Opinion
6 Div. 233.
November 26, 1937. Rehearing Denied January 13, 1938.
Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.
Benners, Burr, McKamy Forman and Frontis H. Moore, all of Birmingham, for appellant.
The court must look to the act as a whole in order to ascertain the legislative intent. May v. Head, 210 Ala. 112, 96 So. 869; Daly v. State, 194 Ala. 29, 69 So. 598; Steber v. State, 229 Ala. 88, 155 So. 708; Board of Revenue v. McDanal, 213 Ala. 349, 105 So. 191; Black v. State, 178 Ala. 407, 59 So. 623; Birmingham v. So. Exp. Co., 164 Ala. 529, 51 So. 159; State v. Tuscaloosa B. L. Ass'n, 230 Ala. 476, 161 So. 530, 99 A.L.R. 1019. Special provisions of the statute will control over general provisions, and where two provisions are in direct conflict the latter controls. Ivey v. Railway Fuel Co., 218 Ala. 407, 118 So. 583; Birmingham v. So. Exp. Co., supra; State v. Burchfield Bros., 211 Ala. 30, 99 So. 198; Davis v. State, 16 Ala. App. 397, 78 So. 313; Williams v. State, 197 Ala. 40, 72 So. 330; Herring v. Griffin, 211 Ala. 225, 100 So. 202. The question of classification is primarily within the province of the Legislature and not within the province of the court unless it appears from the face of the statute that the classification attempted is purely arbitrary and capricious and without semblance of reason. The classification here made, as contended for by defendant, is reasonable. 5 R.C.L. 376; Daughdrill v. Alabama Life Ins. Trust Co., 31 Ala. 91; Western Union Tel. Co. v. State Board of Assessment, 80 Ala. 273, 60 Am.Rep. 99; Phoenix Assur. Co. v. Fire Dept. of Montgomery, 117 Ala. 631, 23 So. 843, 42 L.R.A. 468; Hooper v. State, 141 Ala. 111, 37 So. 662; Kennamer v. State, 150 Ala. 74, 43 So. 482; State v. Ala. F. I. Co., 188 Ala. 487, 66 So. 169, L.R.A. 1915A, 185, Ann.Cas. 1916E, 752; Republic I. S. Co. v. State, 204 Ala. 469, 86 So. 65; State v. Ala. Educational Foundation, 231 Ala. 11, 163 So. 527; Lee v. State Tax Commission, 219 Ala. 513, 123 So. 6; Phelps v. Union B. T. Co., 225 Ala. 238, 142 So. 552; Union B. T. Co. v. Phelps, 288 U.S. 181, 53 S.Ct. 321, 77 L.Ed. 687, 83 A.L.R. 1438; Quattlebaum v. State, 79 Ala. 1; Singer S. M. Co. v. Brickell, 233 U.S. 304, 34 S.Ct. 493, 58 L.Ed. 974; American Bakeries Co. v. Opelika, 229 Ala. 388, 157 So. 206; State v. Dr. Pepper Bottling Co., 26 Ala. App. 125, 155 So. 92; Id. 228 Ala. 607, 155 So. 93; Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402; Henry v. McCormack Bros. Motor Car Co., 232 Ala. 196, 167 So. 256; Montgomery Traction Co. v. State, 150 Ala. 664, 44 So. 541; Penn Mut. Life Ins. Co. v. State, 223 Ala. 332, 135 So. 346; Crow v. General Cable Corp., 223 Ala. 611, 137 So. 657; Pullman Corp. v. Hamilton, 229 Ala. 184, 155 So. 616.
A. A. Carmichael, Atty. Gen., Wm. H. Loeb, Asst. Atty. Gen., L. H. Ellis, of Columbiana, H. L. Anderton, of Birmingham, and E. C. Boswell, of Geneva, for the State.
A literal interpretation which would defeat the purposes of a statute will not be adopted if any other reasonable construction can be given to it. Thompson v. State, 20 Ala. 54; Cocciola v. Wood-Dickerson Supply Co., 136 Ala. 532, 33 So. 856; Birmingham v. So. Exp. Co., 164 Ala. 529, 51 So. 159; Nunez v. Borden, 226 Ala. 381, 147 So. 166. The legislative intent was to exempt only those articles and businesses already bearing a special tax under the revenue laws of the state. Gen.Acts 1936-37, p. 1, § 5; Miller v. Cherokee County Fair Ass'n, 212 Ala. 556, 103 So. 648. Where a statute is susceptible of two interpretations, that which upholds rather than defeats constitutionality will be adopted. Henry v. McCormack Co., 232 Ala. 196, 167 So. 256. A statute creating exemption from taxation must be strictly construed. Brown v. Protective Ins. Co., 188 Ala. 166, 66 So. 47; Vicksburg, S. P. R. Co. v. Dennis, 116 U.S. 665, 6 S.Ct. 625, 29 L.Ed. 770; Persons who claim exemption from taxation have the burden of establishing their right thereto. Hamilton v. Pullman Car Corp., 231 Ala. 7, 163 So. 329.
This is a suit by the State of Alabama against the appellant, the Tennessee Company, for the recovery of the gross receipts tax for a period of the two months during which the Gross Receipts Tax Act existed. Acts, Sp.Sess. 1936-37, p. 1. It is not contended that this appellant would not be liable for the tax in question under schedule (155.4A) as set out in section 1 of the Act Special Session 1936-37, p. 1, if not excepted by section 5 of said act (page 2).
Section 5 of said act expressly provides that said schedules 155.4A and 155.4B shall not apply to certain articles and businesses therein enumerated among those dealt with in schedules 91 and 92 of section 348 of the General Revenue Law, Acts 1935, p. 475. Schedules 91 and 92 provide for a tonnage or severance tax of so much per ton on coal and iron ore mined, though designated as a "license or privilege tax," and which may be a proper designation. It is manifest, however, that the Legislature intended to exempt or except from the gross receipts tax the articles or commodities dealt with in schedules 91 and 92, but not a chain of stores or another independent business operated by mining companies. We think the only reasonable meaning of section 5 in the reference to schedules 91 and 92 was to except the sale of coal and iron ore from the gross receipts tax because they bore the burden of the privilege or tonnage tax and not to except the owners and operators of mines who also engaged in the general merchandise business. We think to hold that persons or corporations engaged in owning and conducting a chain of general merchandise stores are excepted from the gross receipts tax simply because also engaged in mining coal and iron ore would be so literal and technical as to violate the plain and manifest intent of the lawmakers and tend to convict them of discriminating in favor of one class of merchants against another. The spirit and not the letter should prevail when the latter would lead to an injustice or absurdity. Thompson v. State, 20 Ala. 54; Cocciola v. Wood-Dickerson Supply Co., 136 Ala. 532, 33 So. 856.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.