Eliasberg Bros. Mercantile Co. v. Grimes , 204 Ala. 492 ( 1920 )

While I agree, for reasons set forth in the opinion of SOMERVILLE, J., that the tax in question is controlled by section 214 of the Constitution of 1901, and cannot exceed 65/100 of 1 per centum, I am of the opinion that the provision of the act under consideration is only void as to the excess, and is not invalid in its entirety, as was held by the trial court. The excess can be stricken without impairing the purpose or integrity of the provision and without violating the legislative intent. The elimination of the rate in excess of constitutional limitation narrows rather than extends the operation of the provision. As the Legislature levied 2 per centum and over in certain instances, it unquestionably intended to levy as much as .65 of 1 per centum. Wiley v. Parmer, 14 Ala. 627; Ensley v. Cohn, 149 Ala. 316, 42 So. 827; Wilkinson v. Stiles,200 Ala. 279, 76 So. 45; State v. Davis, 130 Ala. 148,30 So. 344, 89 Am. St. Rep. 23, and cases there cited. The case of Wiley v. Parmer, supra, involved a tax in excess of constitutional restrictions, and the taxpayer was relieved from only so much of said tax as exceeded the limit. This case has never been overruled, but has been several times cited. But, as an original proposition, I would not have felt warranted in striking down this solemn legislative provision in its entirety, as it is conceded to be lawful and valid, except in so far as the rate exceeds constitutional limitations as fixed by section 214.

The case of Goodwin v. Birmingham, 82 So. 524,¹ cited and relied upon by counsel for appellee, is in no sense in conflict with this holding. That case involved an election for a 25 year tax for school purposes, and the issuance of bonds covering said period, etc., whereas, under the law, the tax could not have been levied except for a period of 10 years; and this court held, and properly so, that it could not say that the voters would have favored the tax levy, bond issue, etc., had they been given only 10 instead of 25 years within which to make school improvements and meet the incurred obligations.

It appears from the opinion of the majority that the elimination of the excess might do violence to the legislative intent and result in a judicial amendment of the act. In reply to this suggestion, I merely quote the last legislative expression as found in section 424 of the act, and which is conclusive on the court as to the legislative intent, notwithstanding the question of separability is one for the court, and to my mind the elimination of the excess would leave a complete enactment at .65 of 1 per centum. Said section reads as follows:

"If any section, clause, provision or portion of this act shall be held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause, provision or portion of this act which is not in and of itself unconstitutional."

I therefore dissent from striking down the provision in its entirety.

¹ 203 Ala. 274.