Union Bank & Trust Co. v. Phelps
| Decision Date | 15 March 1934 |
| Docket Number | 3 Div. 98. |
| Citation | 228 Ala. 236,153 So. 644 |
| Parties | UNION BANK & TRUST CO. v. PHELPS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
Action by the Union Bank & Trust Company against R. C. Phelps individually and as Tax Collector of Montgomery County, to recover taxes paid under protest. From a judgment for defendant, plaintiff appeals.
Affirmed.
John S Coleman and Bradley, Baldwin, All & White, all of Birmingham for appellant.
Thos. E. Knight, Jr., Atty. Gen., and Frontis H. Moore, Asst. Atty. Gen., for appellee.
The appellant having paid under protest to the tax collector of Montgomery county the tax assessed against the shares of its capital stock for the tax year 1931-1932, brought this suit to recover the amount so paid to said official.
It is the contention of appellant that it was relieved and exempted from the payment of the ad valorem tax assessed against the shares of its capital stock for the 1931-1932 tax by an act of the Legislature, approved October 22, 1932, entitled:
"An Act to provide for the levy, assessment, payment and collection of an excise tax for the privilege of engaging in the State of Alabama in the business of banking and of conducting a financial business employing moneyed capital coming into competition with the business of national banks, to provide for the making of return for assessment of said tax, to prescribe the rate of such tax and the privileges and exemptions secured by its payment, to provide for the distribution of the proceeds of such tax to the State and to the several counties and municipalities of the State, penalties for failure to make such returns and for failure to pay said tax, and to exempt moneyed capital so employed and shares of corporations and associations which return and pay said excise tax from ad valorem taxation." Acts of Legislature, Extra Session 1932, page 107.
Section 6 of said act reads:
The contention of the appellee is that the said tax so assessed against the shares of appellant's capital stock had become a fixed liability against the appellant, in favor of the state, and that it was not within legislative competency to exempt the appellant from the payment of said tax; and that the legislation, as expressed in section 6 of the above-mentioned act, was abortive.
The only question here presented is, whether it was within legislative competency to exempt the appellant, bank, from the payment of the ad valorem tax on its shares, which by the law was taxable for the year 1931-1932. The solution of this question depends upon the proper interpretation and application of section 100 of the state Constitution. That it was the legislative purpose to do so, we are constrained to admit. That the Legislature is all powerful in such matters, except when prohibited by the Constitution, we readily concede.
Section 100 of the Constitution of this state reads: "No obligation or liability of any person, association, or corporation held or owned by this state, or by any county or other municipality thereof, shall ever be remitted, released, or postponed, or in any way diminished, by the legislature; nor shall such liability or obligation be extinguished except by payment thereof; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; provided, that this section shall not prevent the legislature from providing by general law for the compromise of doubtful claims."
It will be noted that this provision is new to the Constitution and became a part of our organic law with the adoption of the Constitution of 1901. This section was borrowed, body and soul, from the Constitution of Mississippi. And a singular coincidence is that the Mississippi provision is numbered section 100, just as ours is numbered section 100.
In construing this provision of the Constitution of Mississippi, the Supreme Court of that state, at its December term, 1897, held that taxes are a liability, within the meaning of section 100 of the Constitution, and could not be remitted or released after they had accrued. Morris Ice Co. v. Wirt Adams, State Revenue Agent, 75 Miss. 410-415, 22 So. 944.
It is a familiar rule of construction, that, when a statute, or constitutional provision, is borrowed from another state, the settled interpretation and construction placed thereon by the court of its nativity, before it is enacted into law here will ordinarily be applied by the courts here, since it is presumed that our lawmakers were familiar with that construction, and adopted the statute in that sense. Loveman, Joseph & Loeb v. McQueen, 203 Ala. 280, 82 So. 530; Steagall v. Sloss-Sheffield Steel & Iron Co., 205 Ala. 100, 87 So. 787; Ex parte Sloss-Sheffield Steel & Iron...
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...in some circumstances to include taxes. Shepard v. Commissioner of Internal Revenue, 101 F.2d 595, 598 (C. C. A. 7). Union Bank & Trust Co. v. Phelps, 228 Ala. 236, 238. Vicksburg Waterworks Co. v. Vicksburg Water Supply Co. Miss. 68, 72. State v. Leslie, 100 Mont. 449, 457. Ivester v. Stat......
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