I concur in the opinion of the majority, but desire to add the following:
The history of the only amendment or change made in section 211 of the Constitution of 1901 sustains and confirms the decision in this case.
The report of the Committee on Taxation in the Constitutional Convention of 1901, in reporting this section, reported that the only amendment to the article of which section 211 formed a part was to add the provision that "no tax shall be assessed upon any debt for rent or hire of real or personal property while owned by the landlord or hirer during the current year of such rental or hire, if such real or personal property be assessed at its full value."
This committee further reported that this assessment was intended to meet a then recent decision of this court. The style of the case was not given, but it is well known to the bench and bar of this state, and was the case of L. D. Lusk v. State of Alabama. It involved the question as to whether or not notes for the rent of land were taxable if the land itself was already taxed. This court held that they were, and that it was not double taxation, nor a tax on the land in excess of the constitutional limit. The correctness of that decision was doubted by many members of the legal profession, and one of the justices of this court dissented. The opinion of the court in that case was never officially reported, and not even reported in the Southern Reporter. The said Committee of the Constitutional Convention, composed of some of the most learned lawyers in the state, disagreed as to the correctness of the decision, and in their report said the committee conceived such a tax upon the rent of land the "very worst form of double taxation," and that the amendment was intended to prevent such taxation in the future. That report was adopted by the Constitutional Convention without a dissenting vote.
While, of course, the Lusk Case may be different from this case, in that there the tax was levied upon choses in action or solvent credits, and here the tax is upon income as property, yet the fundamental constitutional questions as to double taxation and excessive rate of taxation are very similar. If that amendment to section 211 was intended to prevent the double and excessive taxation imposed upon Dr. Lusk, and did so prevent it, then, a fortiori, it prevented much of the income tax levied, or attempted to be levied, by the act in question.
The proposed income tax provisions of the statute before us unquestionably attempted to levy a tax upon the rents of land when and after the land is taxed; this is what the constitution makers intended to prevent. If I may be pardoned for making the reference, the writer of this concurrence was of counsel for Dr. Lusk in that case, and he was then, and has ever since been, of the opinion that the opinion of this court in the Lusk Case was in error. There can be no doubt that the constitution makers intended by the amendment quoted above to cure that error, and prevent the repetition of similar taxes being thereafter levied. To my mind there is no doubt that if the tax sustained in the Lusk Case was prevented by the amendment *Page 501 of the Constitution, then the tax here levied against incomes which are received as rent from land is prevented. Calling one a tax upon solvent credits and the other an income tax can make no difference.