Nachman v. State Tax Commission

The question presented by this appeal is the constitutionality of the act entitled "An Act To amend an Act entitled 'An Act To provide for the general revenue of the State of Alabama, approved July 10, 1935,' by adding Schedule 155.4A and Schedule 155.4B to Section 348 of said Act." (Italics supplied.)

The amendment consists of tacking onto said section 348 two schedules levying a tax of 1 1/2 per cent. on gross sales of the businesses of persons therein specifically designated.

Neither the act "providing for the general revenue of the State of Alabama," nor the provisions of said section 348 of said act, are "re-enacted and published at length."

One insistence here is that the act violates that part of section 45 of the Constitution which provides that "no law shall be revived, amended, or the provisions thereof extendedor conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shallbe re-enacted and published at length." (Italics supplied.)

The conclusion is unescapable that the title to the bill indicated that the act was purely amendatory. It did not indicate that the act was to be original in form and purpose nor could it be determined from the act what the subject of the enactment was to be. It could be inferred only from its reference to the general revenue bill that it related in some way to revenue, but whether its purpose was to impose an additional tax, to grant an exemption, or apply revenues already provided for to a specific purpose, was in no way indicated. When thus analyzed, it seems to be clear that the subject of the act was not clearly expressed.

The following pertinent statement of the annotator under section 45 of the Constitution of 1901 is here reproduced: "In the early history of legislative enactments in the United States the titles of acts were considered no part of them. They were usually affixed by the clerk of the house in which the bill was introduced or first passed. They were merely intended to indicate the clerk's understanding of the purpose or object of the bill, and not the opinion of the house. This condition led often to a chaotic mass of legislation called hodge-podge or log-rolling legislation, to prevent which most of the state Constitutions now contain provisions designed to prevent such legislation, as well as to prevent surprise or fraud upon the legislature, by means of provisions in bills of which the title gives no intimation, and for that reason might be carelessly or unintentionally enacted, and in order that the people might know the character and purpose for which measures were introduced, that they might have the opportunity of being heard by petition or otherwise. — Cooley Const.Lim. 170-173."

One of the major purposes of the quoted provisions of section 45 of the Constitution was to prevent tacking, hodgepodge legislation, the very course pursued in the enactment of the act in question.

In order for the legislators or the people to ascertain what the effect of the proposed act was, and whether or not it was germane and cognate to section 348 of the original law, said original law must be looked up and examined. The constitutional provision quoted was intended to avoid such necessity by requiring the act as amended, or, at least, the section amended, to be set out in full — to prevent tackinglegislation.

In the cases cited in the majority, to wit, Ex parte Pollard,40 Ala. 77, City Council of Montgomery v. Birdsong, 126 Ala. 632,28 So. 522, and State ex rel. Terry v. Lanier, 197 Ala. 1,72 So. 320, the acts dealt with were original in form under a general title, and were not amendatory.

The acts involved in Harris v. State ex rel. Williams et al.,228 Ala. 100, 151 So. 858, and Tyler v. State, 207 Ala. 129,92 So. 478, were amendatory, and by reference to the acts it appears that the sections of the acts amended were re-enacted and published at length as required by the Constitution.

The act dealt with in Southern Railway Co. v. Mitchell,139 Ala. 629, 37 So. 85, was original in form, not an amendatory act.

The only answer to the appellants' contention in this case is that section 45 of the Constitution is not applicable to acts for raising revenue or revenue bills, and the majority refuse to so hold.

It is pertinent here to note that while said section of the Constitution excepts "general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes" from the second clause of the section, it does not except such laws from the last clause which I have quoted at the head of this opinion. And not having done so, it is clear that it was intended to apply.

I regret to have to dissent from the views of my Brothers, but to yield on questions of such importance would be to surrender my intellectual integrity [that is, such as I possess], and this I cannot persuade myself to do. The decision of the majority, in my opinion, is just another step in emasculating the provisions of section 45 of the Constitution.

In my judgment the act violates the Constitution and is null and void.

I therefore respectfully dissent.