Dorsky v. Brown

51 So. 2d 360, 255 Ala. 238, 1951 Ala. LEXIS 301

• Court: Supreme Court of Alabama
• Decided: March 1, 1951
• Docket: 6 Div. 967
• Status: Published

Opinions

PER CURIAM.

The dissenting opinion of Mr. Chief Justice LIVINGSTON sufficiently states the facts and the point of law involved.

It is contended that Act No. 688, General Acts 1947, page 522, is unconstitutional under the last sentence of section 70 of the 1901 Constitution of Alabama, which provides that “No revenue bill shall be passed during the last five days of the session”, and that Act No. 688 was passed on the last day of the 1947 regular session of the legislature. The contention is without merit.

The title of Act No. 688 is as follows: “An Act To amend Section 613, Title 51, -Code of Alabama 1940, as amended by an Act entitled An Act to amend Section 613, Title 51, Code of Alabama 1940, Act No. 207, General Acts Regular Session 1943, approved June 22, 1943, page 185.” The argument seems to be that section 613, supra, had for its origin schedule 154 of section 348, Article XIII, Chapter 1, of the General Revenue Bill passed by the Legislature of 1935, General Acts 1935, pages 256-504. Schedule 154 was amended by an Act of the Legislature of 1937, General and Local Acts, Extra Session, 1937, pages 32-33. It was amended again by the Legislature of 1939, General Acts 1939, Regular and Special Session, page 519. Schedule 154 was then brought into the Code of 1940, as section 613, Title 51, Section 613, supra, was amended by an Act of the Legislature of 1943, General Acts 1943, page 185, and as amended was again amended by Act No. 688, supra, of the Legislature of 1947, General Acts 1947, page 522.

It is unnecessary to speculate as to the effect of bringing schedule 154, supra, as amended by the several amendments pointed out into the Code of 1940, as section 613, Title 51, for the reason that Act No. 688, House Bill No. 235 is a bill “for raising revenue,” which under the provisions of section 70 of the Constitution properly originated in the House, but is not a “revenue bill” within the inhibition of the last clause of section 70 of the Constitution, that “No revenue bill shall be passed during the last five days of the session.”

Our cases are clear to the effect that the last clause of section 70, supra, refers to and was intended by the Constitution makers to apply only to the general revenue bill. Woco Pep Co. of Montgomery v. Butler, 225 Ala. 256, 142 So. 509; Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858; In re Opinion of Justices, 223 Ala. 369, 136 So. 589; In re Opinions of Justices, 233 Ala. 463, 172 So. 661.

It is also insisted that Act No. 688 is violative of that part of section 45 of the 1901 Constitution of Alabama, which provides that “Each law shall contain but one subject, which shall be clearly expressed in its title”. That a section of the Code may be amended by reference to the section number only is well settled by our decisions. Of course, it is understood that the amendatory act must be germane to, supported by and supplemental to the section of the act sought to be amended. State ex rel. Troy v. Smith, Auditor, 187 Ala. 411, 65 So. 942; Glass v. Prudential Ins. Co., 246 Ala. 579, 22 So.2d 13; Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858; City of Birmingham v. Merchants Cigar & Candy Co., 235 Ala. 204, 178 So. 220.

The title of Act No. 688 is as follows: “To amend Section 613, Title 51, Code of Alabama 1940, as amended by an Act entitled an Act to amend Section 613, Title 51, Code of Alabama 1940, Act No. 207, General Acts Regular Session 1943, approved June 22, 1943, page 185.”

Act No. 688 is a complete rewrite to section 613, supra, as amended by Act No. 207, passed by the 1943 Legislature. Coin operated radios were not taxed under section 613, supra. Other machines and devices taxed under the provisions of Act No. 688 were not included in section 613, supra.

The subject of a section of the Code is the idea or thing about which the legislature has expressed its will. Kendrick v. State, 218 Ala. 277, 120 So. 142, and our cases are to the effect that the title of an act which purports merely to amend a certain section of the Code cannot, conformably with section 45 of the Constitution, add a new and different subject. Kendrick v. State, supra; State ex rel. Troy v. Smith, Auditor, supra; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358.

The subject of Act No. 688, supra, is machines or devices in the nature of coin in the slot or vending machines, which are also the subject of section 613, supra.

Act No. 688, supra, does not offend section 45 of the Constitution in respect to that feature of it now under consideration.

Appellant argues that a coin operated radio receiving set is not a “vending machine” and, as a consequence, Act No. 688, supra, presented a new subject matter not covered by section 613, supra. ■We think the foregoing argument is answered above. The Court is of the opinion that the taxable event here under consideration is controlled by the same principles of law as announced and followed by this Court in Sanford v. City of Clanton, 31 Ala.App. 253, 15 So.2d 303, certiorari denied 244 Ala. 671, 15 So.2d 309; and we are not convinced that later cases of the Supreme Court of the United States have detracted from: the pertinent principles enunciated in that case, which is the prevailing rule on the question in this jurisdiction. Therefore, until there is a clearer pronouncement by the United States Supreme Court on the subject, we prefer to rest on the rule of the Sanford case, as controlling.

We are not convinced beyond reasqn,.ablq doubt that the statute is unconstitutional, and,-therefore, affirm the decree of the lower court in so holding.

' BROWN, FOSTER, LAWSON, SIMPSON, and STAKELY, JJ.,' concur. • LIVINGSTON, C. J., dissents as indicated.