This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, vacating and setting aside some assessments of the Department of Revenue of the State of Alabama against appellee for the payment of privilege license taxes levied pursuant to § 547, Title 51, Code 1940, which reads as follows:
The sole question addressed to this court by appropriate assignments of error is whether or not appellee, in his manner of doing business in the sale of building materials, which, without deciding, we will treat as lumber, was operating a lumberyard within the purview of § 547, supra.
We think that the evidence shows without dispute that appellee operates a business in connected and adjoining buildings, one of which he owns and the other he rents. These buildings are located within
The building materials sold at retail are stored in an enclosed structure on the premises above described, and delivered therefrom through a convenient opening or door with a floor level about the height of a vehicle.
The appellant contends in an elaborate brief that the aforequoted statute embraces the business which appellee operates. We are not in accord.
This court, in the case of State v. Downs, 240 Ala. 74, 197 So. 382, observed:
Webster's Third New International Dictionary defines a lumberyard as "a yard where a stock of lumber is kept for sale." It defines a yard as "a small usu. walled and often paved vacant area open to the sky and adjacent to a building."
We think that the legislature, in its imposition of a license tax for the operation of a "lumberyard," did not intend that we should depart from the general rule that taxing statutes are to be construed strictly in favor of the taxpayer and against the State. State v. Roden Coal Co., 197 Ala. 407, 73 So. 5(4). It may be that others in the state are paying a lumber license for selling lumber under facts similar to those here presented. But such payments, for whatever reasons made, through ignorance, pressure, or to avoid a lawsuit, do not justify this court in departing from the rule of strict construction against the State.
One of the basic principles in construing privilege license tax laws is that they shall be based on a reasonable classification, and shall apply to all within that class. State v. Downs, supra, (2). Here, the legislature classified lumberyards (§ 547, supra) as subject to a license tax. It did not impose a separate tax on retailers of lumber. Such freedom from a license tax was addressed to the sound discretion of the legislature.
We do not agree with the strenuous insistence of appellant that under the facts here presented appellee was operating a lumberyard within the purview of § 547, supra. We are unwilling to depart from a strict construction and stretch the statute (§ 547, supra) to embrace the business of appellee as operated.
We do not think such construction should be given when to do so would be out of keeping with common knowledge that a lumberyard is something more than a building as here bordered and surrounded, with no open air area of land, owned or rented by the seller of lumber, or in his possession, and used as an accompaniment or auxiliary to the storing of lumber in the open air, or in a building or shed.
The imposition of a privilege license tax on retail sales of lumber under conditions and facts here set forth is addressed to the sound discretion of the legislature. It is not within the administrative judgment of appellant nor within our judicial province
The decree of the trial court is due to be affirmed. It is so ordered.
The foregoing opinion was prepared by BOWEN W. SIMMONS, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur.