Radue v. Zanaty

• Citation: 308 So.2d 242,293 Ala. 585
• Parties: Harland L. RADUE v. Wadell ZANATY et al. SC 582.
• Decision Date: 13 February 1975
• Court: Supreme Court of Alabama

Page 242

308 So.2d 242

293 Ala. 585

Harland L. RADUE v. Wadell ZANATY et al.

SC 582.

Supreme Court of Alabama.

Feb. 13, 1975.

Harland L. Radue, pro se.

George Hibbert, Atlanta, Ga., for appellee Federal Reserve Bank of Atlanta.

John J. McMahon, Jr., Birmingham, for appellee First Natl. Bank of Birmingham.

London, Yancey, Clark & Allen and Max Hudson, Birmingham, for appellee Fidelity & Deposit Co. of Maryland, a Corp.

William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue and Asst. Atty. Gen., Herbert I. Burson, Jr., Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for appellee Agnes Baggett, Treasurer of the State of Ala.

HEFLIN, Chief Justice.

This is an appeal from a dismissal under Rule 12(b)(6) of the Alabama Rules of Civil Procedure for failure to state a claim upon which relief can be granted. That judgment is affirmed.

The plaintiff-appellant in this case, Dr. Harland L. Radue, has been to this court before; see Radue v. Bradshaw, 289 Ala. 481, 268 So.2d 760 (1972). Indeed, the present case seems to be a sequel to his first case. The two cases, however, present different questions of law entirely.

Radue in 1969 was a Birmingham chiropractor. In that year he earned an income but failed to file a state income tax return. Because he filed no return the Department of Revenue made an administrative determination of the tax due the state. Dr. Radue did not appeal in the manner provided by statute, but instead, some months after the assessment was made, filed a bill in equity seeking injunctive and declaratory relief. The Jefferson County Circuit Court dismissed the complaint. This court affirmed, upholding a final assessment against Dr. Radue for $692.11 in taxes for the year 1969. The Jefferson Circuit Court had also assessed court costs against Dr. Radue.

Thereafter Radue wrote two checks, drawn on the respondent First National Bank of Birmingham, in the amounts of $568.06 and $200.00. (It is not clear why one check was not for the amount of taxes due, but nevertheless the two checks apparently equal the total of the taxes due plus court costs.) These two checks carried at the signature lines this statement: 'This signature void if not redeemed in gold and silver coin.' On the backs of the checks was another statement: 'NOTICE TO ENDORSER--This check is to be redeemed in gold or silver coin as per Article 13 of the Alabama Constitution and Article 1, Sec. 10, U.S. Constitution. Specie payment.' Dr. Radue added these two statements after getting the checks certified by the respondent First National Bank of Birmingham.

On May 30, 1973, Dr. Radue filed his complaint in the present action; he contended among other things that the two checks satisfied the judgment and assessment of costs.

Dr. Radue's present case is centered around Article 13, Sec. 249, of the Alabama Constitution of 1901 and Article 1, Section 10, of the U.S. Constitution. Article 13, § 249, of the Alabama Constitution provides:

'All bills or notes issued as money shall be at all times redeemable in gold or silver, and no law shall be passed sanctioning directly or indirectly the suspension by any bank or banking company of specie payment.'

Article 1, § 10, of the U.S. Constitution provides:

'No State shall * * * make any Thing but gold and silver Coin a Tender in Payment of Debts * * *.'

Dr. Radue's complaint sought, among other things: 1) that Respondent Zanaty (Register of the Jefferson Circuit Court) be enjoined from accepting anything but gold or silver coin as payment of the judgment and costs; 2) that Respondents Fidelity & Deposit Company of Maryland and Nelson & Crabbe Company (which respondents had bonded Dr. Radue) be enjoined from offering payment of the judgment and costs in any tender other than gold or silver coin; 3) that the respondent banks be enjoined from refusing to pay his checks in gold or silver coin; and 4) that the state treasurer be enjoined from accepting payment of the checks in any form except gold or silver coin.

Dr. Radue says he has a right to demand compliance with the constitutional provisions cited Supra, and contends that without the requested injunctions it will be impossible for him to satisfy the judgment of this court and his allegiance to the constitutions of our state and nation at the same time. Specifically, he says that these constitutional provisions prohibit the State of Alabama from accepting paper money and from paying its warrants in anything but gold or silver.

It is apparent that both constitutional provisions relied upon by the plaintiff place restrictions upon the powers of the state. The United States Supreme court, considering the constitutionality of a congressional act making United States notes legal tender, stated long ago in the case of Juilliard v. Greenman, 110 U.S. 421, 4 S.Ct. 122, 28 L.Ed. 204 (1884):

'By the constitution of the United States, the several states are prohibited from coining money, emitting bills of credit, or making anything but gold and silver coin a tender in payment of debts. But no intention can be inferred from this to deny to congress either of these powers. * * *'

It does not appear here that the State of Alabama has attempted in any way to make paper money legal tender in payment of debts. Nor does it appear that the State of Alabama has in any way passed a law sanctioning directly or indirectly the suspension by any bank of specie payment.

In actuality, Radue's complaint has to be that the Congress of the United States has made paper money a tender for payment of debt. However, the power of Congress to establish paper money as a legal tender has long been decided. Mr. Justice Gray, speaking for the United States Supreme Court, stated in Juilliard v. Greenman, Supra:

'* * * Under the power to borrow money on the credit of the United States,...