187 So. 867

ALABAMA STATE TAX COMMISSION v. BURNS TRANSP. CO.

8 Div. 929.Supreme Court of Alabama.
April 6, 1939.

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

John W. Lapsley, of Montgomery, E. C. Boswell, of Geneva, and L. H. Ellis, of Columbiana, for appellant.

The intention of the legislature was to limit the exclusion or exemption of motor vehicles from the operation of the Act to those operating in one city, town or village. Gen.Acts 1931, p. 303, §§ 1, 53; Hood v. State, 230 Ala. 343, 162 So. 543; State v. Florida Railroad Comm., 123 Fla. 345, 166 So. 840. Neither of the three cities in and between which defendant operates can be said to be within the police jurisdiction of the other of said cities. Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288; 1 Dillon, Mun.Corp.(5th Ed.) § 354, p. 616. Taxation exemption provisions are to be strictly construed in favor of the taxing power. State v. Wright, 224 Ala. 357, 140 So. 584; Hawkins v. People’s Fin. T. Co., 219 Ala. 558, 122 So. 650; Hamilton v. Pullman Car Mfg. Corp., 231 Ala. 7, 163 So. 329; State v. Tuscaloosa C. S. Oil Co., 208 Ala. 610, 95 So. 52; State v. Elba Bank T. Co., 18 Ala. App. 253, 91 So. 917; Henry v. McCormack Bros. Motor Car. Co., 232 Ala. 196, 167 So. 256. Defendant operates between cities as a common carrier, and is subject to regulation by the Public Service Commission and to payment of the tax. Standard Chem. Oil Co. v. Troy, 201 Ala. 89, 77 So. 383, 388, L.R.A. 1918C, 522; Birmingham v. Hood-McPherson Realty Co., 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140.

A. H. Carmichael, of Tuscumbia, and Orlan B. Hill, of Florence, for appellee.

The statute is plain and unambiguous, and is not subject to construction. It does not use the words “single” or “one” municipality, but uses the word “any”, meaning “every”. Ex parte Pepper, 185 Ala. 284, 64 So. 112; Monogram Hardwood Co. v. L. N. R. Co., 6 Ala. App. 629, 60 So. 949; Underwood Typewriter Co. v. Marengo County Bank, 17 Ala. App. 47, 81 So. 543; May v. Head, 210 Ala. 112, 96 So. 869; McCuistion v. Fenet, Tex.Civ.App., 144 S.W. 1155; Hopkins v. Sanders, 172 Mich. 227, 137 N.W. 709; Hamilton v. Des Moines Val. R. Co., 36 Iowa 31; Heyler v. Watertown, 16 S.D. 25, 91 N.W. 334; Eckerson v. Des Moines, 137 Iowa 452, 115 N.W. 177; West Chicago Park Com’rs v. McMullen, 134 Ill. 170, 25 N.E. 676, 10 L.R.A. 215. The Contract Carrier Act of 1932 provides that vehicles operating within the limits of a city or town, or between two cities or towns whose limits adjoin, should be excluded

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from the operation of the Act. Statutes on the same subject should be construed together. Birmingham v. So. Express Co., 164 Ala. 529, 51 So. 159; Railroad Comm. v. Ala. G. S. R. Co., 185 Ala. 354, 64 So. 13, L.R.A.1915D, 98; Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243. This is not a question of an exemption; the statute was written to exclude transportation companies such as defendant. The presumption is in favor of defendant and against the taxing power. State v. Roden Coal Co., 197 Ala. 407, 73 So. 5; Best v. Birmingham, 16 Ala. App. 353, 78 So. 100; Id., 201 Ala. 641, 79 So. 113; Anderson v. Birmingham, 205 Ala. 604, 88 So. 900.

Proceeding by the State Tax Commission against Burns Transportation Company to enforce payment of mileage tax under Motor Carrier Act of 1931. From a decree for defendant, complainant appeals.

Affirmed.

The agreed statement of facts is in pertinent part as follows: “Since 1933 the Burns Transportation Company has operated motor buses, as a common carrier, for the carriage of passengers for hire in the cities of Sheffield, Florence and Tuscumbia, Alabama, and from Sheffield to Florence and Tuscumbia, and from Florence to Sheffield and Tuscumbia, and from Tuscumbia to Sheffield and Florence and on Federal Reservations partly within and partly without said cities. The Service rendered is not only intra-cities in each of said cities, but is also inter-cities. The routes covered by the entire operation, except those portions of the routes on Federal Reservations, are solely and wholly within the corporate limits of one or the other of said cities, or their respective police jurisdiction.”

BROWN, Justice.

The Alabama Motor Carrier Act of 1931, conferring jurisdiction on the Alabama Public Service Commission over common carriers, defined by the Act, excepts from the jurisdiction of said Commission “Motor vehicles engaged exclusively in transporting solely within the limits of any city, town or village in this State or within the police jurisdiction thereof.” Gen.Acts 1931, p. 303, § 1; Hood v. State, 230 Ala. 343, 162 So. 543; White v. City of Decatur, 225 Ala. 646, 144 So. 873, 86 A.L.R. 914.

The purpose of this proceeding is to enforce the payment of the mileage tax imposed by section 5 of said Act (page 307) which provides, inter alia, that: “Every motor transportation company doing business in this state and subject to the control and jurisdiction of the commission shall pay to the state as contribution to the maintenance, repair and policing of its public highways for each mile actually operated within the state over such public highways a mileage tax of one-fourth cent per mile on all passenger vehicles with a seating capacity of sixteen passengers or less; and a mileage tax of one-half cent per mile on all passenger vehicles * * * of not less than seventeen and not more than twenty passengers; and a mileage tax of three-fourths cent per mile on all passenger vehicles with a seating capacity exceeding twenty and not exceeding twenty-five passengers; and a mileage tax of one cent per mile on all passenger vehicles with a seating capacity exceeding twenty-five passengers,” c. [Italics supplied.]

The agreed stipulation of facts, and the map attached thereto, show that the appellee’s operation is wholly within the tri-cities of Tuscumbia, Sheffield and Florence, and their respective police jurisdiction, and the government reservation attingent thereto, and supports the inference that there are no state maintained highways within any of the tri-cities.

These facts support the conclusion, expressed in the decree of the circuit court, that appellee’s operation is not within the jurisdiction of the Alabama Public Service Commission, and the influence of said Act.

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.

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