McLendon v. State

SOMERVILLE, J.

The Court of Appeals certifies to this court for determination the following question:

Is section 33% of the present Revenue Law (Laws 1911, p. 181), which section reads as follows: “Any person engaged in the practice of law, medicine, osteopathy, dentistry and veterinary surgery and any optician, architect, actuary, public accoúntant, civil engineer, mechanical engineer, or electrical engineer, having a place of business and charging for his services, shall pay an annual license for the state only of five dollars ; provided ex-Confederate soldiers who are entitled to practice any of these professions in Alabama shall not be required to pay this tax. Provided further, that no person shall be required to pay this tax until after he has practiced his profession for one year”— violative of the Constitution of the State of Alabama, and violative of the Constitution of the United Staes?

1. We have considered the quoted section in connection with the following provisions of the Constitution of 1901, viz.:

Section 1. “All men are equally free and independent,” and among their inalienable rights “are life, liberty and the pursuit of happiness.”

Section 6. No accused person shall “be deprived of life, liberty or property, except by due process of law.”

Section 22. No law “making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the Legislature.”

Section.29. “No title of nobility or hereditary distinction, privilege, honor, or emolument shall ever be granted or conferred in this state.”

Section 35. “The sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”

Section 211. “All taxes levied on property shall be assessed in exact proportion to the value of such property.”

Section 217. “The property of private corporations, associations and individuals of this state shall be forever taxed at the same rate.”

As said by one of our great Chief Justices: “When the judicial department is invited to declare the legislative has invaded the Constitution it was under obligation to preserve, though it cannot shrink from the inquiry, it will approach it with caution, examine the question in every possible aspect standing as an impartial arbiter between the co-ordinate departments of the government, subject to the obligation from which its duty arises, and the party complaining of wrong, bound to accord to the legislative' department the presumption that it has not transcended its powers, will not, unless it is clear that the enactment and the Constitution cannot co-exist, pronounce a sentence of nullity.” Per Brickell, C. J., in Mayor of Mobile v. Stonewall Ins. Co., 53 Ala. 575.

We are aware that in Montgomery v. Kelly, 142 Ala. 552, 38 South. 67, 70 L. R. A. 209, it was in effect held that unreasonable discriminations in the imposition of privilege or occupation taxes might invade some of the general constitutional limitations above quoted, although not forbidden by sections 211 and 217. And this principle seems to have found express recognition in earlier cases, also. — Phoenix Carpet Co. v. State, 118 Ala. 151, 152, 22 South. 627, 72 Am. St. Rep. 143; Phoenix Ass. Co. v. Fire Department, 117 Ala. 631, 653, 23 South. 843, 42 L. R. A. 468; W. U. Tel. Co. v. State Board, 80 Ala. 273, 280, 60 Am. Rep. 99. In the last cited case it was said: “Whilst there is no provision of the Constitution, commanding in terms equality and uniformity, the principle should underlie and regulate the provisions of every law imposing public burdens and charges. * '* The requirement is complied with, when the tax is levied equally and uniformly on all subjects of the same class and kind.” And again in Phoenix Carpet Co. v. State, supra, it was said: “We may concede that when a tax is imposed on avocations, or privileges, or on the franchises of corporations, it must be equal and uniform. The equality and uniformity consists in the imposition of the like tax upon all who engage in the avocation, or who may exercise the privilege taxed.”

Nevertheless, while recognizing this general limitation on the Legislature with respect to these forms of taxation, we are unable to clearly see that the exemption of Confederate veterans from the payment of this occupation tax, as here provided for, is inconsistent with that principle, or in violation of any of the general provisions of the Bill of Rights. Section 2 of the Bill of Rights in the Constitution of 1875 provided: “That all persons resident in this state, born in the United States, or naturalized, or who shall have legally declared their intention to become citizens of the United States, are hereby declared citizens of the state of Alabama, possessing equal civil and political lights.” It is noteworthy that this section was dropped from the Constittuion of 1901; for such a declaration might well be regarded as forbidding any valuable immunity to Confederate veterans of the Civil War which is denied to veterans of that war in general, even conceding that veterans in general (that is, both Confederate and Union) might be thus marked for favor.

In the conclusion above stated all the Justices concur, except Mayfield, J., who dissents in a separate opinion.

2. As regards the fourteenth amendment to the Federal Constitution, Dowdell, C. J., and McClellan and Sayre, JJ., are of the opinion that it is not offended by section 33% of the Revenue Act. Anderson, May-field, and Somerville, JJ., are of the opinion that the immunity granted to Confederate veterans by its proviso clause is offensive to that amendment, and that the entire section is thereby rendered invalid. Simpson, J., is of the opinion that the proviso clause is invalid, but that the rest of the section is valid with the proviso stricken out. That such an exemption as the one here under consideration is invalid, as being in violation of the fourteenth amendment, has been expressly held in at least three states: State v. Shedroi, 75 Vt. 277, 54 Atl. 1081, 63 L. R. A. 179, 98 Am. St. Rep. 825; City of Laurens v. Anderson, 75 S. C.62, 55 S. E. 136, 117 Am. St. Rep. 885, 9 Ann. Cas. 1003; State v. Whiteom, 122 Wis. 110, 99 N. W. 468. And in two other states similar exemptions of veterans have been held to be violative of the uniformity requirements of state Constitutions by reasoning equally applicable to the fourteenth amendment. — State v. Garbroski, 111 Iowa, 496, 82 N. W. 959, 56 L. R. A. 570, 82 Am. St. Rep. 524; Ex parte Jones, 38 Tex. Cr. R. 482, 43 S. W. 513. The reasoning of these cases is, it seems to the writer, unanswerable. The question does not concern the police power of a state. It is purely and simply a question of taxation for revenue. The separation of those who pursue the vocations taxed into two classes, one consisting of those not Confederate veterans, and the other of those who are, bears no sort of relation to any public policy with respect to those vocations, or to the duties of the two classes as taxpayers. There is no natural distinction between such veterans and other citizens which can legitimately mark them for favor in the unrestricted and unburdened pursuit of occupations which all citizens have an equal right to follow under equally favorable conditions.

As said by the Supreme Court of Vermont in State v. Shedroi, supra: “Assuming that thus to have served as a soldier and to have received an honorable discharge may well merit reasonable considerations at the hands of the state in recognition of patriotism and valor in defense of a common country, yet such considerations cannot exceed those constitutional • limits established for the welfare and protection of the whole, for equal protection of the laws requires ‘that all persons subjected to such legislation shall be treated alike under circumstances and conditions, both in the privileges conferred and liabilities imposed.’ — Magoun v. Illinois, etc., Bank, 170 U. S. 283, 18 Sup. Ct. 594 [42 L. Ed. 1037].” More specifically, it seems evident to my mind that the distinction necessarily implied by this exemption between Confederate veterans and Union veterans of the Civil War, to say nothing of veterans of other wax’s, is invidious, and peculiarly opposed to the spirit and letter of the fourteenth ainendment. If a Confederate veteran and a Union veteran should be found pursuing side by side, without license, any one of the taxed vacations, and both should be prosecuted for not having a paid license from the state, I do not see how a court of this state could acquit the one upon proof that he is a Confederate veteran, and at the same time convict the other because he is only a Union veteran, without a palpable violation of the provision that guarantees to all the equal protection of the laws. It may be conceded that the unequal operation of this revenue law is concretely unimportant, and, sentimentally, most agreeable. But it none the less violates a principle, and great organic principles- cannot be suspended in particular cases except at the peril of their ultimate destruction.

3. To hold that- the proviso creating the exemption in favor of ex-Confederate soldiers could be stricken out, and the license tax enforced against all persons pursu ing the vocations specified, would be in effect to make a statute materially different from that enacted by the Legislature; for this act, by its very terms, imposes the tax on the express condition that it shall not operate on the exempted class. To thus enlarge its field of operation, in spite of the legislative will to the contrary, would manifestly exceed the limits of authorized judicial action, and invade the prerogatives of the Legislature. The case of Vines v. State, 67 Ala. 73, is very clearly decisive of this specific question. All concur in this conclusion, except Simpson, J., who dissents. Let this answer and opinion be certified to the Court of Appeals.