Hooper v. State

HARALSON, J.

J: P. Hooper, the defendant, returned for the year 1.903 an assessment of personal property at |25,000.00. It consisted, as shown by the return, of “moneyed capital, that is, money lent, solvent credits, or credits of value, and all money employed in the business bf advancing, or pending on any kind of chattels, choses in action, or personal'property or used in buying or discounting notes, bonds or bills of exchange.”

The tax commissioner objected to this assessment, as being less than the actual cash value of the property returned, and made an additional assessment which was returned to the commissioners’ court, and notice thereof was given by him to the said J. P. Hooper, and the commissioners caused notice of the same to be issued and served on him. At the August term, 1903, the assessment by the tax commissioner was sustained. The order reads: “Ordered by tlie court, that the assessment be sustained as an additional assessment of $25,000.00, this August 12, 1903.’’ Thereupon, the said Hooper appealed to the circuit court, executing an appeal and supersedeas bond.

When the case reached the circuit court, the state filed a complaint as follows: “On appeal from the commissioners’ court. Fall Term, 1903. Comes the state by its solicitor and alleges that the raised assessment of taxes made by T. M. Patterson, Back Tax Commissioner of said county, on the 14th day of last July on the property of J. F. Hooper, a copy of which is hereto attached, is just, true and correct.”

The defendant moved to quash the proceedings on several grounds, which were overruled. Thereupon, he de-murrd to the complaint, on grounds, substantially, that it did not aver that the assessment was incorrect. The demurrer was overruled and on trial, the additional assessment of the commissioner was sustained, and judgment was rendered against him for $350.00, the amount of taxes on the original and increased, assessment.

The motion of the defendant to quash the proceedings, on grounds set up therefor, was not shown in the bill of exceptions, and cannot for that reason be here reviewed. Wilson v. State, 136 Ala. 114; Cottingham v. Greely, 129 Ala. 200; Randall v. Wadsworth, 130 Ala. 633. The judgment of the court overruling the demurrer was free from error. — T. C. I. & R. R. Co. v. State (Ante, p.) 37 So. Rep., 433.

This appeal is from the additional assessment imposed on the property by the Back Tax Commissioner, under section 10 of “An Act to provide for the more efficient assessment and collection of taxes,” approved February 21, 1899 (Revenue Code, 1900, p. 158). In the circuit-court the state filed a complaint as above set out. The burden was on the state to prove the fact alleged, which burden was assumed by the state. The issue to be determined in the circuit court was, therefore, whether the assessment made by the Back Tax Commissioner was just, true and correct.

Tbe defendant, J. P. Hooper, on tlie 14th of July, 1903, returned his property to the assessor, for assessment in the tax year 1902-3, as shown by the first paragraph of this opinion. This was in the language of section 3911 of the Code of 1896, subdivision 7. The same subdivision of said section appears in the Revenue Code, approved February 21, 1899.

By the Act of March 3rd, 1903, “To- provide for the revenue of the state,” (Acts 1903, p. 184), said last-named act amended said subdivision 7 of section 3911, by providing for what is termed “privilege taxes” on mortgages, deeds of trust or instruments in the nature of a mortgage, to secure the payment of any debt, and made no reference to taxation of solvent credits, (Acts 1903, p. 227). Said subdivision was omitted, and thereby repealed. This, however, was after the date of the return of the tax payer of his taxes for 1903. This assessment as returned by the tax payer and made by the assessor, was as of the 1st of October, 1902, on which date the tax year, ending Sept. 30th, 1903, began. The assessment begins Octobei 1; the fiscal tax year begins and the lien for taxes attached on that date. — Code, §§ 3911, 3920, 3921 and 3933. At that date, all the property described in said subdivision 7 was by the statute expressly subjected to taxation; and the money used in defendant’s business, lent out by him and invested in choses in action was taxable. The statute allowed no deduction for the tax payer’s liability, as had, at one time (Code 1896, § 453, sub. 7), been allowed. The repeal of said subdivision 7 of said section 3911 did not affect the liability of the tax payer, for taxes which had alreadv become a charge on his property. There was nothing in the repealing statute to indicate the intention that it Avas to be retroactive. “In general, Avhen a tax system is revised, with a repeal of the former laAv. it is safe to assume that the legislative intent is, that the new enactment shall be of prospective force only, and shall not disturb existing valid assessments.” — 1 Cooley on Taxation, pp. 21, 22.

The part of the oral charge marked B was correct. Bo-nds of the United States are exempt from taxation but money or property secured by a pledge of such bonds is taxable. — Savings Association v. San Francisco, 131 Cal. 356; Security Bank v. San Francisco, 132 Cal. 599.

Section 1, Art. 11, Const. 1875 (Section 211 of tiie Constitution of 1901) provides tliat all taxes levied on property in this state, shall be assessed in exact proportion to' the value of such property; and section 217 of the present Constitution (Const. 1875, Aid. 11, § 6) provides, that “the property of private corporations, associations and individuals of tins state shall be forever taxed at. the same rate.”

In State Bank v. Board of Revenue, 91 Ala. 217, the pciurt said in construction of these provisions, that “Whenever the legislature levies a tax on property, the rate must be in exact proportion to the value of such property; and that if a tax is imposed on any species of property, all property belonging to that species must be taxed at the same rate, whether it belongs to an individual, an association of persons, or to a private corporation.”

In West. U. T. Co. v. State Board, 80 Ala. 280, it was said: “It is not controverted, that the taxing power may select the subjects of taxation, and constitutionally classify them. Taxes should be imposed on any subject, in just proportion to the benefits and protection which such a subject receives more than other subjects of taxation. The rule of uniformity does not require that all subjects be taxed, nor taxed alike. The requirement is complied with, when the tax is levied equally and uniformly on all subjects of the same class and kind.”

In the 91 Ala. case, referred to it was held that “bank shares are neither money loaned, solvent credits nor credits of value; nor are the latter, bank shares. They are, each of them, a species and only a species of the generic class, moneyed capital,” and being of a different species of property from “shares of stock in an incorporated bank,” they may be reasonably grouped into separate classes, and different methods of assessments provided “Such classification may properly be used upon inherent difference in the natnre of various classes or upon want of adaptability to the same methods of. taxation, or it may be based upon well grounded considerations of public policy, and when the classification rests upon such grounds the court will not interfere.” 21 Am. & Eng. Ency. cf Law, ( 2nd ed.) 604; Commercial Bank v. Chambers, 182 U. S. 556.

There was no error in refusing the several instructions requested by defendant. They were intended, for the most part, to instruct the jury that defendant’s, solvent credits and money deposited Avith him and used in his business are not taxable property, and should ndt be assessed against him for the purposes of taxation, which Ave have seen is not a meritorious claim.

The motion for a neAV trial is not insisted on.

Affirmed.

McClellan o. j. ail(q Tyson and Dowdell, JJ., concurring.