It is with regret that I feel that I must dissent from the opinion of the majority of the Justices.
The first sentence of § 70 of the Constitution of 1901 provides: "All bills for raising revenue shall originate in the House of Representatives." Substantially the same provision is found in all our Constitutions, from that of 1819 to the last one in 1901.
In the case of Perry County v. Selma, Marion Memphis R. Co., 58 Ala. 546, Mr. Justice Stone (later Chief Justice) in discussing the background and the effect of this provision, said:
"* * * It has been suggested that this is a mere rule for the legislature, a disregard of which does not invalidate the law. It is known to the profession that this rule was adopted from the British constitution; and that it was engrafted thereon, because the House of Commons, in their Parliament, is the only popular department of their government, chosen by the people, and directly accountable to them. In that country, unlike the rule with us, it is the rule that the House of Lords can make no amendment of such bills, but must take them, without amendment, as they leave the House of Commons. This rule is guarded with sedulous care, and is treasured as fundamental, in the preservation of the subject's goods from unreasonable assessment and spoliation.
"With us the reason of the rule does not exist to the extent it does there, for each house of the legislature is elected by the people for a short term, and each is alike accountable to the popular will. But whether there be a reason for its maintenance or not, it has been a canon of the Federal Constitution from the date of its adoption, and of the Constitution of this State from the time of its birth. A rulethus sanctioned and preserved — thus imbedded in the verymarrow of our system — we feel not at liberty to disregard. * * * (Emphasis supplied.)
It was definitely decided in the decision of this court from which we have just above quoted that a bill which comes under the influence of the first sentence of § 70 of the Constitution and which originates in the senate is unconstitutional.
Obviously the bill here under consideration does not attempt to "raise revenue" in the sense that it purports to authorize additional taxation. However it has heretofore been decided that a bill whose chief purpose is to decrease revenue raised by other provisions of law also comes within the influence of the first sentence of § 70 of the Constitution.
In an advisory opinion rendered to the Senate of Alabama August 18, 1939 (238 Ala. 289, 190 So. 824, 825), the Justices of this court held that a bill introduced in the senate which had for its purpose the exemption of certain types of sales from sales tax was violative of § 70 of the Constitution.
It was there said: "Any bill, we think, whose chief purpose is to create revenue, or to increase or decrease revenue as created in another act is one to raise revenue and must originate in the House of Representatives under the first sentence in Section 70 of the Constitution." See Perry County v. Selma, Marion Memphis R. R. Co., supra.
The answer to your inquiry, therefore, depends on the answer to the question, What is the chief purpose of the bill here under consideration?
Unquestionably, if this bill becomes law it will result in a decrease in the revenue of the State of Alabama available for the *Page 392 public purposes for which the gasoline tax is now used. The law now in force exacts a tax of six cents on each gallon of gasoline used in tractors. When collected the money is used for certain enumerated public purposes. Section 647, Title 51, Code 1940, as amended. (See 1945 Cumulative Pocket Part) Under the bill here considered the same six cents would be collected, but five cents of it would be refunded to the taxpayer who paid it. The net result, therefore, would be that from the tax on gasoline used in tractors the State of Alabama would have only one-sixth as much revenue which it could devote to public purposes as under existing law.
The other five-sixths of the tax paid on gasoline used in tractors would find its way back into the pockets of the man who paid the tax and that is the chief purpose of this bill.
The bill contains a provision to the effect that its purpose is to promote agriculture. But how does it purport to aid agriculture? The answer is obvious: By reducing the tax burden of the farmer who uses tractors and, as before stated, that is the chief purpose of the bill. A reduction of his tax burden naturally results in a decrease of revenue to the State.
It is said that this is an appropriation bill, not a tax reducing bill, and consequently the first sentence of § 70 of the Constitution has no application. The bill does provide for an appropriation. But the money so appropriated comes out of the gasoline tax and is to be used for the sole purpose of refunding to the taxpayer who qualifies, five-sixths of the amount of gas tax paid by him on gasoline used in tractors.
Appropriation bills can, of course, originate in the senate and it is true that every appropriation bill reduces the amount of revenue which can be thereafter used for other purposes. But the appropriation here under consideration shows on its face that it was not made for any governmental purpose, but for the purpose of enabling the State to refund to taxpayers monies collected by the State but which were not intended to be retained and used in the public interest.
The mere fact that a bill carries an appropriation provision does not relieve it from the influence of the first sentence of § 70 of the Constitution. For example, it is clear that a bill which originated in the senate would violate such provision although it provided for an appropriation to a department of state government of a named sum of money to be used for a specified purpose, if it also authorized the levying of a tax for the purpose of meeting the appropriation. True, the illustration just used is where the bill purports to authorize additional taxation. But since the first sentence of § 70, as before indicated, also applies to bills whose chief purpose is to decrease revenue raised by other legislation, the illustration is here applicable as an answer to the contention that § 70 is not violated by the bill here under consideration merely because it contains an appropriation.
In my opinion the conclusion of the majority that the chief purpose of this bill is not to decrease the revenue of the State of Alabama by decreasing taxes, but is an appropriation bill, rings the death knell of this legislation if and when it is challenged on the ground that it is an appropriation of public monies to private individuals for nongovernmental purposes. The majority opinion does not say that such an appropriation is legal. It leaves that question unanswered. But I insist that the monies of the State of Alabama cannot be appropriated to farmers using tractors where there is no legal or moral obligation on the part of the State to do so. In other words, in my opinion the only way in which the appropriation involved in this bill can be upheld is upon the theory that the State has collected from the taxpayer money which it cannot legally retain because this bill operates to relieve the taxpayer from all but one cent of the gasoline tax on gasoline used in tractors.
In order to uphold the instant bill on the ground that it is an appropriation of State monies, it will have to be under the theory that the legislature of this state, in order to promote agriculture, may use State funds to in effect subsidize farmers. We have not come this far as yet. But this bill does not purport to provide a means of giving to the farmers of Alabama *Page 393 mechanized equipment. I am sure that many farmers would be benefitted if they had such equipment, although I am not willing at this time to say that such equipment can be furnished to them out of State funds. But if this is an appropriation, it appropriates State funds to those farmers who already have mechanized equipment, thereby increasing the advantage which they have already over their less fortunate neighbor, the man who makes his crop with a horse or mule. How can it be reasonably said that such is a legal appropriation?
Unquestionably the legislature has the right to provide for tax exemptions and if a bill of this nature is introduced in the house of representatives as a tax exemption bill, the possibility of attack on the ground above indicated would be avoided. But in spite of what I contend to be the obvious purpose of this bill, namely, that it is a tax reduction bill, the majority see fit to conclude to the contrary and rest their conclusion on the ground that the bill is an appropriation bill, thereby jeopardizing its constitutionality regardless of the house of the legislature in which it originates.
There seems to be no doubt but that this bill could not be legally introduced in the senate if it purported to amend the existing gasoline tax laws by exempting farmers from paying all of the tax now collectible on gasoline used in tractors except one cent. Perry County v. Selma, Marion Memphis R. R. Co., supra; In re Opinion of the Justices, 232 Ala. 95, 166 So. 807; In re Opinions of the Justices, 238 Ala. 289, 190 So. 824. And this would, of course, be true if the bill contained a statement that the purpose of the bill was to promote agriculture.
In the bill here under consideration, for administrative purposes and no doubt to prevent tax evasion, a method of refund is provided rather than exemption. The result is the same as if exemption had been provided. The State of Alabama is deprived of revenue and the taxpayer is relieved of a tax burden. I think it is clear that such is the chief purpose of the bill.
Nothing that I have said is to be construed as an expression as to the wisdom of such legislation. That is a matter for the legislature.
I am constrained to the conclusion that Senate Bill No. 122 violates § 70 of the Constitution.
BROWN, J., concurs.