State v. Television Corp., 6 Div. 328
| Decision Date | 02 March 1961 |
| Docket Number | 6 Div. 328 |
| Citation | 271 Ala. 692,127 So.2d 603 |
| Parties | STATE of Alabama v. TELEVISION CORPORATION. |
| Court | Alabama Supreme Court |
John Patterson, Atty. Gen., and Willard W. Livingston, Asst. Atty. Gen., for appellant.
Deramus, Fitts & Johnston and Jas. C. Barton, Birmingham, for appellee.
This is an appeal by the state from a decree in equity setting aside a use tax assessment and holding that certain machines are exempt from use tax under § 789(p), Title 51, Code 1940, as amended.
As amended by Act No. 210, approved July 12, 1949, Acts of 1949, page 300, the statute recites in pertinent part as follows:
'* * * 'The storage, use or other consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this article: * * *. (p) Machines used in mining, quarrying, compounding, processing, and manufacturing of tangible personal property; provided that the term 'machines,' as herein used, shall include machinery which is used for mining, quarrying, compounding, processing or manufacturing tangible personal property, and the parts of such machines, attachments and replacements therefor, which are made or manufactured for use on or in the operation of such machines and which are necessary to the operation of such machines and are customarily so used. * * *.'' The statute exempts from use tax machines '* * * used for * * * processing or manufacturing tangible personal property * * *.' The taxpayer contends and the trial court held that the instant machines are used in 'compounding, processing, or manufacturing tangible personal property' and, therefore, under the statute, are exempt from use tax. The state contends that the machines are not so exempt.
The machines involved are two television power amplifiers and two aural or sound power amplifiers used by the taxpayer in television broadcasting.
As stated in appellant's brief, all the evidence is of a technical nature. Appellant concedes: '* * * There is no conflict in the evidence * * *,' and that:
Without undertaking a technical discussion of the amplifiers, we note that each of them contains transformers and vacuum tubes. One expert witness defined a power amplifier as a device which provides at its out-power terminals a greater power than is supplied at its input terminals, thereby there is an increase in the power or there is power amplification, and amplification is customarily used in all installations for transmission of radio and television signals.
It is stipulated that each of the amplifiers in this case operates in the same manner and serves the same function as the power amplifier described in the testimony of Professor H. E. O'Kelley who testified as an expert witness. He described television transmission, vacuum tube operation, and amplifier operation in detail. Among other things, the statement prepared by Professor O'Kelley states:
* * *'
At another point he testified:
'
It is settled that electricity is tangible personal property within the meaning of that term in § 789, Title 51, Code 1940. Curry v. Alabama Power Company, 243 Ala. 53, 8 So.2d 521. In that case we held also that transformers are machines used in processing electricity. State v. Alabama Gas Corporation, 258 Ala. 356, 62 So.2d 454.
We are of opinion that the power amplifiers here involved are also machines used in processing electricity, and, therefore, are machines used in processing tangible personal property and exempt from use tax under § 789(p), Title 51, Code 1940.
We note that § 789, Title 51, Code 1940, has been amended since the decision in the Curry case in 1948. Act No. 210, 1949 Acts, supra. Subdivision (p), formerly (q), was re-enacted without change. Unless a contrary intent appears, the re-enactment of a statute which has been judicially construed is an adoption of the construction. United States Steel Corp. v. Goodwin, 267 Ala. 612, 104 So.2d 333.
We do not understand that the state seriously controverts the finding that the amplifiers are machines used to process tangible personal property. The state's brief recites: '* * * the writer of this brief * * * is thoroughly familiar with * * * the cases of Curry v. Alabama Power Company, 243 Ala. 53, 8 So.2d 521; State v. Calumet & Hecla Consolidated Copper Company, 259 Ala. 225, 66 So.2d 726; Southern Natural Gas Company v. State, 261 Ala. 222, 73 So.2d 731; and State v. Alabama Gas...
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...manufacture, processing and refining as used in Ind. Code 6-2-1-39(b)(6).2 In the more recent case of State v. Television Corporation (1961), 271 Ala. 692, 127 So.2d 603, the Alabama Supreme Court merely cited Curry v. Alabama Power Company, supra, and the statute discussed therein in findi......
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