Alabama Warehousing Co. v. State , 227 Ala. 258 ( 1933 )

On Rehearing. Where the question presented on appeal arises, not upon demurrer to the pleading, but upon the sufficiency of the evidence to sustain the plea, the pleading is construed liberally in favor of the conclusion and judgment of the trial court. So construing the defendant's special plea 2, it alleges that the defendant was solely in the business of storing or handling cotton for interstate and foreign commerce, and the agreed stipulation of facts shows that said defendant was not so engaged, but stored cotton for delivery in Alabama, along with cotton for interstate and foreign shipment. Therefore the evidence did not, without dispute, sustain the averments of the plea.

The appellant now insists that the validity of the statute levying the tax is presented under the plea of the general issue. Granting this to be so, without so deciding, it does not appear that the statute impinges the act of Congress authorizing the licensing of warehouses that are engaged in storing cotton for interstate commerce; nor does the Act of Congress as amended by the Act of March 2, 1931, 46 Stat. 1465 (7 USCA § 244 et seq.), in letter or spirit impinge the right of the state to levy a license tax for revenue on private persons or corporations engaged in the business of storing cotton, for both inter and intra state commerce in the states.

The act as amended provides, inter alia: "State and other laws not affected; enforcement of State laws. In the discretion of the Secretary of Agriculture he is authorized to cooperate with State officials charged with the enforcement of State laws relating to warehouses, warehousemen, weighers, graders, inspectors, samplers, or classifiers; but the power, jurisdiction, and authority conferred upon the Secretary of Agriculture under this chapter shall be exclusive with respect to all persons securing a license hereunder so long as said license remains in effect," etc. USCA title 7, § 269; Independent Gin Warehouse Co. v. Dunwoody (C.C.A.)40 F.(2d) 1, same case in District Court 30 F.(2d) 306.

The power to tax for revenue is an attribute of sovereignty, and Congress had no authority by the exercise of the police power to impinge or destroy such power inherent in the state over legitimate subjects of taxation within its jurisdiction. To concede such power would make the continued existence of the state depend upon the will of Congress. State v. Wright,224 Ala. 357, 140 So. 584. No such authority has ever been granted to or assumed by Congress. Western Union Tel. Co. v. City of Decatur, 16 Ala. App. 679, 81 So. 199; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627, 72 Am. St. Rep. 143; Postal Telegraph Cable Co. v. City Council of Charleston,153 U.S. 692, 14 S.Ct. 1094, 38 L.Ed. 871.

Our judgment is that the application for rehearing is without merit.

Application overruled.

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