Troy Fertilizer Co. v. State

DOWDELL, J. This is an action by the State to, recover of the defendant corporation, the privilege tax imposed by subdivision 55 of section 4122 of the Code. The defendant filed six pleas tlo the complaint, the first being the general issue, and the remaining five [335] setting^ up' special defenses. On plaintiff’s motion, the special pleas were stricken from the file, and this ruling of the court constitutes one of the appellant’s assignments' of error. The defense sought to be se,t up in the special pleas, which were stricken, is that 'the defendant is exempt from the privilege tax for which it is sued, for the reason that it was required to pay, and did pay, the license tax required by section 379, of dealers in commercial fertilizers, and that it had also paid the tag tax required by section 386. The defendant corporation as such, was engaged in the business of manufacturing amid selling commercial fertilizers, cotton seed oil, cotton seed meal, and stock food put up in bales, all of which was the product of its plant, and the business so carried on being that for which said corporation was organized. The part -of subdivision 55, pertinent to the questions here, raised, reaids as follows: “All corporations doling business in this State, whether organized in this State or another State or country, not otherwise specifically required to pa,y a license-tax, shall pary annually the following privilege taxes:” etc. This provision forms a part of a statute which was enacted for the manifest purpose of raising revenue for the purposes of government by the imposition of a license tax. 1 The tax imposed by subdivision 55, is as its language imports, a privilege tax required of a.ll corporations as a class before doing business in this State, without reference to the character of the bnsines done, excepting, however1, from its provisions “banks and hanking institutions regularly organized as such.”" It is a license to the corporation as such, and as contradistinguished from a natural person. It is a privilege tax required of these artificial persons before they can do- business of any character. It is not a tax imposed upon a particular business, and it is of consequence, wholly unimportant as to the kind or character of business, the corporation may engage in, or whether the particular business, as-a,business, be otherwise taxed or nlot. It is a license or privilege to enter, upon, or into business of any character, as distinguished from the doing and carrying on of some [336] particular business, for which a license may or not be required. The license fee of $1 imposed by section 379, is clearly not a privilege tax specifically required of corporations as such for doing business. It is only a fee required to be paid for the license'authorized to be issued to any person, natural or artificial, wishing' to engage in doing the particular thing, of selling or exchanging commercial fertilizers^. A license to do that; which may be a mere incidents to the principal business of a corporation, a thing that may arise after the principal business has been entered' upon. The privilege tax imposed by subdivision -55, is required to be paid, before the doing, of any business by tire corporation. The business of the defendant corporation, among other things, was the manufacture of commercial fertilizers, iti sold only its own product, it was doing business ini the manufacture of commercial fertilizers, before it could have such article to sell or exchange. What we have said applies with equal force and reason to' the defense set up- by the defendant of having-paid for the tags required to be attached to the packages of fertilizers sold under section 386. Section 3286 provides that pleadings when unnecessarily prolix, irrelevant, or frivolous, may be stricken on motion. If the pleading, however, is not prolix, irrel'evant or frivolous, and the only other ground of objection is that the plea does no'ti set up a valid defense, motion to strike is not the proper remedy. The pleas here were neither prolix, irrelevant, nor frivolous, and the court erred in sustaining the motion to strike. The plaintiff should have been .put to a demurrer. — Continental Insurance Co. v. Brooks, 125 Ala. 615. It is contended by appellee, however, that as the special pleas set up no valid defense, the most that can he said of the court’s action is that it was error without injury. As a general proposition this is not a sufficient answer, for if such were the case; the office of demurrer would be practically dispensed with. It would have been o'nle of the offices of a demurrer to point out such objection, in order that the opportunity of [337] amendment might he afforded the pleader. It is further contended that the defendant was permitted without objection to offer evidence of every fact stated in the several pleas, and that, therefore, he had the benefit of his pleas under the plea of the. general issue. That he did not have the benefit of his special pleas under the plea of the general issue, is patent from the action of the court in giving the general affirmative charge for the plaintiff. Matters set up in the special pleas were such as are required to be specially pleaded, and evidence of these matters, as the complaint was framed, was not competent or relevant under the general issue. If the special pleas had remained ini, and issue had been taken on them, on the undisputed evidence, the defendant, having proved its pleas would have been entitled to- the general charge in its favor. So, if it should be considered that wliat was set up in the special pleas was in fact in issue, under the plea of the general issue, and was so regarded by the court and the parties, then the court should not have given the affirmative charge for the plaintiff. The question of the unconstituticmality of, the statute is not insisted On in argument, and we, therefore, do not consider that question. For the errors of striking the pleas, the judgment will be reversed, and the cause remanded. Reversed and remanded.