Woco Pep Co. of Montgomery v. Butler

• Decision Date: 26 May 1932
• Docket Number: 3 Div. 2.
• Citation: 142 So. 509,225 Ala. 256
• Parties: WOCO PEP CO. OF MONTGOMERY v. BUTLER, CHAIRMAN OF STATE TAX COMMISSION, ET AL.
• Court: Alabama Supreme Court

142 So. 509

225 Ala. 256

WOCO PEP CO. OF MONTGOMERY v. BUTLER, CHAIRMAN OF STATE TAX COMMISSION, ET AL.

3 Div. 2.

Supreme Court of Alabama

May 26, 1932

Rehearing Denied June 18, 1932.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Suit by the Woco Pep Company of Montgomery against S. R. Butler, as Chairman of the State Tax Commission, and another. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Lange Simpson & Brantley and Ormond Somerville, Jr., all of Birmingham, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Frontis H. Moore, Asst. Atty. Gen., for appellees.

BROWN J.

The Legislature, by an Act approved July 27, 1931, entitled "An Act to impose, for the use and purpose of supervising, preserving, maintaining, constructing and regulating the use of public roads and bridges in the State of Alabama, and to maintain and supervise state convicts while working upon such roads and bridges, an excise tax on all persons, companies, agencies, corporations and associations who sell, distribute, store or draw from storage for any purpose whatsoever, gasoline or any other liquid motor fuels or devices or any substitutes therefor within the State of Alabama; providing for the collection of such excise tax and the payment of same into the State Treasury to the credit of the State Highway Department for the public road and bridge fund; providing for the enforcement of this Act and fixing a penalty for the violation of the provisions hereof; providing that the said excise tax so imposed shall be in addition to all other excise tax now imposed by law; and providing that freight agents of railroads and all agents of all transportation companies operating within the State of Alabama and who transport motor fuels, shall report to the State Tax Commission all shipments of gasoline or any substitutes therefor, received at any of their stations within the State," levied an excise tax of 1 cent per gallon, in addition to all other taxes levied on gasoline or other liquid motor fuels, on all distributors, retail dealers, and storers of such motor fuels in this state, as defined by the act. Gen. Acts 1931, p. 859.

The appellant, alleging that it was and had been for a number of years engaged in the business affected by said act, filed the bill in this case to enjoin the state tax commission and its agents from enforcing said act against it and collecting the tax thereunder, on the grounds that the act is violative of sections 45, 70, and 71 of the Constitution of 1901, and of the Fourteenth Amendment to the Federal Constitution.

The respondent demurred to the bill for want of equity and on specific grounds, among others, that the averments of the bill that the act violated the Constitution is the mere conclusion of the pleader. The demurrer was sustained and the complainant has appealed.

The questions presented will be considered in the order treated in appellant's brief, limiting consideration to the questions argued.

The first contention is that the effect of the statement in the title, "Providing for the collection of such excise tax and the payment of same into the State. Treasury to the credit of the State Highway Department for the public road and bridge fund," is to narrow and restrict the scope of the title and render the act broader than the title, with the result that the subject of the act is not clearly expressed in the title, as required by section 45 of the Constitution.

The argument is that the title so framed gives no clew to the provisions of section 2-A of the act, that the tax collected less cost of collection, after October 1, 1932, "shall be paid to the County Treasurer or the depository of the several counties in equal shares for a period of three years, to be used exclusively by said counties in constructing and maintenance of public roads and bridges within the several counties," and section 8 embodying a like provision as section 2-A, with the further provision that "the tax herein imposed shall cease and become inoperative on the first day of October, 1935"; and section 14-A providing, "that in the event an amendment to the Constitution authorizing the issue of new or additional bonds for the construction of public roads and highways be ratified, then, in that event a sufficient amount of the tax herein levied and collected shall be applied to the payment of interest on said bonds and to create and provide a sinking fund to pay said bonds." That these provisions constitute a substantial departure from the subject expressed in the title, rendering the title deceptive and misleading, and the act should be condemned as "hodgepodge or logrolling" legislations.

The subject dealt with by the act is an excise tax levied on the gallonage basis, and imposed on all persons engaged in the business of selling, distributing, storing, or drawing from storage for any purpose whatsoever, gasoline and other liquid motor fuels and all substitutes therefor within the state, for the purpose of "supervising, preserving, maintaining, constructing and regulating the use of public roads and bridges," in addition to all other taxes imposed by law on such occupations. Our judgment is that this subject is single and clearly expressed; that so much of the title and the provisions embodied in the act as related to the collection and disposal of the funds to be gathered from the tax, are subsidiary, germane, and cognate to the subject of the law, and therefore the act is not repugnant to section 45 of the Constitution.

The rule of our cases, applying this section of the Constitution, is, that "when there is fair expression of the subject in the title, all matters reasonably connected with it, and all proper agencies or instrumentalities, or measures, which will or may facilitate its accomplishment, are proper to be incorporated in the act, and, as usually said, are cognate or germane to the title." Lindsay v. United States Savings & Loan Association et al., 120 Ala. 156, 173, 24 So. 171, 176, 42 L. R. A. 783; First Nat. Bank v. Smith, 217 Ala. 482, 117 So. 38; Ham v. State ex rel. Buck, 156 Ala. 645, 47 So. 126; State ex rel. Ham v. Brock, Clerk, 180 Ala. 505, 61 So. 646.

The highway department and the several counties are made agencies of the state for carrying out the purpose of the act, and there is no departure from that purpose by the provision requiring the funds gathered by the tax to be paid to the several counties, after October 1, 1932. The same is true as to the provisions of section 14-A, authorizing the use of the revenue in part for the payment of interest on bonds issued for the construction and maintenance of public roads and bridges.

The same considerations expressed in First Nat. Bank of Eutaw v. Smith, supra, differentiating that case from the holding in First Nat. Bank of Evergreen v. Hagood, 206 Ala. 308, 89 So. 497, are applicable here, differentiating the case at bar from the Hagood Case.

The next contention is that the bill, which originated in the house, is a revenue bill, and was passed during the last five days of the legislative session, in violation of section 70 of the Constitution of 1901.

Section 31, article 4, of the Constitution of 1875 provided...