
    WINN-DIXIE MONTGOMERY, INC., et al. v. David WRIGHT, et al. BRUNO’S, INC., and Big B, Inc. v. David WRIGHT, et al. WAL-MART STORES, INC., et al. v. David WRIGHT, et al.
    1911059, 1911060 and 1911094.
    Supreme Court of Alabama.
    Feb. 19, 1993.
    Rehearing Denied April 9, 1993.
    Matthew C. McDonald of Miller, Hamilton, Snider & Odom, Mobile, for Winn-Dixie Montgomery, Inc., K & B Alabama Corp., Kmart Corp., Autry Greer & Sons, Inc., d/b/a Greer’s Merritt Oil Company, Inc., d/b/a Merri-Mart, McGuire Food Marts, Inc., d/b/a Com Pac Food Stores and Dixieland Food Stores, Inc.
    C. Lee Reeves of Sirote & Permutt, P.C., Birmingham, for Bruno’s, Inc. and Big B, Inc.
    Charles A. Stewart III, Laura L. Crum and John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for Sunshine-Jr. Stores, Inc., Wal-Mart Stores, Inc. and Sam’s Wholesale Club.
    J. Doyle Fuller, Montgomery, John W. Sharbrough, Mobile, and Mark Ezell, Butler, for appellees.
    James H. Evans, Ron Bowden and J. Wade Hope, Montgomery, for amicus curiae State of Ala. Dept, of Revenue.
    Thomas T. Gallion III and Charles A. McCallum III of Haskell Slaughter Young Johnston, & Gallion, Birmingham, for W.A. Visintainer, et al.
   PER CURIAM.

The plaintiffs, David Wright, David T. Fajardo, and Rudy Earl Williams, filed an action purporting to represent a class. The plaintiffs claimed to have purchased beer, wine, and/or tobacco products from one or more of the defendants, retail sellers of beer, wine, and tobacco products, and claimed that the defendants had charged sales taxes on the total price of these products, including excise taxes that had been incorporated into the price of the products. The defendants have remitted all sales taxes collected to the State of Alabama Department of Revenue or to local revenue authorities. On behalf of the class, the plaintiffs alleged fraud and alleged that the defendants were collecting excessive sales taxes on these products and requested that the trial court order the defendants to refund all excess taxes. The trial court entered an order conditionally certifying the plaintiffs’ class “as all retail customers of the defendants who have in the past paid state and local sales taxes on beer, wine, or tobacco products calculated on a gross sales price which includes beer, wine, or tobacco excise taxes.”

The trial court denied a motion to compel the plaintiffs to add the State Department of Revenue as a defendant. The court entered an order declaring that the defendants had in fact collected excess taxes and ordering the defendants to change the way they calculate the price of these products for purposes of collecting sales taxes. Specifically, the court ordered that “in calculating sales taxes on these products, retailers must first deduct the amount of excise taxes on those products before calculating state and local sales taxes.” The court certified that adjudication as final, pursuant to Rule 54(b), A.R.Civ.P., leaving pending the claim for a refund. The defendants have brought three separate appeals from the trial court’s order.

The judgment is affirmed on the authority of Guthrie Enterprises, Inc. v. City of Decatur, 595 So.2d 1358 (Ala.1992); City of Birmingham v. Alabama Gas Corp., 564 So.2d 416 (Ala.1990); and S & L Beverages & Blends, Inc. v. Ritchie, 567 So.2d 341 (Ala.Civ.App.1990).

1911059 AFFIRMED.

1911060 AFFIRMED.

1911094 AFFIRMED.

HORNSBY, C.J., and ALMON, SHORES,* ADAMS and INGRAM,* JJ., concur.

HOUSTON, J., concurs specially.

MADDOX, STEAGALL and KENNEDY, JJ., dissent.

HOUSTON, Justice

(concurring specially).

If I had voted to quash the writ in Ex parte Sizemore, 611 So.2d 1069 (Ala.1993), as did all the other members of this Court, I would join Justice Steagall’s dissent; however, I firmly believe that it is unconstitutional to bring a class action against the State of Alabama or its officers and agents in their- official capacities, when a result favorable to the plaintiff would directly affect a property right of the state. Section 14 of the Alabama Constitution prohibits this; Ex parte Sizemore, supra (Houston, J., dissenting). If the State Department of Revenue was made a party defendant in this class action, the action would directly affect a property right of the state.

STEAGALL, Justice

(dissenting).

The record reveals that on August 2, 1988, Edmond H. Davis, supervisor of the Sales and Use Tax Division of the State Department of Revenue, sent a memorandum to sales tax licensees regarding consumer taxes and State and local sales tax. That memorandum reads, in part:

“This memorandum is to inform you of the acceptable way a retailer should handle sales taxes and consumer taxes. “Code of Alabama 1975, Section 40-23-26, provides in part as follows:
“ ‘(a) Every person, firm, corporation, association or copartnership engaged in or continuing within this state in the business for which a license or privilege tax is required by this division shall add to the sales price and collect from the purchaser on all sales upon the gross receipts or gross proceeds of which there is levied by this division a sales tax at the rate of four percent. ... (also add any local sales tax that might be due)
“ ‘(b) It shall be unlawful for any person, firm, corporation, association or copartnership described in this section to fail or refuse to add to the sales price and collect from the purchaser the amount required by this section to be so added to the sales price and collected from the purchaser; and it shall likewise be unlawful to refund or offer to refund all or any part of the amount collected, or to absorb or advertise directly or indirectly the absorption or refund of the amount required to be added to the sales price and collected from the purchaser, or any portion of such amount. Any person, firm, corporation, association, or copartnership violating any of the provisions of this section shall be guilty of a misdemeanor, and upon conviction shall be fined in a sum of not less than $50.00 nor more than $100.00, or may be imprisoned in the county jail for not more than six months, or may be punished by both such fine and imprisonment, and each act in violation of the provisions of this division shall constitute a separate offense. The provisions of this section that there shall be added to the sale price and collected from the purchaser the amounts provided herein shall in no way relieve the person, firm, corporation, association or copartnership described in this section of the tax levied by this article; nor shall the inability, impracticability, refusal or failure to add to the sales price and collect from the purchaser the amounts provided herein relieve such person, firm, corporation, association or copartnership from the tax levied by this division.’
“The Legislature left no doubt that they intended for the sales tax to be added to the stated selling price with the tax being itemized separately. If a retailer makes a sale of an item and does not add the sales tax as required by law, he is, in effect, indirectly absorbing the sales tax even though he may say the tax is included in the stated selling price.
“It appears that a retailer of a product that has consumer taxes incorporated in the selling price has two options which would insure the correct collection and reporting of the sales tax.
“1. The taxpayer could add the sales tax to the total selling price of the product, including consumer taxes, collect the tax from the customer, and remit the amount collected to the appropriate taxing jurisdiction.
“2. The taxpayer could record or otherwise account for the amount the product sells for (not including consumer taxes), account for the amount of the consumer tax excluding it from the sales price (ring up a nontaxable key) compute the sales tax on the taxable amount and collect it from the customer. Using this procedure there would be no question as to whether or not tax was collected on consumer tax.”

(Emphasis original.)

Based on this evidence, I would hold that the individual retail defendants were authorized by the State Department of Revenue to collect sales tax on the total selling price of beer, wine, and tobacco products, including any excise taxes incorporated into the price of the goods sold. Because the defendants have remitted these taxes collected to the State Department of Revenue and to the appropriate local revenue authorities, I believe that the plaintiffs’ remedy is against the State Department of Revenue for a tax refund and that the State Department of Revenue is a necessary and indispensable party and should have been made a party to this action. I would remand this case to the trial court with instructions to make the State Department of Revenue a party.

Therefore, I respectfully dissent.

MADDOX and KENNEDY, JJ., concur. 
      
      . Defendant Bruno’s, Inc., did not include the excise tax in the total sales price of its tobacco products.
     
      
      . The defendant Sunshine-Jr. Stores, Inc., has filed a Chapter 11 bankruptcy petition; this Court’s affirmance in this case does not affect the judgment with regard to Sunshine-Jr. Stores, because of the automatic stay effective upon the filing of the bankruptcy petition.
      * Although Justice Shores and Justice Ingram did not attend oral argument, they have listened to the tape of oral argument and have studied the record.
     