Smith v. Tennessee Coal, Iron & R. Co.

• Decision Date: 20 May 1915
• Docket Number: 145
• Citation: 68 So. 865,192 Ala. 129
• Parties: SMITH, State Auditor, v. TENNESSEE COAL, IRON & R. CO.
• Court: Alabama Supreme Court

68 So. 865

192 Ala. 129

SMITH, State Auditor, v. TENNESSEE COAL, IRON & R. CO.

No. 145

Supreme Court of Alabama

May 20, 1915

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Petition by the Tennessee Coal, Iron & Railroad Company for mandamus to require C. Brooks Smith, as State Auditor, to issue a warrant for the refund of certain taxes. From an order awarding the writ, respondent appeals. Affirmed.

The agreed statement of fact is as follows: That petitioner is a foreign corporation, and prior to the year 1900 acquired property and engaged in business in the state of Alabama having complied with all the laws, so as to authorize it to do business, and that since 1900 it had owned and operated manufacturing plants in the state of Alabama. That payments on the dates and in the amounts as alleged in the petition and in the certificate of the probate judge were made, and were accompanied by affidavits as required by the act of March 7, 1907 (Laws 1907, p. 418), and that the amounts paid were computed on the basis of said act, vouchers used stating that the payments in 1907-08 were made under the act of March 7, 1907, and that the payment made in 1909 was made under section 2392 of the Code. It is further agreed that during the years 1907 to 1909, inclusive, the paid-up capital stock of petitioner exceeded $1,000,000. It is further admitted that the certificate which is attached is a true and correct copy of the certificate as issued by the judge of probate. It is also admitted that demand had been made upon the state auditor. The following is the petition and certificate:

To C.B Smith, State Auditor, Montgomery, Ala.--Dear Sir: You are hereby requested to draw your warrant in my favor under act approved August 25, 1909 (page 166 of Acts of 1909), for the following sums:

Date.--XLicense No. Amount.

Oct. 1 1909 2831 $ 5,679.37

Jan 15, 1908 690 5,673.28

Jan. 14, 1909 749 6,807.94

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Total $18,160.59

-- erroneously paid by me to judge of probate of Jefferson county, this being the amount paid by me, less the judge of probate's commission; said request being made under recent decision of the Supreme Court, Bigbee Fert. Co. v. C.B. Smith, as Auditor.

Witness my hand and seal this 29th day of May 1914.

Tennessee Coal, Iron & R.R. Co., Petitioner.

By Walker Percy, Division Counsel.

I, J.P. Stiles, judge of probate of Jefferson county, state of Alabama, do hereby certify that the above petition is true, correct, and unpaid, as evidenced by the records in this office, and will ask you, as state auditor, to draw your warrant in favor of the above petitioner for $18,160.59 this 29th day of May 1914.

J.P. Stiles,

Judge of Probate of Jefferson County.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for appellant.

Percy, Benners & Burr, of Birmingham, for appellee.

MAYFIELD J.

This is an appeal from a judgment or an order of the city court of Montgomery awarding a writ of mandamus to compel the state auditor to draw a warrant on the state treasury for certain license or privilege taxes paid by appellee to the probate judge of Jefferson county under and by virtue of a state statute or statutes which have been declared void by the Supreme Court of the United States in the case of Southern Railway Company v. Greene, 216 U.S. 400, 30 Sup.Ct. 287, 54 L.Ed. 536, 17 Ann.Cas. 1247, because in violation of the federal Constitution. The application for mandamus practically followed the application in the case of Bigbee Fertilizer Company v. Smith, State Auditor, 65 So. 37, and the appeal is affirmed on the authority of that case, except as to some other questions insisted upon not insisted upon, or not occurring on the appeal in that case. The application was...