McNeel v. Stiles , 224 Ala. 181 ( 1931 )

The statute provides that after notice is given to delinquents to appear before the license inspector "and show cause why the license or privilege tax required by law has not been paid and if such license is due, then the license inspector shall cause the delinquent to appear before the probate judge of the county and take out the same. * * * For performing the duties required by this section, the license inspectors are entitled to be paid by the delinquent, in addition to the license, fifteen per cent. of the amount of thelicense so collected from each delinquent," etc. General Acts 1927, pp. 183, 184, § 72.

If the delinquent fails to pay the tax and take out a license, the inspector is authorized to institute criminal proceedings, and on each conviction is entitled to "fifteen per cent. of the penalty thereafter prescribed in such case." General Acts 1927, pp. 183, 184, § 72.

"Any person who is convicted of failing to take out and pay for the license required shall be fined not less than the amounts of all licenses required of him, and if convicted for refusing to take out the license shall on conviction, be fined not less than the amount of the State and county license due by him and not more than one hundred dollars in addition thereto," etc. Gen. Acts 1919, p. 443, § 367.

These statutes, being penal in their nature, must be strictly construed, and the construction is inescapable that the collection of the license tax in the first instance mentioned is essential to the assessment of the penalty of 15 per cent., the language of the statute being that the inspector is entitled "to be paid by the delinquent fifteen per cent. of the amount of the license so collected." (Italics supplied.)

If the inspector fails to collect and resorts to criminal prosecution, no provision is made for the 15 per cent. of the tax collected, but the allowance is 15 per cent. of the penalty assessed by the court as a punishment, and such punishment does not satisfy the claim for the tax, nor confer on the delinquent the right to do business without a license.

So, if appellee Cooper had resorted to a criminal prosecution, instead of giving notice, the appellant would not have been entitled to the percentage of 15 cents for collecting the tax, unless it was made to appear that the tax was subsequently paid in response to the notice given by the first inspector. Moreover, there is nothing in the record showing that Cooper had any knowledge that McNeel had previously issued citations to said delinquents, and in the absence of such knowledge it was his duty under the statute to issue citations to them.

The application is without merit and will be overruled.

Application for rehearing overruled.

ANDERSON, C. J., and THOMAS and FOSTER, JJ., concur.