Miller-Brent Lumber Co. v. State

• Decision Date: 09 June 1923
• Docket Number: 4 Div. 27.
• Parties: MILLER-BRENT LUMBER CO. v. STATE ET AL.
• Court: Alabama Supreme Court

97 So. 97

210 Ala. 30

MILLER-BRENT LUMBER CO. v. STATE ET AL.

4 Div. 27.

Supreme Court of Alabama

June 9, 1923

Appeal from Circuit Court, Coffee County; Arthur B. Foster, Judge.

Bill by the State of Alabama and Coffee County against the Miller-Brent Lumber Company. From a decree for complainants defendant appeals. Affirmed.

J. A Carnley, of Elba, for appellant.

W. W Sanders, of Elba, for appellees.

THOMAS J.

The bill in equity was to ascertain the amount of taxes due the state and county for the tax year indicated, and to enforce the respective liens thereon for the taxes.

The subject of the jurisdiction of a court of chancery to re-establish lost or destroyed records, such as are the subject of consideration, was recently discussed in Wise v. State, 208 Ala. 58, 93 So. 886.

The court committed no error in admitting in evidence the substituted tax assessments and decrees thereon, the preliminary proceedings thereto, and the respective notices and orders thereof provided and required by statute to be given to a due substitution of such tax records. It is immaterial that the substitution of the records was made subsequent to the filing of the bill in the instant case. The tax having been duly assessed, etc., the lien for such taxes attached, that lien was not destroyed by the loss or theft of the records in question, and may be substituted under a retrospective statute. Folsom v. Carnley (Ala. Sup.) 97 So. 95.

The authority to establish the records, as was done in this case, is to be found in the Act of the Special Session, 1921, page 22 et seq.:

"To provide a statutory method for substituting any tax record in any county in this state and giving to the substituted records the same force and effect for all purposes as the original had, where such original record has been lost, stolen or destroyed."

It is provided in the act that when any tax record has been lost, stolen, or destroyed, the same may be substituted, "and such substituted record shall be of equal validity with the original"; and that notice of the proceedings prior to the decree of substitution shall be given by publication. Provision is also made for objection by the taxpayer and for appeals; and, in fact, adequate procedure is provided for carrying into effect the purposes and provisions of the act. State Tax Commission v. Bailey & Howard, 179 Ala. 620, 627, 60 So. 913. To meet any suggestion of due process, it is specifically provided that any taxpayer who is aggrieved at the findings of the tax adjuster and the state, or the county, shall have a right of appeal from such findings to the state tax commission, which commission is given authority to hear, consider, and determine such appeal, and, for such purpose, to "sit at the State Capitol"; and any such taxpayer shall have a further right to appeal from the findings or the decree of the state tax commission to the Court of Appeals of the state within the reasonable time provided by the act. In section 23 of the act is contained the legislative declaration that its provisions are intended to be remedial, and shall apply both to the case where any such tax records of a county have been so lost, stolen, or destroyed before the passage and approval of the act, as well as to the case of the loss, theft, or destruction of such records thereafter. It is apparent that the provisions of the statute were prepared after a full knowledge of the effect of statutes having retrospective operation. Barrington v. Barrington, 200 Ala. 315, 322, 76 So. 81; Board of Revenue of Jefferson County v. Hewitt, 206 Ala. 405, 90 So. 781; Ex parte Buckley, 53 Ala. 42, 53.

The act was approved on the 29th day of October, 1921, and the original bill in this cause was filed October 8, of the same year, prior to the passage of the act. Being remedial in its nature, and having retrospective operation, the statute applied to pending cases.

The retrospective operation of statutes has been often discussed by this court. It is said that a statute intended by the Legislature to be applied to, or have effect on, past actions, transactions, contracts, offenses, or the exercise of power, may be valid and effective when the Legislature originally had authority to confer the power, or to authorize the act or transaction; that is to say, in cases where the curative statute does not (1) have the effect of impairing a vested or contract right, or (2) of validating an unconstitutional statute or proceeding, or (3) of taking away a cause of action, or (4) of destroying an existing defense to a cause of action after suit has been commenced, or (5) of reviving a right or remedy which had been barred by lapse of time or by statute. Board of Revenue of Jefferson County v. Hewitt, 206 Ala. 405, 409, 410, 90 So. 781; Cooley, Constitutional Limitations (6th Ed.) p. 454; 1 Dillon, Municip. Corpr. (5th Ed.) § 129, p. 231; Chuoco Tiaco v. Forbes, 228 U.S. 549, 33 S.Ct. 585, 57 L.Ed. 960.

The observation of appellant's counsel is that the loss of the original record may not be proven by the certificate of the tax assessor. The authority was given by section 2 of the Act of October 29, 1921 (Acts, p. 22), to the tax assessor to notify the state tax commission in writing of the loss, theft or destruction of such records. The record shows that the first step looking to the substitution of such lost or stolen tax records was made by the certificate of the tax assessor notifying the state tax commission, in writing, as required by the act, of the loss, theft, or destruction of the tax records made the subject of this controversy. This certificate, unless successfully impeached, imports absolute verity. There was no proof tending to impeach the tax assessor's certificate, and hence the loss of such original records was sufficiently proved as required and provided by law.

The statutory method for substituting a tax record in any county where the same has been lost, stolen, or destroyed, was essentially a proceeding in rem as to certain of the initial proceedings, and the nature thereof was not changed until it became in personam by intervention of interested taxpayers availing of the hearings and appeals. It was not essential to the validity of such proceedings that personal notice be given to the parties affected. State Tax Commission v. Bailey & Howard, 179 Ala. 620, 60 So. 913; Evans v. Evans, 200 Ala. 329, 76 So. 95. The constructive notice provided (under the due process clause of the Fourteenth Amendment to the Constitution of the United States) is all that is required of the proceedings to re-establish the tax assessments of the state or county. Validity is to be found in the provisions of the Revenue Act of 1919 (Laws 1919, p. 282), authorizing the assessments of taxes, resident and nonresident, and providing for notices to such property owners and taxpayers; such notices, prescribed by publication are sufficient to acquaint those having property in the jurisdiction of the state and county, to discharge this public duty by due assessments of the taxes as required by law. No sound reason exists why a like notice of the substitution of the lost, stolen, or destroyed tax record is not sufficient as due process. The original proceeding to a due assessment of the tax, and that for the substitution of such original record, is in the nature of a proceeding in rem, not affecting the person in the sense of creating a primary personal obligation, but necessary in a discharge of the burdens of government imposed by law. And when reasonable constructive notice is given by publication of such proceedings, it is sufficient. Analogy is contained in Gill v. More, 200 Ala. 511, 76 So. 453; Joseph & Bros. Co. v. Hoffman, 173 Ala. 568, 56 So. 216. Authorities are collected on the subject in 15 R. C. L. 633. The requirement is of a reasonable notice by publication, and the act is a reasonable exercise of the legislative power in the prescription of the notice contained therein. Such notices have been sustained by the Supreme Court of the United States. Paulsen v. City of Portland, 149 U.S. 30, 13 S.Ct. 750, 37 L.Ed. 637; Bellingham Bay & B. C. R. Co. v. New Whatcom, 172 U.S. 314, 19 S.Ct. 205, 43 L.Ed. 460; Merchants' Bank v. Pennsylvania, 167 U.S. 461, 466, 17 S.Ct. 829, 42 L.Ed. 236, 238; St. Louis S.W. R. Co. v. Ark. ex rel. Norwood, 235 U.S. 350, 367, 35 S.Ct. 99, 59 L.Ed. 265, 273. No other notice is required to a taxpayer than that given as the reasonable requirements of law. Clement Nat. Bank v. Vermont, 231 U.S. 120, 143, 34 S.Ct. 31, 58 L.Ed. 147; C., N. O. & T. Pac. R. R. Co. v. Commonwealth of...