State v. Acacia Mut. Life Ass'n

• Decision Date: 15 April 1926
• Docket Number: 3 Div. 741
• Court: Alabama Supreme Court
• Parties: STATE v. ACACIA MUT. LIFE ASS'N.

108 So. 756

214 Ala. 628

STATE v. ACACIA MUT. LIFE ASS'N.

3 Div. 741

Supreme Court of Alabama

April 15, 1926

Rehearing Denied May 20, 1926

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by the State of Alabama against the Acacia Mutual Life Association. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading. Reversed and remanded.

Harwell G. Davis, Atty. Gen., F.D. McArthur, Sp. Asst. Atty. Gen and Chilton & McCoy and Steiner, Crum & Weil, all of Montgomery, for the State.

Roger J. Whiteford, of Washington, D.C., John V. Sees, of Huntington, Ind., and Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

GARDNER J.

Suit by the state to recover of the defendant, Acacia Mutual Life Association, statutory penalties for failure to pay taxes alleged to have been due for the years 1909 to 1922 inclusive. Count 1 is disregarded in argument and may be laid out of view. All of the other counts, 2 to 15, inclusive claim the penalty for each separate year. Demurrers of defendant were sustained to counts 1 to 9, inclusive, and this ruling presents the first matter here for consideration.

The years for which the taxes are claimed as due in counts 2 to 9, inclusive, are the years 1915 to 1922. The trial court evidently ruled against these counts upon the theory that the Revenue Acts of 1915 and 1919 were controlling, and that said acts did not prescribe a penalty for failure to pay this tax.

A reading of the provisions of these two acts, relating to the penalty here sought to be recovered, confirms this view; these acts in this respect being practically the same. Gen.Acts 1915, pp. 506, 507; Gen.Acts 1919, p. 415.

A penalty for a failure to pay the tax is not therein specified, and such statutes are to be strictly construed. But it is insisted that the penalty was provided in the Act of 1911, p. 164, for a failure to pay the tax, and that the concluding and repealing clause of the Act of 1915 (section 22) provides that all existing laws relating to taxation and revenue which are not in conflict with the provisions of the act are not repealed, and that therefore the penalty stipulated in the Act of 1911 remained in force, citing Ex parte State, 203 Ala. 444, 83 So. 334. The question is one of legislative intent. From a review of the act of 1915, it appears that the Legislature intended a restatement of the license and penalty provisions as to insurance companies. The penalty is specifically provided for default in filing such statements required, and other matters unnecessary to detail, but omitting any reference in this connection to the failure to pay the tax.

The intention, evidently, was to cover the entire subject as to insurance license and penalty. State v. Matthews, 209 Ala. 193, 95 So. 890.

Whether the omission was from design or oversight, we do not feel justified in supplying the penalty of the act of 1911 under these circumstances by such construction of the repealing clause. Entirely too liberal a construction would thus be given to a penal statute. We are in accord with the trial court in the ruling on demurrer to these counts.

Defendant pleaded the statute of limitations of five years (section 8945, subd. 2, Code 1923), and plaintiff's demurrer thereto was overruled. It is insisted this statute is void as in violation of section 100 of our Constitution. We do not construe this constitutional provision as intended to exempt the state from the bar of the statute of limitations. Statutory limitations against the state existed at the time of the adoption of the Constitution of 1901, and have continued to exist and be enforced. S.C. Co. v. State, 133 Ala. 624, 32 So. 235; Cox v. Board of Trustees, 161 Ala. 639, 49 So. 814; Ex parte State, 206 Ala. 393, 90 So. 871. The statute dealt with in Montgomery County v. City of Montgomery, 195 Ala. 197, 70 So. 642, cited in brief, was in fact a statute of nonclaim, differing in some respects from the statute of limitations. Yniestra v. Tarleton, 67 Ala. 126.

In Cox v. Board of Trustees, supra, it was said:

"No one can doubt the authority of the Legislature to make the statute of limitations apply to suits by the state."

The above-cited section of the Constitution was to guard against any favoritism by prohibiting the remittance, release, postponement, or diminution of any "obligation or liability of any person, association or corporation held or owned by the state, or by any county or other municipality thereof." The statute of limitations does not affect the debt itself, the "obligation or liability," but only bars the remedy (Jones v. Jones, 18 Ala. 248; Galliher v. State Mut. Life Ins. Co., 150 Ala. 545, 43 So. 833, 124 Am.St.Rep. 83), and clearly does not come within the purview of this section of our Constitution. This objection to the validity of the statute is without merit.

Nor do we think this subdivision (new to the Code of 1923, the work of the Code Committee) is in conflict with section 3 of the act adopting the Code (volume 1, Code of 1923, xxiii).

By section 12 of the Code it is provided that the revenue laws, and those relating to several named departments, be not incorporated in the Code, but may be published in pamphlet form, and are not to be considered repealed or affected by omission from the Code. The same purpose evidently was manifested in section 3 of the act adopting the Code and extending also to other subjects not embraced in the Code. Its object was to guard against any unfavorable effect that might otherwise result from the omission of these subjects, among them the revenue law, from the body of the Code. So construed, it requires no discussion to demonstrate there is no conflict between the adopting act and the limitation statute here considered.

It is further argued that the terms of the statute are not sufficiently broad to embrace suits for the recovery of penalties for failure to pay the tax. True, the statute only specifies "license, franchise taxes, or other taxes," and penalties for failure to pay...