6 Div. 475.
June 25, 1925.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
London, Yancey Brower and Clara Cain, all of Birmingham, for appellant.
A person who conducts a real estate business and offers money to loan, but does not loan his own money, is not engaged in loaning money. The schedule does not apply to brokers. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, L.R.A. 1918E, 639; City of Portland v. O'Neill, 1 Or. 218; French v. City of Toledo, 81 Ohio St. 160, 90 N.E. 160, 25 L.R.A. (N.S.) 748; Little Rock v. Barton, 33 Ark. 436; Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66. Acts of this character are subject to strict construction. U.S. v. Fisk, 3 Wall. 445, 18 L.Ed. 243; Cooley's Taxation, 199; Lock v. Miller, 3 Stew. P. 13; Cooley's Const. Lim. 479; Gunter v. Leckey, 30 Ala. 591. To exact both licenses of appellant would be double taxation, in opposition to the Constitutions, federal and state. O'Neill v. Sinclair, 153 Ill. 525, 39 N.E. 124.
F. D. McArthur, of Birmingham, for the State.
The schedule is constitutional. Maury v. State, 208 Ala. 46, 93 So. 802. Classification for purposes of taxation is a matter for the Legislature, and not for the courts. 6 R. C. L. 384, 401; 2 R. C. L. Supp. 106; City Council v. Nat. B. L. Ass'n, 108 Ala. 336, 18 So. 816; Lovejoy v. City of Montgomery, 180 Ala. 477, 61 So. 597.
This appeal involves an interpretation of schedule 101, Acts 1919, p. 430, and which is set out in the case of Maury v. State, 208 Ala. 46, 93 So. 802, wherein the constitutionality of same was upheld by a majority of the court. The court is of the opinion that said subdivision applies to all who engage in the business of lending money as an incident to the real estate business, whether as broker, agent, or for themselves, and therefore includes this appellant, who was engaged in the real estate business on commission, and who admitted that he accepted application for and negotiated loans for others and received compensation therefor.
The court is of the opinion that the provision is not repugnant to the Constitution because the license fee is based on a scalage basis proportionate to the population of the cities and towns.
All the Justices concur.