State Tax Commission v. Stanley

• Decision Date: 18 February 1937
• Docket Number: 7 Div. 424
• Citation: 234 Ala. 66,173 So. 609
• Parties: STATE TAX COMMISSION et al. v. STANLEY.
• Court: Alabama Supreme Court

173 So. 609

234 Ala. 66

STATE TAX COMMISSION et al. v. STANLEY.

7 Div. 424

Supreme Court of Alabama

February 18, 1937

Rehearing Denied April 8, 1937

Appeal from Circuit Court, Cherokee County; A.E. Hawkins, Judge.

Petition in equity by Byron Stanley for injunction against the State Tax Commission, Henry S. Long, president of said Commission J.T. Tracy, as sheriff of Cherokee county, and E.S. Johnson as clerk of the circuit court of said county. From a decree for petitioner, respondents appeal.

Reversed and rendered.

A.A Carmichael, Atty. Gen., Walter J. Knabe, Asst. Atty. Gen., and Harwell G. Davis, Sp. Counsel, of Birmingham, for appellants.

Reed & Reed, of Centre, for appellee.

BROWN Justice.

The appellee, by a proceeding filed in the circuit court of Cherokee county, in equity, invoked the injunctive powers of the court to restrain the sheriff of said county from proceeding to execute the mandate of an execution issued by the State Tax Commission, commanding "any sheriff of the State of Alabama" to collect a penalty of $250 assessed against the appellee for having in his possession for sale unstamped cigarettes and snuff, in violation of section 15 of schedule 159 of the General Revenue Act of 1935. General Acts 1935, p. 543.

The sufficiency and form of the procedure adopted to quicken into exercise the court's jurisdiction is not questioned; nor is it approved here. The sole question presented is the constitutional integrity of the said section 15.

The circuit court ruled that said section 15 is repugnant to sections 5, 6, 11, 13, 15, 42, and 43 of the Constitution of 1901.

Said section 15 of schedule 159 provides:

"Persons failing to properly affix the required stamps to any cigars, cheroots, stogies, cigarettes, and smoking tobacco, chewing tobacco and snuff, shall be required to pay as part of the tax imposed hereunder, a penalty of not less than Twenty-five ($25.00) Dollars, nor more than Five Hundred ($500.00) Dollars, to be assessed and collected by the State Tax Commission, as other taxes are collected. And each article or commodity not having proper stamps affixed thereto as herein required shall be deemed a separate offense. Provided, that any cigars, cheroots, stogies, cigarettes, and smoking tobacco, chewing tobacco and snuff, in the place of business of any person required by the provisions of this Chapter to stamp the same shall be prima facie evidence that they are intended for sale: Provided, further, that if within ten (10) days and not thereafter, after notification in writing by the State Tax Commission, or its duly authorized agent, to the person, firm, or corporation, of its failure to properly affix the required stamps to any article or commodity, within ten (10) days after written notification to him that he has sold any article or commodity requiring stamps without having the stamps properly attached thereto as required by this Chapter, the party charged, or to be charged with such omission as herein provided, shall have the right within said time, and not thereafter, to demand a trial of the issue before a court of competent jurisdiction in the manner now provided by law for the trial of civil actions or civil suits. The written notice herein required may be served by mail. When it is so served, the paper must be deposited in the Post Office addressed to the person on whom it is to be served at his last known place of residence and the postage paid, and the ten days herein provided shall begin to run from the date of mailing. Said notice may also be personally served by any agent of the State Tax Commission, or any other person, by delivering the same to the person or corporation charged, or by leaving the same in the place of business of such person, or corporation; Provided, further, that the State Tax Commission, upon good cause shown may in its discretion remit a part of the penalties prescribed above herein, but in no case shall it accept less than the minimum penalty provided for each offense." (Italics supplied.) General Acts 1935, p. 543.

The clear purpose and intent of the provision italicized confers on the "party charged, or to be charged," the right to demand a trial of the issue, and when such demand is made within the ten days prescribed by the statute, this demand ipso facto arrests the proceeding of the tax commission, and deprives it of the power to proceed further in enforcing said penalty except by a civil action of debt in the name of the State, in a court of competent jurisdiction. Southern Car & Foundry Co. v. Calhoun County, 141 Ala. 250, 37 So. 425; McKenzie v. Gibson, 73 Ala. 204; Blackburn v. Baker et al., 7 Port. 284; State v. Fillyaw, 3 Ala. 735; Lewis v. Stein, 16 Ala. 214, 50 Am.Dec. 177.

The statute so construed does not violate any of the enumerated provisions of the Constitution.

Under section 139 of the Constitution it was within legislative competency to confer on the tax commission "powers of a judicial nature," authorizing that commission to assess...