Tanner v. State

• Decision Date: 23 May 1939
• Docket Number: 1 Div. 315.
• Citation: 190 So. 292,28 Ala.App. 568
• Parties: TANNER v. STATE.
• Court: Alabama Court of Appeals

190 So. 292

28 Ala.App. 568

TANNER v. STATE.

1 Div. 315.

Court of Appeals of Alabama

May 23, 1939

Rehearing Denied June 13, 1939.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

John (alias Shine) Tanner was convicted of failing to add sales tax to price of merchandise and to collect same from the purchaser, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Tanner v. State, 1 Div. 69, 190 So. 295.

H. M Aldridge, of Mobile, for appellant.

Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb and John W. Lapsley, Asst. Attys. Gen., for the State.

SAMFORD Judge.

The indictment in this case charged a violation of Section 24 of an Act of the Legislature (approved February 23, 1937) entitled "An Act to provide for the general revenue of the State of Alabama", and to repeal an Act entitled, "To be entitled an Act to amend an Act entitled, 'An Act to provide for the general revenue of the State of Alabama, approved July 10, 1935', by adding Schedule 155.4A and Schedule 155.4B to Section 348 of said Act, approved December 17, 1936." (Said Section to be found in General and Local Acts Alabama, Special Session, 1936-1937, Pages 125, 139.)

Section 24 of said Act reads as follows: "It shall be unlawful for any person, firm, corporation, association or co-partnership engaged in or continuing within this State in the business for which a license or privilege tax is required by this Act to fail or refuse to add to the sales price and collect from the purchaser the amount due by the taxpayer on account of said tax provided herein, or the amount due by said taxpayer on account of any taxes provided herein, or the amount due by said taxpayer on account of any taxes provided under this Act, or who shall refund or offer to refund all or any part of the amount collected, or absorb or advertise directly or indirectly the absorption or refund of said tax or any portion of the same."

The penalty providing for a violation of Section 24 is contained in Section 25 of said Act, which reads as follows: "Any person, firm, or corporation violating any of the provisions of Section 24 of this Act shall be guilty of a misdemeanor and upon conviction shall be fined in a sum of not less than Fifty ($50.00) Dollars nor more than One Hundred ($100.00) Dollars, or may be imprisoned in the county jail for not more than six months, or by both such fine and imprisonment, and each act in violation of the provisions of this Act shall constitute a separate offense."

Briefly stated, the defendant in this case for a number of years has owned and operated a general merchandise and grocery store on the outskirts of Mobile, Alabama, engaged, primarily, in the sale of groceries and other staple goods subject to the so-called "Luxury" or "Sales Tax", under the Act of the Legislature hereinabove cited. It is conceded and admitted that the appellant made sales in violation of Section 24 of the Act hereinabove set out, and that he refused to collect said tax from such purchasers as bought goods at his store; notwithstanding that, he paid to the State the amount of said tax due by and on account of such sales.

By demurrer, plea in abatement, and by proper charges, it is contended that the defendant is not subject to this prosecution for the reason that the Act, itself, is in violation of the Constitution of the State of Alabama and of the Fourteenth Amendment to the Constitution of the United States, U.S.C.A.

Both the appellant's and the State's counsel have filed elaborate briefs presenting their several contentions; but, as we view the case, the points raised have already been decided adversely to appellant's contention.

In Doby et al. v. State Tax Commission, 234 Ala. 150, 174 So. 233, 237, the Supreme Court of this State, dealing with the principal question here at issue, used the following language: "The mandatory provision in this section is for the benefit of the seller, but more particularly for the protection of all retailers charged with the payment of this tax. The lawmakers deemed it unfair competition for the strong to absorb the tax and build up his trade, at the expense of the weaker dealer who could not absorb it. So, the legal duty of the retailer, the taxpayer, is to pay the tax and also to collect a like amount from the purchaser. It is not a question of whether he should pay the tax, or, in the alternative, collect the tax for the state."

Finally, in the Doby case, supra, the Supreme Court makes the following finding: "Under section 24, it is the mandatory duty of the seller, the taxpayer, to pay the tax lawfully due under the act, and a like mandatory duty to add the amount thereof to the sales price and to collect same from the customer, subject to provisions of section 5 touching credit sales."

It is not for us to...