State v. Matthews

• Decision Date: 05 April 1923
• Docket Number: 8 Div. 421.
• Citation: 209 Ala. 193,95 So. 890
• Parties: STATE v. MATTHEWS.
• Court: Alabama Supreme Court

95 So. 890

209 Ala. 193

STATE v. MATTHEWS.

8 Div. 421.

Supreme Court of Alabama

April 5, 1923

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Action by the State of Alabama against John V. Matthews. From a judgment for defendant, the State appeals. Affirmed.

Cooper & Cooper, of Huntsville, for the State.

R. E Smith and Lanier & Pride, all of Huntsville, and Percy Benners & Burr, of Birmingham, for appellee.

SAYRE J.

This action was brought by the state to recover a license tax on the business of dealing in futures under the provisions of chapter 45, art. 18, subsec. 47, of section 2361 of the Code of 1907. The state sought recovery for each of the years 1915 to 1921, both inclusive, and also the criminal penalty prescribed by law for having engaged in the business without a license. This subsection provides a license tax for engaging in the business of buying and selling futures for speculation, or on commission, and concludes: "But this subdivision shall not have the effect to legalize or authorize any business or contract, which would otherwise be invalid or illegal." This was a codification of Act of March 7, 1907, p. 464, which amended the Revenue Act of 1903 on the same subject. Acts, p. 207. On the same day, March 7 1907, was passed the act "to further regulate and prohibit the dealing in future contracts in the state of Alabama," the effect of which was to declare utterly null and void all contracts "whereby the parties thereto contemplate and intend no real transaction as to the article and thing agreed to be delivered, but only a payment of a sum of money or other thing of value, such payment and the amount thereof and the person to whom the same is to be paid to depend on whether or not the market price or value is greater or less than the price so agreed to be paid for the said article or thing at the time and place specified in such contract." Acts, p. 448, § 1. This last-mentioned act was limited to go into effect January 1, 1908. It also passed into the Code of 1907. None of the general revenue acts of 1911, 1915, or 1919, providing for license taxes among other things, contained any express provision on the subject-matter of subsection 47, supra; but the Acts of 1915, p. 433, and 1919, p. 451, repealed all laws in conflict therewith, and the act of 1915 further "provided, that all provisions of existing laws relating to taxation and revenues, which are not in conflict with the provisions of this act are not hereby repealed." Section 287. By an act approved September 25, 1915 (Acts, p. 913), contracts of sale for the future delivery of cotton and other commodities were regulated. But that act dealt with the subject of contract of sale for future delivery as contracts, and, as this court decided in Levy, Aronson & White v. Jones (Ala. Sup.) 93 So. 733, repealed by necessary implication sections 3349-3353 of the Code where the Acts of 1907, p. 448, had been in substance reproduced; but neither the decision in that case nor its ratio decidendi exerts any controlling influence on the question of the survival of section 6 (subsection 47, supra) of the act of the same date (page 464) levying a tax upon dealers in cotton futures. The two acts deal with distinctly different subjects of legislation; the one with future contracts, the other with the business of dealing in future contracts.

The license tax act of 1911, so far as concerned license taxes was nothing more than an amendment of the license schedule of the Code, and it cannot in reason be contended that it operated to repeal subsection...