Ex Parte State

90 So. 871, 206 Ala. 393, 1921 Ala. LEXIS 162

• Court: Supreme Court of Alabama
• Decided: July 15, 1921
• Docket: 6 Div. 511.
• Status: Published

Opinions

It must, we think, be conceded that the Court of Appeals has correctly construed section 4832 of the Code as embracing all civil actions, other than those excluded by sections 4830 and 4831, whether brought in the name of the state, or of a county or municipality, or of an individual, in so far as such actions are specifically designated and dealt with in sections 4833-4840, following. It is, of course, clear that section 4832 does not cover all actions, but only those which are expressly designated in the sections following.

Upon our first consideration of the matter, we were inclined to concur in the view that this action for the recovery by the state of franchise taxes due from a foreign corporation, under the provisions of revenue acts of 1911 (Acts 1911, p. 159) and 1915 (Acts 1915, p. 386) is for a liquidated account within the meaning of subdivision (5) of section 4835, or else is for an open or unliquidated account within the meaning of section 4838, and would therefore be subject to the limitation of six years or of three.

But, upon maturer consideration, we are convinced that an action for the recovery of taxes is not an action upon an account, whether liquidated or unliquidated, stated or open, within the meaning of the limitational provisions referred to. Limitations against the state are never intended, unless expressly declared, or necessarily implied. 17 R. C. L. 970, § 344; 25 Cyc. 1006; Ware v. Greene, 37 Ala. 494. And it has been held that "no statute of limitations runs against the right of the state to collect its taxes, unless expressly made applicable." 37 Cyc. 1247 (v), and cases cited.

So far as this court is concerned, the question has been fully and specifically determined by the case of Perry County v. Railroad Co., 58 Ala. 546, 569, wherein it was held that, as against an action by a county for the recovery of taxes levied and assessed ad valorem, our statute prescribed no apt limitation, and that therefore none was available. With respect to the designation of the actions intended to be limited, the language of our present statutes is the same as that of the statutes then in force, and they have presumptively been re-enacted in the light of the construction placed upon them in the Perry County Case. To now hold that those statutes contain a limitation in bar of suits for the recovery of taxes would therefore do violence to the legislative intent, as courts must ascertain and declare it.

That case was overlooked, and its effect was not considered, by the Court of Appeals, nor by the minority opinion hereto attached. In the view of the majority, concurring with the writer, that case is decisive of the case before us, and binds us in its determination.

The writ of certiorari will be granted, and the judgment of the Court of Appeals will be reversed, and the cause remanded for further proceedings in accordance herewith.

Writ granted.

ANDERSON, C. J., and McCLELLAN, GARDNER, and THOMAS, JJ., concur.