State v. Dawson
| Decision Date | 02 August 1956 |
| Docket Number | 8 Div. 870 |
| Citation | 264 Ala. 647,89 So.2d 103 |
| Parties | STATE of Alabama v. N. H. DAWSON et al., d/b/a Merchants Candy & Notions Co. |
| Court | Alabama Supreme Court |
John Patterson, Atty. Gen., Willard W. Livingston and James R. Payne, Asst. Attys. Gen., for appellant.
John R. Barnes, Florence, for appellees.
This is an appeal by the State from a final decree of the Circuit Court of Lauderdale County, in Equity, vacating and setting aside a sales tax assessment made by the State Department of Revenue against the appellees, to whom we will refer sometimes hereafter as the taxpayer.
The question for decision here is whether the trial court was correct in holding that under the facts presented the taxpayer was entitled to the exemption provided by Act No. 587, approved August 30, 1951, Acts of Alabama 1950 and 1951, Volume 2, p. 1020. See Cumulative Pocket Part to Volume 7 of the Code of 1940, p. 371, where the provisions of the 1951 Act, supra, have been designated by the publisher as § 755(9), Title 51 Code of 1940.
The pertinent provisions of the 1951 Act, supra, read:
'The sales tax levied by section 753, Title 51, Code of Alabama (1940), as amended shall not be due or collected on account of the gross proceeds of sales of peanuts, peanut products, candy and chewing gum sold in dispensing machines located in industrial plants or on private property for employees where such machines dispense exclusively articles not to exceed ten cents (10c) per sale, provided that the person operating such machines shall be engaged in the business of selling exclusively articles not to exceed ten cents (10cents) per sale and shall file with the state department of revenue a sworn statement to that effect and shall keep and maintain records satisfactory to the state department of revenue.' (Emphasis supplied.)
For the purposes of this appeal it is agreed that the assessment involved is based only on sales of peanuts, peanut products, candy and chewing gum, made from dispensing machines operated by the taxpayer subsequent to the effective date of the 1951 Act, supra, which machines were located 'in industrial plants or on private property for employees' and that the machines dispensed exclusively articles which did not sell for more than ten cents a sale. It was also agreed that the taxpayer kept proper records and made the required statement.
But it is without dispute in the evidence that all during the period of time covered by the assessment the taxpayer was engaged in the business of selling at wholesale, articles which sold for more than ten cents per sale. It is because of this business activity that the State contends that the taxpayer is not entitled to the claimed exemption.
It is the theory of the taxpayer, accepted by the court below, that the part of the proviso of the 1951 Act which we have italicized above, operates to deprive a taxpayer of the exemption only where such taxpayer has been engaged in the retail business of selling articles for more than ten cents a sale. The argument in support of this theory is in substance that since sales at wholesale are exempt from sales tax, the legislature in enacting the said proviso was not concerned with a taxpayer's wholesale operations. The appropriate office of a proviso is to restrain or modify the enacting clause, or proceding matter. Touart v. American Cyanamid Co., 250 Ala. 551, 35 So.2d 484. The legislature, of course, has the right to restrict or limit the exemption provided in the act in such a manner and based on such conditions as it deems wise and proper.
To construe the exemption as contended by the taxpayer, it is necessary to prefix the word 'retail' to the word 'business' and we have said that the courts must confine themselves to the construction of the law as it is and not attempt to amend or change the law under the guise of construction. Holt v. Long, 234 Ala. 369, 174 So. 759; State v. Praetorians, 226 Ala. 259, 146 So. 411,...
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Tuscumbia City Sch. Sys. v. Pharmacia Corp.
...highly questionable that this court should even attempt to examine legislative intent when a statute is unambiguous [ State v. Dawson, 264 Ala. 647, 89 So.2d 103 (1956) ], the court nonetheless will review the legislative material cited to it, to determine the legislative intent. McDonald's......
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Smith v. Civil Service Bd. of City of Florence
...is to modify or restrict the preceding matter in the statute. Touart v. American Cyanamid Co., 250 Ala. 551, 35 So.2d 484; State v. Dawson, 264 Ala. 467, 89 So.2d 103. However, such exception should be strictly, though reasonably, construed, and extended no further than the language warrant......
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...is plain and unambiguous the statute should be given the meaning therein plainly expressed.' Id. at 508. See also, State v. Dawson, 264 Ala. 647, 89 So.2d 103 (1956) (when the language is plain and unambiguous and the meaning obvious, there is no room for construction). We find no ambiguity......