State v. Le Croy

LAWSON, Justice. The ultimate question for decision in this case is whether an appeal can be taken to the Chilton County Law and Equity Court, in equity, from a final sales tax assessment made by the State Department of Revenue. On December 7, 1949, the State Department of Revenue entered a final assessment against E. C. LeCroy for additional sales tax for the period beginning January 1, 1946, and ending December 31, 1948. On December 12, 1949, E. C. LeCroy, the taxpayer, filed notice of appeal with the secretary of the Department of Revenue and with the register of the Chilton County Law and Equity Court, in equity. At the time of taking the appeal appellant [639] executed a supersedeas bond, which was approved by the ex officio register of the Chilton County Law and Equity Court, in equity, in double the amount of the assessment conditioned to pay all taxes, interest and costs found to be due. Thereafter on December 15, 1949, E. C. LeCroy, the taxpayer, filed a bill in equity in the Chilton County Law and Equity Court, in equity, assailing the correctness and validity of the assessment of the Department of Revenue. The prayer of the bill was in effect that no additional sales tax was due and that the court set aside and cancel the assessment made by the Department of Revenue, and if any amount of tax is found to be due, a decree be rendered fixing the amount of such additional sales tax, penalty and interest. LeCroy, the taxpayer, took the appeal under the provisions of §§ 140 and 768. Title 51, Code 1940. The State demurred to the bill on the ground, among others, that the bill showed on its face that the Chilton County Law and Equity Court, in equity, did not have jurisdiction of the appeal from the final assessment of the State Department of Revenue. From a decree overruling the demurrer, the State has appealed to this court. The position taken by the State is that appeal from the final sales tax assessment made by the State Department of Revenue may be taken by LeCroy only to the circuit court of Montgomery County, in equity, or to the circuit court of Chilton County, in equity. Section 768, Title 51, supra, provides that an appeal from a final sales tax assessment made by the State Department of Revenue shall be taken in the same manner as provided in § 140, Title 51, supra. Section 140, Title 51, authorizes an appeal by the taxpayer “to the circuit court of Montgomery county sitting in equity, or, in cases other than public utilities, to the circuit court of the county in which the taxpayer resides if the taxpayer has within the state a permanent residence, at the option of the taxpayer”. In answer to the contention made by the State that the Chilton County Law and Equity Court, in equity, had no jurisdiction over the appeal, LeCroy, the taxpayer, argues that the Chilton County Law and Equity Court, in equity, is one of concurrent jurisdiction with the circuit court of Chilton County, in equity, and that when the appeal is authorized to be taken to the circuit court of Chilton County, in equity, such authority extends to the Chilton County Law and Equity Court, in equity, because it is a court of concurrent jurisdiction with the circuit court of Chilton County, in equity, and therefore, under the provisions of § 140, Title 51, LeCroy, the taxpayer, had the right to appeal to the circuit court of Montgomery County, in equity, or the circuit court of Chilton County, in equity, or to the Chilton County Law and Equity Court, in equity. The Chilton County Law and Equity Court was created by a local act approved July 12, 1949, General and Local Acts 1949, p. 314. The first section of that act is as follows: “That there is hereby established in and for Chilton County, Alabama an Inferior Court of Law, both civil and criminal, and of Equity, which shall be called Chilton County Law and Equity Court, and which shall be a court of record, and which shall have and exercise concurrent jurisdiction now conferred, or which may hereafter be conferred, upon the several Circuit Courts of the State, provided that the said Law and Equity Court shall not have jurisdiction to try a person charged with felonies and provided further that said court’s civil jurisdiction on the law side of said court shall not exceed the sum of $500.00, exclusive of the interest and cost; and said Court shall have concurrent jurisdiction with Justices of the Peace of Chilton County in all matters whatsoever ; and shall also have and exercise such further jurisdiction, authority, functions and powers as are hereinafter conferred upon it by this Act.” The provisions of the act creating the Chilton County Law and Equity Court quoted above, in so far as they relate to the equity powers of that court, are in all respects the same as the provisions of § 1 of the act creating the Law and Equity Court of Franklin County. Act No. 404, [640] approved September 28, 1923, Local Acts 1923, p. 272. We have held that the Law and Equity Court of Franklin County, created by the said 1923 local act, has concurrent equity jurisdiction with the circuit courts of this state. Ex parte Johnson, 238 Ala. 584, 192 So. 508; Scott v. Scott, 247 Ala. 266, 24 So.2d 25. We agree, therefore, with the contention of the taxpayer, E. C. LeCroy, that the Chilton County Law and Equity Court has concurrent equity jurisdiction with the circuit courts of this state. The State contends that although the Chilton County Law and Equity Court, in equity, may have concurrent equity jurisdiction with the circuit courts of this state, appeals cannot be taken to that court from final sales tax assessments made by the State Department of Revenue, because by the express language of § 140, Title 51, Code 1940, such appeals may be taken only to the circuit courts in equity. The State further contends that if the legislature had intended that such appeals be taken to the several law and equity courts of this state, the words “or court of like jurisdiction” would have been included in the section. But under our decisions, the mere failure of the legislature to include such words has been held not to deprive a statutory court having concurrent equity jurisdiction with that of the circuit courts of this state from entertaining proceedings for the condemnation of contraband property seized by the law enforcement officers under the provisions of §§ 247 and 248, Title 29, Code 1940. Section 248 provides in effect that it is the duty of certain law enforcement officers to institute condemnation proceedings in the circuit court by petition in equity in the name of the State against the property seized, describing the same, or against the person or persons in possession of said vehicles of transportation, if known, to obtain a decree enforcing the forfeiture. In the case of Thompson v. State ex rel. Key, 247 Ala. 585, 25 So.2d 671, the solicitor of the Law and Equity Court of Franklin County instituted proceedings in the Law and Equity Court of Franklin County against Clinton Thompson and one 1941 Ford automobile, to condemn the automobile as having been used in the transportation of prohibited liquor. The position was taken in that case that the jurisdiction of vehicle forfeiture cases under the liquor laws is exclusively in the circuit court and that the law and equity court had no jurisdiction. In answer to that contention we said: “It is clear from the title and provisions of this Act that it was the legislative intent to establish a court with equity jurisdiction concurrent and coextensive with the jurisdiction of the Circuit Court, as well as to give the court jurisdiction to try actions at law. Ex parte Johnson, 238 Ala. 584, 192 So. 508. “The proceedings authorized by Sections 247 and 248, Title 29, Code of 1940, in connection with the local Act creating the Law and Equity Court of Franklin County clearly conferred jurisdiction on said court to entertain proceedings for condemnation 'of contraband property seized by the law enforcement officers under said section.” 247 Ala. 587, 25 So.2d 677. Section 20, Title 34, Code 1940, gives to circuit courts in equity power to render divorce decrees. This power is statutory and limited. Nothing is said about any other court having equity jurisdiction. Yet we have held that the Law and Equity Court of Franklin County has jurisdiction of divorce cases under § 20, Title 34, supra. Ex parte Johnson, supra; Scott v. Scott, supra. To like effect see Ex parte Clemmons, 244 Ala. 13, 12 So.2d 81, wherein it was held in effect that the Law and Equity Court of Lauderdale County had concurrent jurisdiction with the equity court in divorce matters. The Law and Equity Court of Lauderdale County there under consideration was established by an act passed over the Governor’s veto on May 29, 1931, Local Acts 1931, p. 72. Section 1 of said act is in practically the same language as § 1 of the act creating the Franklin County Law and Equity Court, supra. In view of our holdings heretofore referred to, we do not think we would be justified in placing upon § 140, Title 51, Code 1940, the narrow construction for which the State contends. To do so would [641] not only affect the rights of the appellee in this case, but perhaps many other taxpayers in the several counties of this state wherein are similar statutory courts having concurrent equity jurisdiction with the circuit courts. An examination of the various statutes relating to the review by the courts of tax assessments fails to point out any reason why we should place a different construction on the tax statute here involved from that which we have heretofore placed on the statutes relating to divorce and condemnation of vehicles transporting prohibited liquors. In view of the foregoing, we hold that appeals from final sales tax assessments made by the Department of Revenue may be taken to the Chilton County Law and Equity Court, in Equity. The decree is affirmed. Affirmed. BROWN, SIMPSON, and STAKELY, JJ., concur. FOSTER and LIVINGSTON, JJ., dissent.