 1984. Section 2 of the Act states:

"It was the intent of the Legislature in enacting Section 40-23-1, Code of Alabama 1975, to impose state sales tax on the full purchase price of products that might contain any consumer excise taxes. The purpose of amending Sections 40-23-1 and 40-23-4 is to clarify and implement the actual purpose and meaning of the Legislature when it enacted the state sales and use tax statute and provided exemptions from those taxes."

After the amendments, the definitions of "gross proceeds of sales" and "gross receipts" both include "any consumer excise taxes" in the cost of tangible personal property for sale. Ala.Code 1975, § 40-23-1(a)(6) and (8).

The taxpayers first argue that the Act violates the separation of powers principle in Ala. Const. 1901, Art. III, §§ 42 and 43, in that, they argue, the legislature unconstitutionally exercised the power of the judiciary by enacting the amendments. They contend that the legislature is directing the judiciary how to interpret the sales and use tax statutes. The legislature usurps the judicial power if it

"compel[s] the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force.... If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statutes, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative judgment."

Lindsay v. United States Savings & Loan Company, 120 Ala. 156, 168, 24 So. 171 (1898) (citation omitted). We do not agree with the taxpayers that the Act is analogous to the constitutionally defective statute in Lindsay, supra. The legislature has not retained the same language in the statutes; rather, it has provided new language in the sales and use tax statutes by amending the definition of "gross proceeds of sales," Ala.Code 1975, § 40-23-1(a)(6), and the definition of "gross receipts," § 40-23-1(a)(8), to include consumer excise taxes. Therefore, the Act is not an encroachment on the power of the judiciary.

The taxpayers also argue that the legislature unconstitutionally made the Act retroactive. The legislature's power to enact legislation is plenary, limited only by the Constitution. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969). Retroactive application of revenue statutes is a common legislative practice that is not per se unconstitutional, and in this case the legislature expressly provided for the act to be applied retroactively. See United States v. Darusmont, 449 U.S. 292, 101 S.Ct. 549, 66 L.Ed.2d 513 (1981). The taxpayers have failed to show that the retroactive application of the Act is unconstitutional.

The taxpayers contend that the Act is an ex post facto law and violates Ala. Const. 1901, Art. I, §§ 7 and 22. However, they do not have standing to argue this issue, because the prohibition against ex post facto laws applies only to criminal matters. Aldridge v. Tuscumbia, Courtland, & Decatur R.R., 2 Stew. & P. 199 (Ala.1832). Here, the taxpayers are not charged with any criminal...