The Birmingham age-herald., 1921-06-18

There is likewise a suggestion that the Commission is given the author ity to prescribe certain rules and regulations. and that for aught that appears such rules have been adopted prescribing notice to the taxpayer in cases of this character. The quota tions from the authorities supra dem onstrate that this is insufficient The notice to the taxpayer must be mat CT of right and not of grace or favor or mere discretion.
 But, it is insisted by counsel for appellant, that section 222S of the Code, noted in the Bailey & Howard case, is still of force. and therefore there exists a statute requiring Eotice to the taxpayer; but the Act of 1919 is not amsndatory of any revenue law. II is>original and complete with in itself. We find no provision there i'll which would revive the require ments of that section. The Act of 1919 states that there is hereby ere ated commission to be known as the State Tax Commission, which had by previous act been abolished and what was termed the Equalization Board established in it's stead; and 1t is manifest that the section. of the Code of 1907, above referred to, can- not be carried forward and so con strued as to refer to a State Tax Commission created in 1919. The Revenue Act of 1911 (Acts 1911. D. 159) was merely ameldatory of the existing revenue laws, as disclosed upon it's face, and the reference to section 222s, Code of 1907. in the Bailey Howard case supra, was therefore justified and that authority does not initiate in the least against the conclusion here reached.
 The Revenue Act of 1915 (Acts 1915, p. 3S6) contained a provision ex- pressly preserving in force all pro- visions of existing laws relating to taxation and revenues, not in con flict and this provision was relied upon by the Court in holding section S6 of the Act of 1911 still of force in the case of Fix parte Smith, S3 South 334 No such provision is found in the present Revenue Act. Many new features as to taxation are there introduced, and the Act by its title and context clearly discloses an in- tention on the part of the legislature to cover the whole subject The very omission of the saving provision aboVe referred to is significant. By the Revenue Act of 1915. the State Tax Commission was abolished, and there was created a State Board of Equalization. So also section 222S of the Code refers to property valued by the county tax commissioner. which office has likewise been abolished
 By the present Act a State Tax Commission is established, and 1t too closely resembles judicial legislation to hold that section 222S of the Code could have reference, under these cir cunstances, to commission and to officers created in 1919. The present Act IS repiete with provisions for notlce 70 be given the taxpayer in all other respects except as to this par ticular power of the Tax Commission. and as to that authorizes an appeal. but omits any provision as to notice. Whether this was intentional or as matter overlooked, we need not in- quire. It is not provided, and nothing either indicating an intention to do so, or any reference thereto what ever The courts may not legislate py construction, and it is manifest the legislature did not have in mind the foregoing section of the Code as hay- Ing any relevancy or bearing here It IS not at all question of repeal by implication, but simply one of inap- Aplicability of the Code provision to the Revenue Act of 1919. Such pro- vision had reference to commission and officers then created, but sub sequently abolished. It served it's purpose, and we are unable to agree that 1t may now be resurrected, and brought forward to amend vital defect in the present Act.
 
 We are persuaded that none of these suggestions suffice to meet the requirements of the due process clause, as construed by the Supreme Court of the United States, above referred to, and we are constrained to hold therefore that the State Tax Commission is without authority to set aside the assessment here in question, and reassess and revalue the property. There is therefore no pending cause or controversy, and in the absence of such the Commission was without authority to demand an inspection of the books, documents and papers of the corporations; and the demurrer thereto was properly sustained.
 The foregoing represents the views of the writer (to whom the cause was originally assigned for the prepara- ton of an opinion) and Justice Sayre who concurs therein. but upon con sultation this opinion did not meet With the approval of the other mem bers of the Court who entertain the View that section 222S of the Code of 1907 may still be considered as of force and applicable to the present Revenue Act. The writer and Justice Sayre for the reasons set forth here,o are of contrary opinion and have reached the conclusion that the judgment of the trial court should be accordingly affirmed. The ma Jority' however, are of the opinion the judgment should be reversed and from this holding the writer and Justice Sayre respectfully dissent. The views of the majority are stated by the Chief Justice, as follows:
 ANDERSON, c. J. (For the Majority,
 As we understand, the contention Of appellees and the theory upon which the opinion of Justice Gardner proceeds is. that in order for the ap-- pellants to inspect the books. etc of the appellees 1t must be for tbe purpose of obtaining material and relevent evidence in a pending legal controversy. That if the State Tax Commission had the authority to va cate the appellees assessment and revalue and reassess it's property this would De a pending controversy, ana II would not violate the Constitution. Feaerai or State, by inspecting or re- curing the appellee's books, etc, Tor the purpose of ascertaining the extent and value of it's taxable prop erty in an effort to properly reassess the same. That this is not pending legal controversy, however, for the reason that the State Tax Commis- sion had no authority to set aside ~he assessment and to revalue and reassess the same. That while para graph 'm' of Section 13S of the Reva