Opinion
3 Div. 958.
May 21, 1931. Rehearing Denied June 11, 1931.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Arthur B. Chilton, of Montgomery, for appellant.
The Act approved February 21, 1931, was passed three weeks after appellant applied for permit under the revenue law of 1927, under which appellant's right then accrued. The act of 1931 does not clearly intend a retroactive effect, and for this reason such an effect will not be given to it. Lindsay v. U.S. S. L. Co., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783. A permit, to be valid, must be applied for on or before February 1st of each year. The tax commissioner, upon whom the duty devolves under the act of 1931, could not issue a permit prior to the passage of the act. The permit must be issued on or before February 1st. Hence the act could not apply to the year 1931. If it is the duty of the tax commissioner to issue a permit and the tax commissioner can only issue a permit which invalidates contracts made theretofore this year by the corporations, this would be an impairing of the obligation of contracts in violation of the Federal Constitution. The act of 1931 places a heavier burden upon foreign corporations than upon domestic corporations. Upon the former the penalty is invalidity of its contracts; upon the latter a penalty of $10 per day. This is in violation of the Fourteenth Amendment to the Federal Constitution. Power Mfg. Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165; Southern Ry. Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536, 17 Ann. Cas. 1247; Gulf, etc. v. Ellis, 165 U.S. 154, 17 S.Ct. 255, 41 L.Ed. 666.
Thos. E. Knight, Jr., Atty. Gen., and A. A. Evans, Asst. Atty. Gen., for the State.
Authority of appellee was taken away, by the act of 1931 two days prior to the filing of the petition for mandamus. A mandamus does not confer power upon those to whom it is directed; it only enforces the exercise of power already existing. It will not lie unless the act desired is of absolute obligation on the part of the person sought to be coerced. U.S. v. County of Clark, 95 U.S. 769, 24 L.Ed. 545; Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861; People ex rel. Green v. Board of Com'rs, 176 Ill. 576, 52 N.E. 334; Merrill on Mandamus, § 57; People ex rel. v. Hayt, 66 N.Y. 606; Comrs. of Taxing District v. Loague, 129 U.S. 493, 9 S.Ct. 327, 32 L.Ed. 780.
The petition avers that the relator, a foreign corporation, applied to the respondent, Jarman, as secretary of state, for a permit as provided by section 42 of the Revenue Act of 1927 (Laws 1927, p. 171), after complying with the requirements of said provision. It was unquestionably the duty of the said Jarman to issue said permit, and had this mandamus been sought prior to February 21, 1931, it would no doubt be awarded; at any rate, the petition would not have been subject to the respondent's demurrer. But the petition was not filed until February 23d, after the enactment of the Act approved February 21, 1931, amending section 42 of the Act of 1927.
Under the Act of 1927, it was the duty of the secretary of state to issue the permit, but section 1 of the Act of 1931 changes section 42 of the Act of 1927 to the extent of requiring that application be made to and the permit be issued by the state tax commission instead of the secretary of state.
The new act also made it the duty of the secretary of state to immediately deliver to the state tax commission all money, checks, drafts, and like instruments received by him, and all books, records, and supplies kept or used by him under the provisions of this section. It is therefore manifest that the said Jarman, as secretary of state, had no authority to issue the permit after the 21st of February or when this petition was filed on February 23, 1931. Mandamus will not, of course, lie to compel one official to discharge a duty devolving upon another official body.
The last act is in no sense retroactive, as it deals only with licenses or permits not then issued. Had the permit been issued or these proceedings instituted before the adoption of the Act of February 21, 1931, and it was made applicable thereto, there might be some force in the suggestion that to so make it apply would give a retroactive effect, but such is not the case, as it deals only with present and future conditions.
Counsel for appellant suggests certain constitutional objections to the last act if given a retroactive effect, and, as such effect is not given, these suggestions are without merit.
It is also argued that the act violates the Federal Constitution because it discriminates between domestic and foreign corporations. This is authorized by sections 229 and 232 of the Constitution of 1901. Atlantic Coast R. R. v. State, 204 Ala. 80, 85 So. 424. Moreover, the last act is identical as to the tax with sections 42 and 43 of the Act of 1927, and, if repugnant to the Federal Constitution, section 42 of the Act of 1927 would for the same reason be ineffectual, and, if such was the case, there would be no duty resting upon the respondent to issue the permit, and he could not be forced by mandamus to discharge a duty not imposed by law.
The trial court did not err in sustaining the respondent's demurrer to the petition, and, as the relator declined to amend or plead over, properly rendered a judgment in favor of the respondent Jarman, as secretary of state.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.