Birmingham state herald., 1897-07-01
SUPREME COURT DECISION Rendered by Chief Justice Brick
 ell on the NEW REVENUE ACT OF 1897 Requiring Corporations Doing Business in the State Not Otherwise Specified to Pay
 Annual Privilege Tax.

The State of Alabama, Judicial Depart
 ment. The Supreme Court of Alabama, l, November Term, 1896. Sixth Division,
 915. Phoenix Carpet Company vs The
 State of Alabama
 Appeal from Jefferson Criminal Court.
 Brickell, c. J.-At the last session of the general assembly an act was passed and approved February 1S 1897, entitled An act to amend the revenue laws of the state of Alabama" The fifteenth sub division of the thirty-ffth section re- quires all corporations, foreign or domes- tic, doing business in this state, except banks and banking institutions regular ly organized. not otherwise specifically required to pay a license tax, to pay an annual privilege tax, graduated by the paid up capital stock of the corporation. The appellant, a corporation organized and existing under the laws of this state, doing business in the city of Birming- ham, having a paid up capital stock of five thousand dollars, on information filed in the criminal court of Jefferson county was convicted of a violation of the subdivision. and from the judgment of conviction this apepal is taken.
 The argument of the counsel for the appellant proceeds on the hypothesis, which we are inclined to adopt that three questions are presented by the record for consideration and decision, which . they state in the following order: l. Is not the subdivision violative of the first al l sixth sections, taken in connection, of the eleventh article of the constitu- ten? 2. If not violative of the constitu ton. did the subdivision take effect from rthe day of approval of the act, or is it 'Hpostponed in operation until the first day of January next? 3. By force of the gen. eral revenue laws, is county tax added to the state tax?
 5 1. The two sections of the constitution supposed to be violated read as follows: 1. All taxes levied on property in this state shall be assessed in exact propor- tion to the value of such property; pro- gided, however. the general assembly may levy poll tax, not to exceed one dol lar and fifty cents on each poll, which shall be applied exclusively in aid of the public school fund in the county so paying the same" 6. 'The property of briva te corporations, associations and in- dividuals of this state shall forever be taxed at the same rate; provided this section shall not apply to institutions or corporations devoted exclusively to re- Ggious, educational or charitable pur- s7ses." These sections by their terms a-late only to direct taxes on property t is only such taxes which are levied and assessed; and a s to such taxes, they place corporations on an equality with natural persons; there can be no dis elimination between them. But proper ty in the sense in which it is employed, is far from comprehending all the ob- jects or subjects of taxation. Cores bonding provisions are found in the con- stitutions of many, If not all the states, and there is a general, if not universal concurrence of judicial decision, that they do not limit legislative power in the imposition of specific taxes. In Bur m ttrx.. v.<Nfa atr, fr 6S provisions, it is said: ''These provisions, as general rule, are held to apply to property, and not to include taxation on privileges or occupations" And in Sedgewick on Stat. and Constitutional Law, (2nd ed. 504-507) it is said: "In con- structing these provisions, it has been held, in many of the states, that the words equal and uniform apply only to a direct tax on property; and that the clause in regard to uniformity of taxa tion does not limit the power of the leg islature as to the objects of taxation, but is only intended to prevent an arbitrary taxation of property according to kind or quality, without regard to value. Spe- cific taxes have, therefore, been sus- tained as a valid exercise of the legisla- tive power" And in Dcsty on Taxation, 336, it is said: "The provisions of the constitution as to equality and uniformi- ty apply to property alone, and not to taxation on privileges or occupations The legisla ture must decide when and for what purpose a tax shall be levied and must select the subjects of taxation" The authorities in support of this gener- al doctrine are too numerous for citation. Many of them are collected and referred to in Denver City Railway Go. vs. Dem yer, 52 Am. St. Rep. 243; City of Newton ys. Atchison, AT Am. Rep 4S6.
 The tax imposed by the subdivision has the properties and qualities of franchise tax-it is measured or gra du- ated by the amount of the paid-up capl- tai stock of the corporation, and this distinguishes it from tax on property. Speaking in reference to Ghis inquiry, 1t was said by Clopton, J., in State vs. Stonewall Tns. Co.. S9 Ala, 33S: ''The usual and most certain test Is whether the. tax is upon the capital stock, co riomine, without regard to i.s value, or at it's assessed valuation in whatever it may be invested; if the former, it is a franchise tax; if ths latter, a tax upon the property" Reference was made 10 Bank of Commerce vs. Commissioners, Black, lC, S.) 620, in which it was said by Nell son, J., speaking of franchise tax: 'sThe tax was like on annexed to the franchise as a royalty for the grant" The tax may be imposed on the creation of the corporati ton, but if the charter or grant of incorporation does not expressly ex- empt it from taxation, a tax on the fran cfise may be subsequently, imposed at the will of the legislature. Burroughs on Taxation, section S5; Providence Bank vs. Billings. Peters, 514 Taxation is a legislative power, comprehended in the general grant 70 the general assembly, Except as it is specially restrained or limited by the constitution, or by the re- lstion of the state to the general govern ment and In it's exercise, the general assembly is not under the up;rintend- ence and control of the judiciary. "It is enough for the courts" said Brewer, J., in the City of Newton vs. Atchison, AT Am. Rep. 4S8. "that both occupations and property are legitima te objects of taxation; that they are essentially dis similar; that constitutional provisions regulating the taxation of one do not control that of the other, and that there are no constitutional inhibitions on the taxa ton of business, either by the leg.e- lature directly, or by municipal corporal tions thereto empowered by the legisla- ture."
 We may concede that when a tax is Imposed on avocations. or privileges, or on the franchises of corporations, it must De equal and uniform. The quality and pffnrr,ffu ooncfxf~ in he f,,,r, r,ocftf1x, of