As we understand, the contention of appellees and the theory upon which the opinion of Justice GARDNER proceeds is that, in order for the appellants to inspect the books, etc., of the appellees, it must be for the purpose of obtaining material and relevant evidence in a pending legal controversy; that if the State Tax Commission had the authority to vacate the appellees' assessment and revalue and reassess its property, this would be a pending controversy, and it would not violate the Constitution, federal or state, by inspecting or requiring the appellees' books, etc., for the purpose of ascertaining the extent and value of its taxable property in an effort to properly reassess the same; that this is not a pending legal controversy, however, for the reason that the State Tax Commission had no authority to set aside the assessment and to revalue and reassess the same; that while paragraph "m" of section 138 of the Revenue Act of 1919 gives them this right, said paragraph nor any other provision of the act provides for notice to the taxpayer, and that said paragraph "m" is therefore unconstitutional and void.
The majority, for the purpose only of deciding this case, is willing to concede the hypothesis as presented by the theory of Justice GARDNER'S opinion, except as to the statement that paragraph "m" of section 138 is void. As to this, we cannot concur. We think, and so hold, that paragraph "m" of section 138 is not repugnant to the Constitution, federal or state, because of a failure of the act to prescribe notice to the taxpayer of the purpose to revalue or reassess his property. Section 2228 of the Code of 1907 provides for such notice, and we have held that the notice as there prescribed met all constitutional requirements, and was sufficient if given before the reassessment of the property by the State Tax Commission, and was only important in case the value was increased. State Tax Commission v. Bailey, 179 Ala. 620, 60 So. 913; State v. Doster-Northington Co., 196 Ala. 450, 71 So. 427. While the Revenue Act of 1919 purports to *Page 367 be a complete revision of the tax laws and to cover the entire subject, and would ordinarily operate, without a repealing clause, to repeal by implication all prior laws in conflict therewith, we think that the repealing clause of said act and its predecessors indicate a legislative intent to repeal only so much of the Code of 1907 as is in conflict therewith, and does not repeal such Code provisions not in conflict, and which may be essential to an efficient enforcement and administration of the revenue law, certainly not such parts of the Code as may be essential to give constitutional validity to the subsequent enactments. Bailey Howard, supra; Ex parte Smith, supra. It would be a reflection upon legislative intelligence to hold that by the present revenue law they repealed section 2228 of the Code without making provision for notice, after this court had held in the Bailey v. Howard Case, supra, that notice was essential, and cited and construed said section 2228 in connection with the reassessment of property by the State Tax Commission.
True, the repealing clause of the act of 1919 is not identical with the one in the act of 1915, and which was considered in the Smith Case, supra. But as used in the present law it expresses a legislative intent and purpose to repeal only so much of previous enactments as are in conflict therewith, and thereby indicates that it was not therefore intended as complete and exclusive, in and of itself.
"The rule that a later act, covering the whole subject of a prior one and embracing new provisions, plainly showing that it was intended as a substitute, operates by implication to repeal the prior act, is subject to the qualification that where the later act expresses the extent to which it is intended to repeal prior laws, as by a clause repealing all laws and parts of laws in conflict therewith, it excludes any implication of a more extended repeal." Great Northern R. R. v. United States, 155 Fed. 945, 84 C.C.A. 93.
This holding is not only proper, but in effect requires notice to the taxpayer before his property is revalued and reassessed by the State Tax Commission under paragraph "m" of section 138, and removes the constitutional objection to said paragraph as suggested in the opinion of Justice GARDNER. The Legislature evidently did not intend to cut off notice after this court had held it was essential, and must have intended that section 2228 was not repealed. Just as section 2229 fixes the time within which an appeal can be taken, paragraph "m" of section 138, for instance, provides for an appeal to the county commissioners or board of revenue, thus changing section 2229 of the Code as to the forum in which the appeal is to be heard, but it could not be logically held that the time limit was changed when the last enactment fixes no time.
We concede that certain portions of the demands are too broad and indefinite, and that they are erroneous in so far as they seek a production of the books, etc., to the State Tax Commission at the Capitol, as we think that the law contemplates that the revaluation and reassessment under paragraph "m" of section 138 and the hearing in connection therewith should be in the county in which the property to be reassessed is situated. This is manifest from the notice required by section 2228 of the Code of 1907. And in addition to this, it is apparent that the last enactment throughout contemplates that these tax controversies should be heard in the county where the property is situated. When the assessments are set aside by the State Commission as per the county, municipal, or precinct basis, it is to be reassessed by the local tax machinery, and while the State Commission is given the right to reassess after setting aside the individual assessments as covered by section 138 of the act, the law contemplates that the hearing should be by said State Commission in the county where the property is situated. Section 2228 not only contemplates this, but the present act authorizes and requires said Commission to visit the respective counties, and provides for its expenses being paid by the state. In other words, while the act, by sections 21, 148, and 417 are intended to afford the tax authorities all reasonable and necessary information and data in the assessment, adjustment, and equalization of taxes throughout the state, it was not intended that the taxpayers from all parts of the state should be compelled to transport their books, records, etc., to the Capitol at Montgomery, but should do so at the courthouses of the county in which the property is situated.
As above stated, some of the demands were too general, and the requirement that the books, etc., be brought to Montgomery was not authorized, yet the answer to the duces tecum, while questioning the right and authority as to time and place of delivery, also questions the general right or authority to demand the production, and therefore justified resort by the State Tax Commission to the courts to compel submission and obedience. While we think that the petition contained items and demands defective for reasons above set forth, it sought alternative relief, and the appellees' demurrer thereto was not directed against so much of the petition or the things sought as were improper, but were directed against the same in its entirety. In other words, there was no ground of demurrer raising the point against so much of the petition as sought the production of the books at Montgomery instead of Birmingham, or against such parts of same as were too general and indefinite, and as some of the demands were sufficient the trial court erred in sustaining the demurrer to the petition *Page 368 in its entirety. Moreover, the fact that the duces tecum was broader than it should have been did not relieve the parties from responding or from a contempt for failing to do so. Hale v. Henkel, 201 U.S. 43, 26 Sup. Ct. 370, 50 L.Ed. 652; Consolidated Co. v. Vermont, 207 U.S. 541, 28 Sup. Ct. 178,52 L.Ed. 327, 12 Ann. Cas. 658.
The judgment of the circuit court sustaining the demurrer to the petition and dismissing said petition is reversed, a judgment is here rendered, overruling said demurrer and setting aside the dismissal of the petition, and the cause is remanded, in order that the parties may proceed in conformity with this opinion.
Reversed, rendered, and remanded.
McCLELLAN, SOMERVILLE, THOMAS, and MILLER, JJ., concur.
SAYRE and GARDNER, JJ., dissent.