In Re Opinions of the Justices , 225 Ala. 502 ( 1932 )

Response of the Justices of the Supreme Court to question propounded by the House of Representatives, under Code 1923, § 10290.

Question answered.

"House Resolution. "H. R. 166. By Mr. Sanderson.

"Be it resolved by the House, That the opinion of the Justices of the Supreme Court, or a majority thereof, is hereby requested upon the following important question:

"1. Is House Bill No. 449, imposing an occupational tax upon State and county officers, in whole or in part, violative of Sections 281 and/or 150 of the Constitution of Alabama?"

The title of the proposed act is as follows:

"A Bill to be Entitled an Act. "H. 449. By Mr. Harrison.

"To require and levy an occupation, license or privilege tax on every person who is an official of the State of Alabama, or who is employed by the State of Alabama, or by any department, agency, commission, board or institution of the State of Alabama, or who is an official of any county of the State of Alabama or an employee of any county, or of any agency, board, or commission of said county, or who is an official or employee of any municipality or of any department, agency, commission, or board of any municipality, and whose compensation, either from salary or fees, exceeds the sum of $1,200.00 per annum; to provide that the warrant, check or voucher for the payment of the salary of such official or employee shall be for the amount of the salary or compensation less the said tax and that where the compensation is by fees instead of salary the official or employee receiving such fees shall report the same and shall pay into the Treasury of the State, County or Municipality, the amount of the said tax, and to provide for the time of payment of such tax."

Response of the Justices. To the House of Representatives:

Replying to your House Resolution 166 inquiring as to the constitutionality of House Bill 449, which attempts to levy an occupation tax on the officers or employees therein mentioned, will say; Regardless of what our attitude or duty may be as a court in the event of a legal test of the question, or of any interest we may have in the outcome, we feel impelled to give you our individual opinion as to the information sought, since your resolution requesting same was adopted evidently with the knowledge that we are interested to a certain extent.

Section 150 of the Constitution expressly forbids the reduction of salaries of the judicial officers during their term.

Section 281 provides that the salary, fees, or compensation of any officer holding any civil office of profit under this state or any county or municipality thereof shall not be increased or diminished during the term for which he shall have been elected or appointed.

We may add that sections 68 and 118 also forbid the increase or decrease in the salary, fees, or compensation of certain officers.

It is manifest that any act expressly reducing the salary of the offices covered by the foregoing provisions would be plainly and palpably unconstitutional. So, the question is, Can these provisions be violated indirectly and evaded by clothing the reduction in the guise of an "occupation tax?" That which is forbidden directly cannot be done indirectly, and the law abhors evasions and subterfuges. The highest court of the land, in the case of Evans v. Gore, 253 U.S. 245, 40 S. Ct. 550,64 L. Ed. 887, 11 A.L.R. 519, has held that a constitutional provision forbidding the diminution of an officer's salary cannot be violated or ignored by the levy of a tax on or against said salary. We think that a careful reading of said case should not only convince the legal, but the lay, mind as well, that the act in question is not only violative of sections 150 and 281, but other provisions of our Constitution.

Signed this the 2d day of November, 1932.

JNO. C. ANDERSON, Chief Justice.

LUCIEN D. GARDNER, WILLIAM H. THOMAS, VIRGIL BOULDIN, JOEL B. BROWN, ARTHUR B. FOSTER, THOMAS E. KNIGHT, Associate Justices.