In Re Opinion of the Justices , 249 Ala. 389 ( 1947 )

Questions propounded by the Senate to the Justices of the Supreme Court under Code 1940, Title 13, § 34.

Questions answered.

Senate Resolution No. 33. By Messrs. Allen and Coleman Whereas, there is now pending in the Legislature of Alabama Senate Bill 122 by Messrs. Henderson, Hardwick, Kendall and Clayton which provides for a refund of a portion of the State tax paid on gasoline when the gasoline is used in tractors used exclusively for agricultural purposes; and

Whereas, in view of the opinion of the Justices of the Supreme Court of Alabama as set forth in Re Opinions of the Justices No. 56, 238 Ala. 289, 190 So. 824, reasonable doubt exists as to the constitutionality of said Senate Bill 122 inasmuch as said Bill originated in the Senate; and

Whereas there is involved an important concrete constitutional question of a general public nature which entitles this body to invoke the provisions of 1940 Code of Alabama, Title 13, Section 34, with reference to obtaining a written opinion of the Justices of the Supreme Court of Alabama, or a majority thereof, on important constitutional questions, now, therefore:

Be It Resolved by the Senate of Alabama that the Justices of the Supreme Court of Alabama, or a majority thereof, are hereby respectfully requested to render this body their written opinion, as provided under said Title 13, Section 34, as to whether said Bill, a copy of which is hereto attached marked "Exhibit A" and made a part hereof, offends or is in conflict with that part of Section 70 of the Constitution of Alabama which provides in part "All bills for raising revenue shall originate in the House of Representatives."

I hereby certify the above Resolution was adopted by the Senate of Alabama July 24, 1947.

(Signed) J. E. Speight J. E. Speight Secretary of the Senate

Senate Bill 122 is in pertinent part as follows:

A Bill To Be Entitled An Act To provide for a refund of a portion of the State tax paid on gasoline when the gasoline is used in propelling or operating tractors used exclusively for agricultural purposes; prescribing a procedure for effecting refunds; authorizing the Commissioner of Revenue to issue permits and make rules and regulations to administer the Act; defining violations of the Act and prescribing penalties therefore.

Be it Enacted by the Legislature of Alabama:

Section 1. The purpose of this Act is to promote agriculture in Alabama, and to encourage and foster the progress of the farmers of this State by making it possible for them to use extensively mechanized equipment in competition with the farmers and agricultural interests of surrounding states.

Section 2. As used in this Act, "refund gasoline" means gasoline used as motor fuel for operating or propelling tractors used exclusively for agricultural purposes.

Section 3. Subject to the conditions set forth in this Act, a person who purchases gasoline as defined in Section 646 of Title 51 of the 1940 Code in quantities of 50 gallons or more at any one time for use in operating or propelling tractors used exclusively for agricultural purposes is entitled to a refund of five cents of the State excise tax paid on each gallon of gasoline so purchased and used. The right to receive a tax refund is not assignable.

To the Senate of Alabama, Montgomery, Alabama.

Sirs:

Your resolution No. 33 directs our attention to the question of whether Senate Bill 122 now pending in the Legislature "offends or is in conflict with that part of Section 70 of the. Constitution of Alabama, which provides in part 'all bills for raising revenue shall originate in the House of Representatives.' "

We have heretofore expressed the opinion that an act to amend an existing act whose purpose is to raise revenue by which the amount to be collected under the latter act as amended is decreased or increased, is an act to raise revenue and by the terms of section 70 must originate in the House of Representatives. In re Opinion of the Justices, 238 Ala. 289,190 So. 824; id. 232 Ala. 95, 166 So. 807; Perry County v. Selma, Marion Memphis R. Co., 58 Ala. 546.

If the proposed act affects the amount of revenue which flows into the State treasury, either as an original measure, or as an amendment to one already in existence, it is one to raise revenue as provided in the first part of section 70. A "revenue bill" under the last sentence of section 70 is more restrictive. In re Opinion of the Justices, 223 Ala. 369,136 So. 589.

The legislature may make an appropriation payable upon certain conditions prescribed by it and impose the duty on some designated authority to determine whether those conditions have been met by some person making claim thereto. In re Opinion of the Justices, 244 Ala. 386, 13 So. 2d 674; Hawkins v. State Board of Adjustments, 242 Ala. 547, 7 So. 2d 775.

The legislative restriction as to the house in which bills to raise revenue shall originate is as we have noted provided by section 70 of the Constitution: the legislative restriction on the power to make appropriations is provided by section 72, and there is no requirement as to the house in which it shall originate. The former relates to the receipt of revenue: the latter to its disposition. All appropriations are payable out of revenue. It is nonetheless an appropriation though required to be paid out of a certain fund in the treasury, or makes a disposition of certain tax revenue different from that provided in the act raising the revenue. State ex rel. Franklin County v. Hester, 224 Ala. 460, 140 So. 740.

So that the question is whether Senate Bill 122 is an exemption from an existing tax, or is an appropriation payable out of revenue thus derived. Its language is that of an appropriation. The person intended to be benefited, along with all other purchasers, must first pay the tax. The bill furnishes machinery whereby certain persons who comply with its requirements may obtain a refund. We do not think that a provision of law for refund of taxes as by Title 51, sections 328, 332 and 890, Code, should be regarded as a revenue measure under section 70 of the Constitution, but rather as an appropriation under section 72 of the Constitution.

We think therefore that proposed Senate Bill, 122, supra, is not a bill to raise revenue which must originate in the House of Representatives under section 70 of the Constitution.

Respectfully submitted,

ARTHUR B. FOSTER, J. ED. LIVINGSTON, ROBERT T. SIMPSON, DAVIS F. STAKELY, Associate Justices.

Looking through form to substance, I am fully persuaded the bill is one to exempt from taxation, and as such should originate in the House.

The authorities are noted in the foregoing opinion of Justice LAWSON and there is no occasion to reiterate the reasoning therein employed, as I am in full accord therewith so far as relates to the inquiry here propounded.

The matter of the constitutionality of the bill viewed as an appropriation bill, is not embraced in the inquiry, nor do I consider that the bill can be properly so interpreted. I therefore see no occasion for a consideration of that question and of consequence withhold comment thereon. Otherwise I fully concur with the opinion of Justice LAWSON.