Opinion
2 Div. 7.
September 27, 1972.
Appeal from the Circuit Court, in Equity, Dallas County, Edgar P. Russell, Jr. J.
William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue and Asst. Atty. Gen., William H. Burton, Asst. Counsel Dept. of Revenue and Asst. Atty. Gen., of Alabama, for appellant.
Neither the Base at Craig Field nor the buildings located thereon and which are involved, could meet the definition of "industrial plants," as that term is used in the exception contained in the Second Proviso in Title 51, Section 613, and the exception was not lawfully applicable in this case. Code 1940, Title 51, Section 613; Exception in Second Proviso in Title 51, Section 613, supra, pertaining to the "occupational" license; Louisville N. R. Co. v. Fulgham, 91 Ala. 555, 8 So. 803, 804; In re Ginburg, C.A.Pa., 255 F.2d 358, 362; Town of Oyster Bay v. Forte, 34 Misc.2d 5, 219 N.Y.S.2d 456, 560; Dwyer v. Town of Oyster Bay, 28 Misc.2d 952, 217 N.Y.S.2d 392, 394; Words Phrases, Permanent Ed., Pocket Part, Vol. 21, page 27; also see page 492 of Vol. 21. The appellant could not lawfully qualify for an "occupational" license or meet the requirements of the exception contained in the Second Proviso in Section 613 of Title 51, supra, as neither the Government Reservation comprising Craig Field or said buildings located thereon in which the appellant operated the vending machines were "industrial plants" or were "private property" within the contemplation and meaning of the exception. Code 1940, Title 51, Section 613, as amended; Second Proviso contained in Title 51, Section 613, as amended, supra; Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 59, 45 L.Ed. 126; School Dist. of Oakland v. School Dist. of Joplin, 340 Mo. 779, 102 S.W.2d 909, 910; Homochitto River Com'rs v. Withers, 29 Miss. (7 Cushm.) 21, 32, 64 Am.Dec. 126; Porterie Housing Author. of New Orleans, 190 La. 710, 182 So. 725, 738; State ex rel. Louisiana Imp. Co. v. Bd. of Assessors, 111 La. 982, 36 So. 91, 97; British-American Oil Producing Co. v. McClain, 191 Okl. 40, 126 P.2d 530, 533; Words and Phrases, Second Ed., Vol. 33, pp. 706, et seq.; Words and Phrases, Second Ed., Vol. 35, p. 541.
Oakley Melton, Jr., Montgomery, for appellee.
It has long been the rule in this State that in construing taxing statutes which are of doubtful application, the taxpayer will be afforded the benefit of any doubt, and such statutes should be construed in favor of the taxpayer and against the State. State v. Grayson Lbr. Co., 271 Ala. 35, 122 So.2d 126; State v. Holt, 34 Ala. App. 104, 38 So.2d 598, Id. 251 Ala. 526, 38 So.2d 602; Jefferson County v. Great A P Tea Co., 237 Ala. 103, 185 So. 766; Natl. Linen Service Corp. v. State Tax Commission, 237 Ala. 360, 186 So. 478; Hill Grocery Co. v. State, 26 Ala. App. 302, 159 So. 269; State v. Downs, 29 Ala. App. 442, 197 So. 379; State v. Wertheimer Bag Co., 253 Ala. 124, 43 So.2d 824; State v. Thames, Jackson Harris Co., 259 Ala. 471, 66 So.2d 733. A tax or license on a method of doing business is discriminatory and is therefore unconstitutional and void. Rochell v. City of Florence, 237 Ala. 635, 188 So. 247. Constitution of the United States, Amendment 14; Constitution of Alabama, 1901, Article 1, § 1; City Council of Montgomery v. Kelley, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am.St.Rep. 43; Ala. Consolidated Coal Iron Co. v. Herzberg, 177 Ala. 248, 59 So. 305; Mefford v. City of Sheffield, 148 Ala. 539, 41 So. 970; In re Matter of Dorsey, 7 Port. 293; City of Cullman v. Arndt, 125 Ala. 581, 28 So. 70. Recognition by State Revenue Dept. that certain locations on Craig AFB were covered by and subject to Occupational License and Regulation M1-035 of Revenue Department so defining private property — as the term is used in the Sales Tax Law — constitute an established practice which is an administrative interpretation of the statute and which is entitled to considerable weight in determining the meaning of the statute. Dixie Coaches v. Ramsden, 238 Ala. 285, 190 So.2d 92, p. 94; State v. Hobbie Grocery Co., 225 Ala. 151, 142 So. 46; Great Northern Life Ins. Co. v. Read, 10 Cir., 136 F.2d 44, 47.
The State of Alabama through its Department of Revenue made final ten assessments for license taxes against E. P. Wallis, d/b/a Wallis Vending Company for eighty-eight vending machines dispensing candy, popcorn, gum and coffee. These vending machines were located in the following buildings or areas on Craig Air Force Base, Selma, Alabama:
Building # 29 — Officers' Club 96 — Motor Pool Dispatcher 100 — Personnel 131 — Service Station 150 — Shed for Concessions
Building #184 — Teen Town 187 — Cafeteria 215 — Paint Machine Shop 217 — Base Machine Shop 225 — Orderly Room 262 — Golf Club 301 — Civil Engineer 305 — Civil Engineer 315 — Bowling Alley 316 — Gym Steam Room 345 — Service Club 350 — Mess Hall 351 — BK's 376 — BOQ
The assessments for the years 1963, 1964 and 1965 were levied by the State pursuant to the authority reposed in it by Title 51, Section 613, as amended, Code of Alabama 1940, as Recompiled 1958. However, during the years in question, appellee held an occupational license as authorized by said section of the Code.
After the assessments became final the appellee here appealed to the Circuit Court of Dallas County, in Equity, pursuant to the authority granted him by Title 51, Section 140, Code of Alabama 1940, as Recompiled 1958.
Appellee, in his bill of complaint, contended that Section 613, supra, permitted a person who operated vending machines "in industrial plants or on private property for use of employees" to obtain an occupational license rather than a vending machine license. Appellee had obtained an occupational license for thirty dollars, whereas the vending machine license for which appellee was assessed amounted to $873.81 plus interest.
Appellee said that the vending machines located on Craig Air Force Base were for the use of military personnel and civilian employees and were not open to the general public; and that he came within the "industrial plant" exception as provided in section 613, supra, and was not required to purchase individual vending machine licenses.
The pertinent proviso of Section 613 reads as follows:
". . . Provided, further, that no license for vending machines, vending merchandise in industrial plants or on private property for use of employees, or machines on which persons are weighed, shall be required, if in lieu thereof, the person, firm or corporation engaged in the business of operating such machine shall have applied for and obtained an occupational license and shall have paid therefor, as follows: In counties of sixty thousand inhabitants or less — thirty dollars."
The trial court after hearing the evidence stated that the sole issue before the court was whether the vending machines located on Craig Air Force Base and operated by appellee came within the exception of Section 613, supra, which permits operators of vending machines located "in industrial plants" to pay an occupational license rather than individual vending machine licenses. The court then rendered its decree holding that the vending machines in question were not subject to the individual vending machine licenses because the machines were located in an industrial plant, i. e., Craig Air Force Base. From said decree the State of Alabama appealed to this court.
The assignments of error filed by the appellant are all to the effect that the trial court erred in defining Craig Air Force Base as an "industrial plant" within the meaning of the proviso of Section 613, supra, and exempting appellee from the payment of the vending machine license. The appellant further argues that Craig Air Force Base is not "private property" within the meaning of said proviso.
The statute in question, i. e., Section 613, supra, appears to permit an individual, firm, or corporation to operate merchandise vending machines ". . . in industrial plants or on private property for use of employees . . .." at a different and possibly cheaper rate than if those same machines were operated in locations other than those enumerated. However, in order to take advantage of this probably cheaper rate, one must show that he fits into the special category created by the legislature.
The term "industrial plants" is not defined in Section 613, supra; and the generally accepted rule is that, in the absence of a statutory definition, the commonly accepted definition of such term must be applied. Republic Steel Corp. v. Horn, 268 Ala. 279, 105 So.2d 446; Holloway v. State, 262 Ala. 437, 79 So.2d 40.
In Webster's International Dictionary, Second Ed. Unabridged, the definition of an "industrial plant" includes "engaged in a manufacturing industry."
It has also been decided that the ordinary understanding of an "industrial plant" is that it is a manufacturing establishment. Town of Oyster Bay v. Forte, 34 Misc.2d 5, 219 N.Y.S.2d 456; Dwyer v. Town of Oyster Bay, 28 Misc.2d 952, 217 N.Y.S.2d 392.
Craig Air Force Base is a U.S. Air Force training facility with the primary mission of training pilots to fly jet aircraft. It is a U.S. military establishment.
There was no evidence presented to the trial court that Craig Air Force Base was an "industrial plant" within the commonly accepted definition of that term. There was no evidence that Craig Air Force Base was a manufacturing plant within the accepted definition.
Furthermore, there is nothing in Section 613, supra, to indicate that the legislature intended to include military bases within the definition of "industrial plants."
There is no evidence in the record of the case before us to support the conclusion that Craig Air Force Base is an "industrial plant." Therefore, since Craig Air Force Base does not come within the purview of the proviso of Section 613, supra, appellee would not be authorized to purchase an occupational license for the operation of the vending machines in question on Craig Air Force Base. Not being able to purchase an occupational license, it would be necessary that appellee have individual vending machine licenses for the operation of each assessed machine at Craig Air Force Base in order to comply with the provisions of Section 613, supra.
Appellee contends in brief that Section 613, supra, is unconstitutional for the reasons that it imposes a tax on the method of doing business; that the tax is not equal and uniform and therefore violates the Alabama and United States Constitutions; and that the statute is discriminatory for that the amount of the tax is dependent on the location of vending machines, i. e., whether they are located in "industrial plants" or on private property where there are five or more employees.
The objections to the constitutionality of Section 613, supra, have been raised for the first time on appeal. They were not raised in the trial court.
In Gardner v. Stevens, 269 Ala. 213, 111 So.2d 904, the Supreme Court said:
"The rule is that the constitutionality of a statute will not be decided in this court when the question was not presented in the lower court but was raised for the first time in a brief in this court. . ."
We are therefore precluded from considering the objections to the constitutionality of the statute raised in appellant's brief.
For the reasons stated above, we conclude that the trial court erred in decreeing that the final assessments on the vending machines in question were illegal and void, hence this case is reversed and remanded.
Reversed and remanded.
WRIGHT, P. J., and HOLMES, J., concur.