Opinion of the Justices , 1993 Ala. LEXIS 146 ( 1993 )

Members of the House of Representatives

Alabama State House

Montgomery, Alabama 36130

Dear Representatives:

We have received House Resolution 106, which requests our opinion as to whether H.B. 445 violates Amendment 93, as amended by Amendment 354, or any other provision of the Constitution of Alabama 1901. House Resolution 106 reads in part as follows:

“H. 445 imposes an additional ‘pump tax’ of $.003 per gallon on all sellers of motor fuel including motor fuel imported into the state, as it passes through the first pump in the state on the first withdrawal from bulk, excluding pumps used for pipeline transmission purposes. The tax is paid once with respect to the same product. The tax proceeds are distributed to the Underground Storage Tank Trust Fund established in Section 22-35-1, et seq., Code of Alabama 1975. The trust fund is used to investigate and correct contamination resulting from underground petroleum storage containers leaks.”

House Bill 445 reads as follows:

“A BILL

“TO BE ENTITLED

“AN ACT

“To amend Section 40-12-106, Code of Alabama 1975, regarding the annual privilege tax commonly referred to as the pump tax to provide an additional pump tax of $.003 per gallon of motor fuels passing through the first pump in the state, the revenues from which will be paid into Alabama’s Underground Storage Tank Trust Fund established in Section 22-35-1 et seq.; Code of Alabama 1975, as amended.

“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

“Section 1. Section 40-12-106, Code of Alabama 1975, is amended to read as follows:

Ҥ 40-12-106

“(a) Each person operating for profit a gasoline filling station or pump in cities or towns, or within three miles thereof, shall, on October 1, of each year, pay the following annual privilege tax: in cities of 100,000 inhabitants and over, where only one pump or filler is used, $28.00 and, for each additional pump, $21.00; in cities or towns of 40,000 inhabitants and less than 100,000 inhabitants, where only one pump or filler is used, $21.00 and, for each additional pump, $14.00; in cities or towns of 12,000 inhabitants and less than 40,000 where only one pump or filler is used, $18.00 and, for each additional pump, $10.00; in cities or towns of 5,000 inhabitants and less than 12,000, where only one pump or filler is used, $14.00 and, for each additional pump, $7.00; in incorporated towns of 1,000 inhabitants and less than 5,000, where only one pump or filler is used, $7.00 and, for each additional pump, $5.00; in incorporated towns of less than 1,000 inhabitants, $3.50 and, for each additional pump, $2.50; and in all other places, whether incorporated or not, $2.50 and, for each additional pump, $2.50.

“(b) In addition, the following additional privilege tax shall be imposed under this section: a pump tax in the amount of $.003 per gallon shall be imposed on all sellers of motor fuel as it passes through the first pump in the state on the first withdrawal from bulk, or which product is imported into the state, such pumps to exclude those for pipeline transmission purposes, and said pump tax shall be paid but once with respect to the same product. All revenues from this additional pump tax shall be paid to the Department of Revenue for credit to the Alabama Underground Storage Tank Trust Fund established in Section 22-35-1 et seq., Code of Alabama 1975, as amended. ‘Motor fuels’ as used in this section shall have the same meaning as such terms are defined in Section 22-35-3(9).

“ ‘(c) On or before the twentieth day of each month, the persons required to collect said additional pump tax shall pay the same to the Department of Revenue along with a true and correct statement of all motor fuels passing through the first pump in the state, excluding pumps for pipeline transmission purposes, for the next preceding calendar month, such statements to be on forms prescribed by the Commissioner of Revenue.’

“Section 2. This act shall become effective July 1, 1993, following its passage and approval by the Governor, or upon its otherwise becoming a law, and is contingent upon the passage of a house bill at the 1993 Regular Session amending the Alabama Underground Storage Tank Trust Fund statutes to receive the additional pump taxes levied in this act.”

(The emphasized portion is the material that H.B. 445 would add to § 40-12-106.)

Our opinion is that H.B. 445 violates Amendment 93 as amended by Amendment 354 of the Constitution of Alabama 1901. We, therefore, answer your question in the affirmative.

Amendment 354 of the Constitution of Alabama 1901 provides as follows:

“Amendment XCIII [93] to the Constitution of Alabama, as submitted November 4, 1952, and proclaimed ratified November 19, 1952, shall be amended so that said Amendment XCIII [93], shall read as follows:

“No moneys derived from any fees, excises, or license taxes, levied by the state, relating to registration, operation, or use of vehicles upon the public highways except a vehicle-use tax imposed in lieu of a sales tax, and no moneys derived from any fee, excises, or license taxes, levied by the state, relating to fuels used for propelling such vehicles except pump taxes, shall be expended for other than cost of administering such laws, statutory refunds and adjustments allowed therein, cost of construction, reconstruction, maintenance and repair of public highways and bridges, costs of highway rights-of-way, payment of highway obligations, the cost of traffic regulation, and the expense of enforcing state traffic and motor vehicle laws. The provisions of this amendment shall not apply to any such fees, excises, or license taxes now levied by the state for school purposes for this whole state or for any county or city board of education therein; and the legislature may provide for the manufacture, distribution and use on private passenger or pleasure motor vehicles of personalized license plates or tags, bearing some special letters, figures, mark or badge of distinction or personal prestige in lieu of the regular license plates or tags, and if it does so, the legislature must also require that such tags may be procured only by payment of a fee or charge, in addition to the regular fee, excise or license tax for the registration, operation or use of such motor vehicles upon the highways. The moneys derived from the additional charge made for such special or distinctive license plates or tags, in excess of the cost of the manufacture and distribution of such plates or tags, may be used in such manner as the legislature prescribes.”

H.B. 445 seeks to amend Ala.Code 1975, 40-12-106. This proposed amendment would impose an additional “pump tax” upon the sellers of motor fuels. The proceeds would be distributed to the Underground Storage Tank Trust Fund, which, according to H.R. 106, is used to investigate and correct contamination resulting from underground petroleum storage container leaks.

This Court has previously considered a very similar House Bill. In Opinion of the Justices No. 324, 511 So.2d 505 (Ala.1987), this Court determined that an act imposing certain fees upon motor fuels to be used to protect Alabama’s groundwater violated Amendment 354. This Court stated:

“Amendment 354 does not permit the imposition of a fee on motor fuels except for in very limited circumstances set forth in the amendment itself, and protection of groundwater is not one of these circumstances, even if the groundwater is harmed by the leakage of motor fuels from underground tanks.”

511 So.2d at 512.

A thorough reading of the proposed amendment to Ala.Code 1975, § 40-12-106, suggests that this “pump tax” is not a tax on the individual pumps of a seller. Money derived from a true pump tax could be used for the protection of groundwater contaminated by petroleum leaks. Calling a tax a pump tax does not make it a pump tax. The tax here imposes a $.003 per gallon tax on all sellers of fuels passing through the first pump in the state; thus, the emphasis is on the fuel, not the pump. A fuel tax can be used only for the limited purposes set forth in Amendment 93, as amended by Amendment 354. Therefore, H.B. 445 would be unconstitutional because it would violate Amendment 93, as amended by Amendment 354.

Respectfully submitted,

SONNY HORNSBY, Chief Justice ALYA HUGH MADDOX RENEAU P. ALMON JANIE L. SHORES OSCAR W. ADAMS, Jr. J. GORMAN HOUSTON HENRY B. STEAGALL, II KENNETH F. INGRAM Justices