Opinion
1 Div. 780.
December 14, 1933. Rehearing Denied January 25, 1934.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Harry T. Smith Caffey, of Mobile, for appellant.
If plaintiff's claimed right to recover depends upon an unconstitutional statute, it has no cause of action. Shannon Co. v. McElroy, 3 Ala. App. 519, 57 So. 118; Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; State ex rel. v. Dillard, 196 Ala. 539, 72 So. 56; Ex parte Hines, 205 Ala. 17, 87 So. 691. In dealing with the commissions allowed tax collectors and assessors, the Legislature could not, as it undertook to do by the Acts of 1927 (pp. 622, 623), classify counties according to population, since section 96 of the Constitution requires uniformity throughout the several counties of the state, and requires that classification be applicable to all counties and not to a single class. Jackson v. Sherrod, 207 Ala. 245, 92 So. 481; Mobile County v. Byrne, supra; Vaughan v. State, 212 Ala. 461, 103 So. 38; Birmingham Elec. Co. v. Harry, 215 Ala. 458, 111 So. 41; Sloss-Sheffield S. I. Co. v. Brooks, 19 Ala. App. 107, 96 So. 81; Board of Revenue v. Kayser, 205 Ala. 289, 88 So. 19. Appellee cannot escape the influence of section 96 upon the theory that the lump sum allowance provided by the Acts of 1927 is a salary. Such allowance lacks essential elements of a salary. Brandon v. Askew, 172 Ala. 160, 54 So. 605; Dane v. Smith, 54 Ala. 47; Benedict v. U.S., 176 U.S. 357, 20 S.Ct. 458, 44 L.Ed. 503; Smith v. Jackson (C.C.A.) 241 F. 747; Id., 246 U.S. 389, 38 S.Ct. 353, 62 L.Ed. 788; Beach v. Kent, 142 Mich. 347, 105 N.W. 867; Merriam v. U.S. (C.C.A.) 282 F. 851; Code 1923, § 2713; Const. 1901, § 97, Amend. 2; Autauga B. T. Co. v. Allen, 220 Ala. 478, 125 So. 805; Vaughan v. State, supra; Houser v. Orangeburg County, 59 S.C. 265, 37 S.E. 831; Webster's New Int. Dict. A law regulates fees, commissions, or allowances of public officers when it relates to, acts upon, or touches such fees, commissions, or allowances. U.S. v. Adair (D.C.) 152 F. 737. The effect of the Jefferson and Montgomery county amendments to the Constitution was to amend or partially repeal or to create an exception to section 96, and thus to permit the fixing of salaries in lieu of fees, commissions, and allowances. Osborn v. Henry, 200 Ala. 353, 76 So. 119; Board of Revenue v. Kayser, supra; Birmingham Elec. Co. v. Harry, supra. These amendments were necessary to effect such purpose, and due weight must be given the legislative construction of section 96 in this regard. Board of Revenue v. Huey, 195 Ala. 83, 70 So. 744. The Acts of 1927 were local. They were not based upon a classification according to population made in good faith; the classification was not reasonably related to the purpose to be effected; and the acts could not automatically apply to every county upon reaching the requisite population, since two of them could not come within its influence without the repeal of constitutional amendments affecting them. Vaughan v. State, supra; Mobile County v. Byrne, supra; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; State v. Gullatt, 210 Ala. 452, 98 So. 373; In re Opinion of the Justices, 216 Ala. 469, 113 So. 584; Birmingham Elec. Co. v. Harry, supra; State v. Grayson, 220 Ala. 12, 123 So. 573; Kearley v. State, 223 Ala. 548, 137 So. 424. The Code provides a commission for the tax collector and assessor on all special county and district taxes levied for school purposes. Code 1923, §§ 3040, 3048. In fixing commissions on general taxes and on special taxes other than special county and district taxes, the basis is the amount of collections, but, in fixing commissions on special county and district school taxes, the basis is the tax as levied. The term "levied" is not the same as "collected"; it refers to the assessment, the amount due to be paid. Taxes levied include interest on delinquent taxes. Chicago R. Co. v. Klein, 52 Neb. 258, 71 N.W. 1069; Hodges v. Crowley, 186 Ill. 305, 57 N.E. 889; Lehigh V. R. Co. v. State Board; 101 N.J. Law; 298, 128 A. 432; Barnett v. Pension Com., 100 N.J. Eq. 473, 136 A. 317; State v. Jersey City, 42 N.J. Law, 97; State v. Security N. B., 139 Minn. 162, 165 N.W. 1067; Baker v. Supreme Lodge, 103 Miss. 374, 60 So. 333, Ann. Cas. 1915B, 547; Code 1923, § 3056.
Pillans, Cowley Gresham, of Mobile, for appellee.
An officer demanding commissions must point to some clear, definite, and specific statute authorizing such compensation. Statutes giving commissions are not to be extended beyond their letter; they are to be strictly construed as penal statutes. Tillman v. Wood, 58 Ala. 578; State v. Brewer, 59 Ala. 130; Troup v. Morgan County, 109 Ala. 162, 19 So. 503; Smith v. Bowers, 187 Ala. 406, 65 So. 819; Long v. O'Rear, 186 Ala. 558, 65 So. 59; Ex parte Mobile County, 200 Ala. 410, 76 So. 2. In assailing the Acts of 1927, appellant has the burden of showing their unconstitutionality beyond a reasonable doubt. It is the duty of the court to uphold the statutes if they are susceptible of two constructions, one of which will uphold and the other defeat them, though the adoption of the former may be less natural. The provisions of the Constitution are to be strictly construed. State v. Clements, 220 Ala. 515, 126 So. 162; State ex rel. v. Pitts, 160 Ala. 133, 49 So. 441, 686, 135 Am. St. Rep. 79; State ex rel. v. Greene, 154 Ala. 249, 46 So. 268; State ex rel. v. Board of R. R. Commissioners, 180 Ala. 489, 61 So. 368. The Acts of 1927 are in the same form as the clause of sections 3040 and 3048, relating to compensation of the assessor and collector in counties of more than 150,000 population, and are presumptively valid, having been approved in form and acted on repeatedly by the Legislature. Gen. Acts 1915, pp. 402, 408; Gen. Acts 1919, p. 342, § 197; Gen. Acts 1921, p. 48; Code 1923, §§ 3040, 3048. The Acts of 1927 are in neither form nor substance local laws. Cooper v. State ex rel., 226 Ala. 288, 147 So. 432; State ex rel. v. Thompson, 142 Ala. 98, 38 So. 679; State ex rel. v. Joseph, 175 Ala. 579, 57 So. 942, Ann. Cas. 1914D, 248; State ex rel. v. Thompson, 193 Ala. 561, 69 So. 461; Board of Revenue v. Huey, 195 Ala. 83, 70 So. 744; Stone v. State, 20 Ala. App. 69, 101 So. 58; State ex rel. v. County Commission, 224 Ala. 229, 139 So. 243. The services of the tax assessors and collectors in assessing and collecting special county school taxes are ex officio. Birmingham v. Hawkins, 208 Ala. 79, 94 So. 62. The Legislature in 1915 prohibited compensation to assessors and collectors for assessing and collecting such taxes, but it was competent for the Legislature in 1919 to provide compensation in such percentages as the county boards determined, within fixed limits. Gen. Acts 1915, pp. 402, 408; Gen. Acts 1919, p. 342; Birmingham v. Hawkins, supra. Section 96 of the Constitution does not apply to limit the Legislature with respect to allowances for ex officio services. Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; Vaughan v. State, 212 Ala. 461, 103 So. 38; Const. 1901, § 68; Brandon v. Askew, 172 Ala. 160, 54 So. 605; Code 1923, §§ 7265, 7280, 7282, 7285; Swindle v. Crocker, 217 Ala. 199, 115 So. 252. Abolition of commissions is not regulation thereof. State ex rel. v. Greene, 154 Ala. 249, 46 So. 268; Dunn v. Dean, 196 Ala. 498, 71 So. 709; Miller v. Jones, 80 Ala. 89; Ex parte Reynolds, 87 Ala. 138, 6 So. 335; Yahn v. Merritt, 117 Ala. 485, 23 So. 71; Ex parte Mayor, etc., 90 Ala. 516, 7 So. 779; Ex parte Cowert, 92 Ala. 94, 9 So. 225; Worthley v. Steen, 43 N.J. Law, 542; In re Opinion of the Justices, 232 Mass. 605, 124 N.E. 319; Madden v. State, 68 Kan. 658, 75 P. 1023; Investment Co. v. Trust Co., 65 Kan. 50, 68 P. 1089; Emporia v. Volmer, 12 Kan. 630; Johnson v. Philadelphia, 94 Miss. 34, 46 So. 526, 19 L.R.A. (N.S.) 637, 19 Ann. Cas. 103; Simpkins v. State, 35 Okl. Cr. 143, 249 P. 168. In view of the effective date of the acts, section 281 of the Constitution has no application. State ex rel. v. Gunter, 170 Ala. 165, 54 So. 283; Macon County v. Abercrombie, 184 Ala. 283, 63 So. 985. The commissions are to be calculated only on the collections actually made. East v. Eichelberger, 69 Ala. 187; Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523; Perry County v. Selma, etc., R. Co., 58 Ala. 546; Maguire v. Board of Revenue, 71 Ala. 401; County Commissioners v. Woodstock Ir. Co., 82 Ala. 151, 2 So. 132; Purifoy v. Godfrey, 105 Ala. 142, 16 So. 701; Code 1923, §§ 3040, 3048.
This is an action for money had and received, brought by the appellee against the appellant to recover money retained by the defendant as commissions out of special county and district taxes levied and collected for the purpose of maintaining the public schools of Mobile county. The complaint consists of the common count for money had and received as to each of the several items, and the plea was the general issue. The trial was by the court sitting without a jury, and the case was submitted on an agreed stipulation as to the facts.
The major item involved is $14,694.66, retained by the defendant, as tax collector, as his commission on the special county and district school tax deducted out of said taxes for the year 1930-31, under the provisions of section 3048 of the Code of 1923.
The contention of the plaintiff on the trial, and here, is that the act approved September 6, 1927, entitled, "An Act to fix the compensation of tax collectors, in counties of more than one hundred thousand population and less than one hundred and fifty thousand population according to the last Federal census or any subsequent Federal census, for collecting special county and district taxes now or hereafter levied for public school purposes" (General Acts 1927, p. 623), in legal effect amends said section 3048 of the Code, and governs as to the amount which the collector was entitled to retain $1,000, and that it is entitled to recover the taxes retained by the defendant, with interest, less $1,000.
The defendant, on the other hand, contends on the trial, and here renews the contention: (1) That said act of 1927 fixes an "allowance" for the services of the tax collector in collecting special county and district school taxes, not applicable to tax collectors of all the counties of the state, and, therefore, contravenes the provisions of section 96 of the Constitution of 1901 that, "The legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, or fees, commissions or allowances of public officers." (Italics supplied.) (2) That the classification is not reasonably related to the subject dealt with by the act, and is such as to designate rather than classify, and is a local law, and was enacted in violation of section 106 and subsection 24 of section 104 of the Constitution.
The counter contentions of the plaintiff, appellee here, are: (1) That the sum of $1,000 fixed by the act is a "salary," and therefore not within the influence of section 96 of the Constitution. (2) That the classification is reasonably related to the subject of the act and that it is a general, not a local law. (3) That being a "salary" and not within the influence of section 96, it was within legislative competency to abolish commissions for tax collectors and put them on a salary.
The language of the act is: "That in counties of more than one hundred thousand population, and less than one hundred and fifty thousand population, according to the last Federal census or any subsequent Federal census, no fees nor commissions shall be allowed to tax collectors for collecting special county and district taxes now or hereafter levied for public school purposes, but in lieu thereof the tax collector in such counties shall receive a lump sum of one thousand dollars which shall be retained by him from the taxes so collected by him. The tax collector shall also retain, from such taxes so collected, one thousand dollars as compensation to be paid to the tax assessor for his services rendered in assessing such taxes, and the tax collector shall pay over to the tax assessor the said sum of one thousand dollars so retained by the tax collector for the tax assessor; provided however, that this Act shall not take effect until the expiration of the terms of office of the tax collectors, in such counties, elected at the general election in November, 1926," followed by a repealing clause repealing conflicting laws. General Acts 1927, p. 623. (Italics supplied.)
At the time this act was passed, section 3048 of the Code provided for commissions on taxes collected, including general state and county taxes, special taxes, "whether such special taxes be levied for the state or county," and on special county and district taxes levied for school purposes.
The purpose and effect of the act of 1927, if it was constitutionally enacted into law, is not to abolish all of such commissions in the counties falling within the classification of the act, but to limit the commissions to state and county taxes, general and special, and abolish the commissions on a percentage basis on special county and district taxes levied for school purposes, substituting therefor a lump sum, and whether this lump sum be characterized as a "fee," "allowance," or "salary" (Autauga Banking Trust Co. v. Alien, 220 Ala. 478, 125 So. 805), it deals with, touches, and restricts, and therefore regulates the commissions of public officers in counties within the classification, and offends the letter and spirit of section 96 of the Constitution. 53 C. J. p. 1174, § 2; State ex rel. Meyer v. Greene, Judge of Probate, etc., 154 Ala. 249, 262, 263, 46 So. 268; Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; Vaughan, Probate Judge, v. State ex rel. Barker, 212 Ala. 461, 103 So. 38.
The mandate of section 96 of the Constitution is that "the legislature shall not enact any law not applicable to all the counties in the state" on the enumerated subject, and that means presently applicable when the law takes effect, not prospectively applicable by mere further growth; hence the classification attempted cannot be sustained. Vaughan, Probate Judge, v. State ex rel. Barker, supra. (Italics supplied.)
The suggestion is made that the effect of the act of 1927, relating to the compensation of tax collectors, was merely to amend the Code by further classification so as to include counties of 100,000 population and upward, and that if the classification in the Code is valid, the classification in the act must be sustained, otherwise both must fall. The answer to this suggestion is that the classification embodied as an exception in section 3048 of the Code only embraces a single county — Jefferson — and under the amendment (Amendment 2), which removed that county from the influence of section 96, that "the Legislature of Alabama may hereafter, from time to time, by general or local laws, fix, regulate and alter the costs, charges of courts, fees, commissions, allowances or salaries to be charged or received by any county officer of Jefferson County, including the method and basis of their compensation" (Michie's Code of 1928, page 87), might well have applied the exception to that county eo nomine.
In Henry, County Treasurer, v. State ex rel. Hartsfield, 218 Ala. 71, 117 So. 626, the court was dealing with a subject controlled by the above-quoted amendment, applicable only to the county of Jefferson.
Act No. 529 (General Acts 1927, p. 622), dealing with the commissions of tax assessors, is affected with the same infirmities as Act No. 532 (General Acts 1927, p. 623), and is likewise offensive to section 96 of the Constitution.
Another point in controversy between the parties is the basis on which the commissions allowed by sections 3040 and 3048 of the Code are to be calculated, and as to whether or not interest collected on delinquent taxes, special taxes arising from the assessment of automobiles, and special taxes on property sold and bought in by the state, are to be taken into account in computing commissions.
It is conceded that the rule of strict construction must be applied, and that the legislative intent is the essence of the law.
Appellant's contention is that the special county and district taxes levied for school purposes, whether assessed by the tax assessor or through the agency of the state tax commission, computed on the assessed valuation of the property, whether the taxes are collected or not — the gross levy — is the basis on which the commissions must be determined.
While the appellee contends that the assessor's commissions are to be predicated on taxes actually collected on assessments made by the assessor, as shown by the original abstract prepared by the assessor; that assessments subsequently made by the assessor, and assessments made by and through the agency of the state tax commission, property sold for taxes and bought in by the state, and the value of automobiles, are to be excluded from the computation.
When said sections of the Code (sections 3040, 3048) are interpreted in the light of related sections governing the assessment and collection of taxes, the legislative intent is clear that the commissions are allowed for services rendered, and the commissions are to be computed on the taxes — the money collected. Taxes on real estate sold for taxes and bought in by the state are treated as taxes collected. To quote from section 3040, "* * * the tax assessor shall be entitled to receive from the tax collector, out of the first money collected by him, giving him duplicate receipts therefor, one of which receipts shall be forwarded to the state auditor by the tax collector, the following commissions, to wit: In counties where the collections including taxes on real estate bid in at tax sales by the state," etc., then follows a classification of taxes and a graduation of the commissions on a percentage basis. (Italics supplied.)
And section 3048 provides: "The tax collector shall be entitled to receive commissions on taxes collected by him, including taxes on real estate bid in by the state at tax sale, as follows:" Then follows a like classification of the taxes, and the rate of commissions. (Italics supplied.)
The language stressed by the appellant to support his contention, "The tax assessor shall receive two per cent commission on all special county and district taxes levied for school purposes," is merely one of the classifications on which the graduated percentage operates, and does not indicate a different legislative intent from that first expressed in the statute. East et al. v. Eichelberger, 69 Ala. 187; Stewart v. Sample, 168 Ala. 270, 53 So. 182.
The assessor, however, is not entitled to commissions on taxes collected on assessments not made by him, but made through the agency of the state tax commission, on which commissions are allowed by law to the party who lists and assesses the property.
The foregoing is sufficient to indicate that the judgment of the circuit court, at least in some respects, is founded in error, and the judgment must be reversed. The facts as stated appear to be somewhat complicated, and proper judgment can best be rendered by the trial court, and the cause will be remanded.
Reversed and remanded.
All the Justices concur.