Opinion
3 Div. 787.
March 16, 1937. Rehearing Denied April 20, 1937.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Proceeding by N.D. Cunningham, doing business as Van Heynigen Brokerage Company, for a writ of mandamus to Charles W. Lee, as State Comptroller. From a judgment awarding the writ, respondent appeals.
Affirmed.
Certiorari granted by Supreme Court in Lee v. Cunningham, 234 Ala. 639, 176 So. 477.
In substance the petition shows the following:
Pursuant to demand made by the probate judge of Mobile county appellee paid to that official licenses for the years 1919 to 1931, aggregating $906 of which $585 was the amount due to the state, the balance being due the county. Appellee was not liable for such license and same was improperly demanded of him. In May, 1934, appellant filed a claim with the probate judge for a refund of the amount so paid, whereupon the probate judge duly certified the correctness of the facts set forth in appellee's claim, requesting the State Comptroller to draw his warrant on the state treasurer in appellee's favor in the sum of $585 and requesting the board of revenue and road commissioners of Mobile county to draw warrant on the county treasurer in favor of appellee for the balance. Warrant was drawn by the board of revenue and road commissioners in compliance with the request.
Thereupon appellee filed his claim with the state comptroller, for refund due by the state, which claim the comptroller denied on authority of an opinion by the Attorney General. Subsequently the Attorney General rendered an opinion contrary to the one formerly rendered, whereupon November 14, 1935, appellee again filed his claim with the comptroller, but the comptroller declined payment on the ground that the claim should have been filed before the close of the fiscal year, September 30, 1935, notwithstanding the claim had been filed as above shown.
In December, 1935, appellee filed a petition with the state board of adjustment seeking payment of his said claim, and the board of adjustment, by a majority vote, made an order approving and allowing the claim. Pursuant to said order application was made to appellant for a warrant in favor of appellee. Appellant denied such application or request. The prayer is that appellant be required to issue warrant pursuant to the finding of the board of adjustment or, in the alternative, pursuant to certificate of the probate judge.
By return to the rule nisi appellant asserts that the state board of adjustment was without jurisdiction to make the finding approving appellee's claim, such claim being a matter over which the courts of the state have jurisdiction; and further, that application was not seasonably made to the probate judge for refund.
A. A. Carmichael, Atty. Gen., and Silas C. Garrett, III, and Chas. L. Rowe, Asst. Attys. Gen., for appellant.
Claims for license taxes erroneously paid are enforceable in the courts, and the Board of Adjustment is without authority in such matters. Gen. Acts 1935, p. 1164, p. 256; Gen.Acts 1919, p. 282; Bigbee Fert. Co. v. Smith, 186 Ala. 552, 65 So. 37; Lovelady v. Loveman, 191 Ala. 96, 68 So. 48; Allgood v. Sloss-S. S. I. Co., 196 Ala. 500, 71 So. 724; Turner v. Anniston E. G. Co., 200 Ala. 89, 75 So. 465; Board of Revenue of Montgomery County v. So. Bell T. T. Co., 200 Ala. 532, 76 So. 858. A statute of limitations does not deprive a court of jurisdiction over a matter barred by the statute, since it is purely defensive matter and is waived unless pleaded. 37 C. J. 684; Russell v. Garrett, 204 Ala. 98, 85 So. 420; Pyle v. Pizitz, 215 Ala. 398, 110 So. 822; Teat v. Chapman Co., 1 Ala. App. 491, 56 So. 267; Jefferson County Sav. Bank v. Barbour P. E. Co., 191 Ala. 238, 68 So. 43. The privilege of securing a refund of taxes erroneously paid is a matter of grace and not of right. Gachet v. McCall, 50 Ala. 307; Ex parte State, 52 Ala. 231, 23 Am. Rep. 567; Raisler v. Mayor, etc., 66 Ala. 194; First Nat. Bank v. Jackson County, 227 Ala. 448, 150 So. 690. The Legislature may prescribe the conditions under which refund may be secured, and may change these conditions from time to time as it sees fit. Bers v. Arkansas, 20 How. 527, 15 L.Ed. 991. Re-enactment of statute for refund with amendment containing a new condition requiring application to be made within one year causes the statute to be construed as though it were originally enacted with its amended form. 59 C.J. 1096; First Nat. Bank v. Jackson County, supra.
Leo H. Pou, of Mobile, and Steiner, Crum Weil, of Montgomery, for appellee.
Application was made by appellee to the probate judge pursuant to the Act of 1919, p. 445, and the certificate of the probate judge issued pursuant to the statute is binding and conclusive, and the comptroller has no authority to question it. White v. Smith, 117 Ala. 232, 23 So. 525; Board of Revenue of Montgomery County v. So. Bell T. T. Co., 200 Ala. 532, 76 So. 858; Lovelady v. Loveman, 191 Ala. 96, 68 So. 48; Bigbee Fert. Co. v. Smith, 186 Ala. 552, 65 So. 37. Even statutes of limitations are not construed to be retroactive unless it appears clearly that it was the legislative intent that they should be retroactive. Bradford v. Barclay, 42 Ala. 375.
The way this appeal comes before us, we believe it may be said to be admitted that petitioner (appellee), through error of the probate judge of Mobile county, had paid to the state during the years from 1919 to 1931 (both inclusive) sums of money for "licenses" which he was not due to pay. And that on May 10, 1934, he made application to said probate judge for a refund of said amounts — in all respects according to the then applicable law — Sections 375 and 376 of the act of the Legislature of Alabama, approved September 15, 1919, Gen. Acts Ala. 1919, pp. 282, 445, procuring from said probate judge on said date "such certificate as will [would] enable the State Auditor [Comptroller, here] * * * to draw his warrant, or * * * order," etc.
Before petitioner procured said "warrant, or order," and on October 1, 1935, and while, we believe, it may be said, petitioner's claim was still "inchoate," the applicable law above cited was changed (Gen. Acts Ala. 1935, pp. 256, 563, 564, §§ 366 and 367). But the only change, as we read the sections, aside from the substitution of "State Comptroller" for "State Auditor," was by striking out a clause from a sentence in the first of the two sections — which clause is immaterial to our discussion — and inserting in its place a clause which reads: "And the provisions of this section (and, perforce, the following section) shall apply only to cases when application for refund is made within one year from date such license is alleged erroneously to have been paid." In other words, from and after October 1, 1935, there was, nowhere in the courts of the state, a forum in which petitioner could have his claim adjudicated — no application for a refund having been made by him "within one year from (the) date such license (was admitted) to have been paid."
It seems that the whole matter of procuring a refund of licenses erroneously paid, such as gave rise to the instant proceeding, is one of legislative grace, and that it was within legislative competency to take away the "jurisdiction of the courts" with reference to petitioner's claim, even if it be said that, when his application to the probate judge of Mobile county was made, the "courts had jurisdiction," at any time it chose. And petitioner could not complain his claim being still "inchoate." See First National Bank of Scottsboro v. Jackson County 227 Ala. 448, 150 So. 690.
We read the sections cited, of the act, above, which went into effect on October 1, 1935, as doing more than merely providing a "limitation of one year" within which rights given thereby must be asserted (claimed). We are persuaded that the situation presented is not that governed by the law that "a statute of limitations, to be available, must be pleaded" (See Russell v. Garrett, 204 Ala. 98, 85 So. 420); but that, the fact that the application must be made "within one year from date such license is paid" is jurisdictional. If said application is not so made, no jurisdiction exists.
Here, it is shown that the application" was made "within the law" at the time it was made. What might otherwise appear as "laches" on the part of petitioner, which, according to an expression in some of the cases, could perhaps affect our holding, is amply explained, and, we think, excused by the admitted averments of the petition.
All "semblance" of jurisdiction of the courts having been removed on October 1, 1935, we are of the opinion that, when petitioner's claim was, in the month of December, 1935, filed with the state board of adjustment, it came squarely within that class of claims which said board of adjustment (Gen. Acts Ala. 1935, p. 1164) was created to adjust.
Consequently, we are of the opinion, and hold, that the award made to petitioner by said state board of adjustment was without defect open to question by the state comptroller.
The judgment appealed from is affirmed.
Affirmed.