State Ex Rel. Smith v. Elba Bank & Trust Co.

The part of section 229 of the Constitution of Alabama, relating to a franchise tax on domestic corporations, reads as follows:

"The Legislature shall, by general law, provide for the payment to the state of Alabama of a franchise tax by corporations organized under the laws of this state, which shall be in proportion to the amount of capital stock; but strictly benevolent, educational, or religious corporations shall not be required to pay such a tax."

The revenue act of 1911 (Acts of 1911, page 170), in so far as it relates to a franchise tax on domestic corporations, reads as follows:

"All corporations organized under the laws of this state, shall pay annually the following franchise tax: * * * Provided that the provisions of this subdivision shall not apply to banks and banking institutions and building and loan associations regularly organized under the laws of this state or the United States, nor shall it apply to strictly benevolent, educational or religious corporations." Section 12.

The revenue act of 1015 (Acts of 1915, p. 397), in so far as it relates to a franchise tax on domestic corporations, provides in section 16 as follows:

"Every corporation organized under the laws of this state, except strictly benevolent, educational or religious corporations, or banks or banking institutions, or building and loan associations regularly organized under the laws of this state, or any other state, shall pay annually to the state an annual franchise tax of forty cents on each one thousand dollars of its paid-up capital stock."

The question presented by this appeal is whether or not the provisions of the Revenue Acts of 1911 and 1915 purporting to exempt domestic banking corporations from the payment of a franchise tax is in conflict with section 229 of the constitution above referred to, and, if so, whether or not domestic banking corporations are liable for the franchise tax for the years 1911 to 1920, inclusive.

Each of these revenue laws above quoted evidences an intent on the part of the Legislature to levy a franchise tax on domestic corporations pursuant to the constitutional mandate. They likewise evidence an intent on the part of the Legislature to exempt domestic banking corporations from the payment of such tax.

Unless restrained by constitutional limitation, the Legislature may exempt from taxation all kinds and classes of property, so long as the exemptions are uniform and equal (State v. Birmingham So. Ry. Co., 182 Ala. 475-490, 62 So. 77, Ann. Cas. 1915D, 436), but a constitutional restraint upon the power of exemption is binding upon the Legislature, and its plain requirements are not to be circumvented by finical reasoning.

Section 229 of the Constitution says the Legislature shall provide for the payment of a franchise tax by corporations organized under the laws of this state, but that strictly benevolent, educational, or religious corporations shall not be required to pay such tax. That means that the Legislature shall levy a franchise tax on all domestic corporations, except strictly benevolent, educational, or religious corporations, and that these and these only can be exempted from the payment of a franchise tax that the Constitution declares shall be imposed by the Legislature.

A positive, unambiguous direction in the Constitution as to what property shall be exempt includes an implied prohibition against the exemption of any other property by the Legislature. State v. Armstrong, 17 Utah, 166, 53 P. 981, 41 L.R.A. 407.

The universal rule of constitution is that exemptions from taxation, whether statutory or constitutional, are to be strictly construed against the exemption, and in favor of the right to tax, and no person or property is to be exempted, unless the intention to exempt such person or property clearly appears in some statute or constitutional provision. Anniston City Land Co. v. State, 160 Ala. 253, 48 So. 659. All that is so ably said by counsel for the appellee with reference to the right of the Legislature to select the subjects of taxation, and constitutionally classify them, and to exempt at its discretion so long as the exemptions are uniform and equal, finds undoubted support in the decisions of the Supreme Court of this state, and there can be no question about this being the law in this jurisdiction, in the absence of constitutional limitations or restraint, but the rule announced by these decisions has no field of operation here.

The organic law of the state requires the Legislature to provide for the payment of a franchise tax by domestic corporations, and exempts religious, benevolent, and educational institutions from the requirement, and no others. This court must give heed to the plain requirements of the Constitution, and we have no right to stray into mazes of conjecture in a search for imaginary purposes, or possible or even probable intent. State v. McGough, 118 Ala. 168, 24 So. 395.

A search for purpose or intention cannot be initiated, and construction is excluded, where the language used is so plain and unambiguous that there is nothing to construe. We are therefore of the opinion that the attempt to exempt domestic banking corporations from the payment of a franchise tax was unconstitutional and ineffectual under the constitutional provisions above referred to.

It is next insisted that if the attempted exemption in favor of domestic banking corporations is invalid, then the entire levy is void, because the statute would be materially different from that enacted by the Legislature, citing Vines v. State,67 Ala. 73, and McLendon v. State, 179 Ala. 61, 60 So. 392, Ann. Cas. 1915C, 691. In those cases, the Legislature was not under a solemn duty to levy the particular tax in question; and, not being under such duty, its intention, evidenced by its act, was to impose the tax there levied on the express condition that it should not operate on an exempted class.

In the case at bar, the Legislature was bound by its official oath to obedience to the Constitution, and thereby bound to provide for the payment of a franchise tax by domestic corporations. We must assume that the Legislature intended to perform its duty, and that it would not have declined to do so, had it been advised of its want of authority to exempt domestic banking corporations from the tax the Constitution made it the duty of that body to impose. We are of the opinion that the exemption of domestic banking corporations was not the express condition upon which this tax was imposed on others, but, on the contrary, the Legislature was attempting to perform its sworn duty under the Constitution, and in performance of that duty mistakenly attempted to exercise authority which it did not possess, viz. the authority to exempt corporations, other than the class named, from the payment of the tax imposed.

The appellee makes the contention that a franchise tax for the years 1911-1920 has not been levied on domestic banking corporations. We think this is without merit. The Constitution required it to be imposed. The Legislature undertook and intended to perform its duty. The fact that its attempt to exempt domestic banking corporations was void leaves its effort as the Constitution contemplated it should be, viz. the levy of a franchise tax on all domestic corporations except the exempted class named in the organic law. The law stands as if the Constitution had drawn a pen through the exemption in favor of banks and obliterated those words from the statute. Graves v. Eubank, 205 Ala. 174, 87 So. 587. Ex parte Cowert,92 Ala. 94, 9 So. 225. The rulings of the trial court are in conflict with our conclusion here, and, in our opinion should be reversed, and the cause remanded.

Response of Supreme Court.