Opinion
1 Div. 412.
May 12, 1942. Rehearing Denied May 26, 1942.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Action to recover license tax by the State against David F. Sellers. From a judgment for defendant, plaintiff appeals.
Reversed and rendered.
The action was commenced by the State in the Inferior Civil Court of Mobile. Judgment being rendered for the State, defendant appealed to the Circuit Court, where the case was tried de novo before the Judge without a jury. From a judgment rendered by the Circuit Court in favor of the defendant, this appeal by the State follows.
Certiorari denied by Supreme Court in State v. Sellers, 9 So.2d 20.
Thos. S. Lawson, Atty. Gen., and John W. Lapsley and J. Edw. Thornton, Asst. Atty. Gen., for appellant.
Appellee has practiced his profession for more than two years. Harrison v. State, 102 Ala. 170, 15 So. 563; Bragg v. State, 134 Ala. 165, 32 So. 767, 58 L.R.A. 925; Fealy v. Birmingham, 15 Ala. App. 367, 73 So. 296; Fason v. State, 19 Ala. App. 533, 98 So. 702; Wideman v. State, 20 Ala. App. 422, 104 So. 438; Id., 213 Ala. 170, 104 So. 440; 48 C.J. 1074, § 19; 21 R.C.L. 369, § 16. The medical profession can be engaged in by one on salary. Fealy v. Birmingham, supra; Frazier v. State, 19 Ala. App. 322, 97 So. 251; Fason v. State, supra; Wideman v. State, supra; State v. Luscher, 157 Minn. 192, 195 N.W. 914; Eastman v. State, 109 Ind. 278, 10 N.E. 97, 58 Am.Rep. 400; 48 C.J. 1079, § 34; 21 R.C.L. 369, § 16. Exemptions are most strictly construed against the one claiming under them. Garlington v. Birmingham, 23 Ala. App. 282, 125 So. 208; Curry v. Reeves, 240 Ala. 14, 195 So. 428; 33 Am.Jur. 363, § 38; 37 C.J. 237, § 91.
Wm. V. McDermott, of Mobile, for appellee.
To practice one's profession is to hold oneself out as following that profession as a calling, as one's usual business. Beaver Brook Resort Co. v. Stevens, 76 Colo. 131, 230 P. 121; Sanborn v. Weir, 95 Vt. 1, 112 A. 228; State v. Heath, 125 Iowa 585, 101 N.W. 429; Territory v. Newman, 13 N.M. 98, 79 P. 813, 68 L.R.A. 783; State v. Hughey, 208 Iowa 842, 226 N.W. 371; Marker v. Cleveland, 212 Mo. App. 467, 252 S.W. 95. To "engage", as used in the license schedule, means the public carrying on, as a business and livelihood, the practice of medicine. Gillman v. State, 55 Ala. 248; Harris v. State, 50 Ala. 127; Morningstar v. State, 135 Ala. 66, 33 So. 485; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Code 1940, Tit. 51, § 450. The practitioner of medicine is exempt from payment of privilege license where he has not engaged in the business and practice of such profession as long as two years and claims the benefit of such exemption. Code 1940, Tit. 51, §§ 450, 552; Garlington v. Birmingham, 23 Ala. App. 282, 125 So. 208; Bragg v. State, 134 Ala. 165, 32 So. 767, 58 L.R.A. 925; Harrison v. State, 102 Ala. 170, 15 So. 563; Brooks v. State, 88 Ala. 122, 6 So. 902; Eubanks v. State, 17 Ala. 181. Statutes imposing license taxes are strictly construed against the taxing power and in favor of the taxpayer. Raible Co. v. State, 29 Ala. App. 184, 194 So. 556; Id., 239 Ala. 41, 194 So. 560; Doby v. State, 234 Ala. 150, 174 So. 233.
The agreed statement of facts, upon which this case was tried in the court below, shows that following graduation from an accredited school of medicine, in June, 1929, appellee was awarded a certificate to practice medicine by the Medical Board of Examiners of Louisiana in that State. He went immediately into the United States Public Health service for his internship and continued to work in such Public Health Service until June 1st of the year 1940. He was on Civil Service status from his entrance upon this work in 1929, and took and passed the Civil Service examination for such work in June, 1930, and soon thereafter he was assigned to the United States Marine Hospital in Mobile County, Alabama, where he remained until his resignation therefrom June 1, 1940. For one year he was head of the department of venereal diseases. For five years his work was devoted to general surgery and thereafter, until he left the service, his professional work in the hospital was confined to the treatment of diseases of the eyes, ears, nose and throat. He did not, at any time, receive any remuneration from his profession other than his government salary.
In June, 1940, he applied for and was given a certificate to practice medicine and surgery in the State of Alabama, and on June 10, 1940, he opened an office in Mobile for the practice of his profession, specializing in the eye, ear, nose and throat.
This is a suit by the State to recover the license alleged to be due, for half the year of 1940, and the whole year 1941.
Appellee, through able counsel, claims to be exempt from the payment of the license tax here involved because of the following language of the statute: "Provided that the license imposed by this section shall not apply until such person shall have practiced his or her profession as long as two years." Code 1940, Tit. 51, § 552.
We are called to determine whether, under the agreed statement of facts, the appellee was due the license here sued for.
We approach the question, mindful that this court has approved the following text: "An exemption from license taxation under a constitutional or statutory provision is in derogation of common right and must receive a strict interpretation and no claim to exemption can be sustained unless it is clearly within the scope of the exempting clause. The existence of an exemption will not be presumed, but must be clearly proved, and if there is any doubt, the uncertainty will be resolved against the exemption." Garlington v. City of Birmingham, 23 Ala. App. 282, 283, 125 So. 208, 210; Id., 220 Ala. 338, 125 So. 210.
The plain purpose of the exemption quoted is to aid the young practitioner in establishing himself in his profession. We cannot assent to the proposition that the appellee was not subject to license until he had engaged in private practice for as long as two years. The practice of a profession and private practice are not synonymous. It requires no argument to demonstrate that the appellee was practicing medicine when he was doing general surgery in the United States Marine Hospital. Medicine was his profession. Therefore he was practicing his profession within the language of the statute.
Our conclusion is that the Judge of the Inferior Court of Mobile correctly decided the case. The learned Circuit Judge was in error.
The judgment of the circuit court is reversed and a judgment here rendered in favor of the State for the license claimed with interest and costs.
Reversed and rendered.