Alidor v. Mobile County Commission

• Citation: 284 So.2d 257,291 Ala. 552
• Parties: Gary P. ALIDOR v. MOBILE COUNTY COMMISSION et al. SC 522.
• Decision Date: 27 September 1973
• Court: Supreme Court of Alabama

Page 257

284 So.2d 257

291 Ala. 552

Gary P. ALIDOR v. MOBILE COUNTY COMMISSION et al.

SC 522.

Supreme Court of Alabama.

Sept. 27, 1973.

Gary P. Alidor, pro se.

Maury Friedlander, Mobile, for appellees.

MERRILL, Justice.

This is an appeal by a taxpayer in Mobile County from a decree denying the taxpayer-plaintiff's prayer for an injunction and dismissing the complaint with prejudice.

The plaintiff sought to enjoin the Mobile County Commission and the individual members thereof from taking any action whereby the County would sell $4,500,000.00 in the principal amount of Road, Bridge and Drainage Facilities Bonds and to pledge as payment the proceeds derived from the special ad valorem tax authorized to be levied by the County under the provisions of Amendment XVIII to the Constitution of Alabama, as last modified and amended (relating to Mobile County Road Bonds), including the increase to 5 1/2 mills in the rate of the special tax resulting from the application of the Amendment to the Constitution that was proposed by Act 116, passed at the Third Special Session in 1971, amending Section 217 of the Constitution, adopted on May 30, 1972, and proclaimed ratified on June 8, 1972, and known as the Classification Amendment. This Amendment divides all property in the state into three classes and provides for the assessment thereof at the following ratios of assessed value to fair and reasonable market value: Class I. Property of utilities--30%, Class II. All property not otherwise classified--25%, Class III. Agricultural, forest and residential property--15%.

Plaintiff alleged that a sale of the proposed bonds would be illegal because the County did not have the lawful authority to levy the special ad valorem tax at said increased rate.

Defendants filed an answer and cross bill and issue was joined.

The facts are those set out in the complaint that are admitted by the answer, those set out in the cross bill that are admitted in the answer thereto and the testimony of the Tax Assessor of Mobile County in the form of an affidavit and stipulated by the parties. The trial court denied the injunction and dismissed the complaint.

The taxpayer contests many rulings of the trial court in brief. Inasmuch as we are affirming the decree of the trial court, we are not treating the questions as fully as they are treated in the decree which requires 35 pages in the granscript. We proposed to mention and comment briefly on the points, but the few who might be particularly interested would be better informed if they secured a copy of the decree of the trial court.

The assignments of error charge that the trial court erred in refusing the injunctive relief and in dismissing the complaint. We follow the order of appellant's brief in our consideration of the matters argued on appeal.

1. Amendment CCCI.

The appellant argues that the trial court did not comply with the provisions of Amendment 301, which pertains to Mobile County, and relates to the division of proceeds from special taxes levied in that county. The trial court held that Amendment 301, 'having been improperly submitted, as aforesaid, is, therefore, not a part of the Constitution of Alabama, as amended, * * *' and that holding is supported by the cited case of Hooper v. State, 206 Ala. 371, 89 So. 593.

The reason for this holding is that the Act submitting the proposed amendment, Act 406, Acts of Alabama 1969, Vol. 1, p. 796, provided in § 2 that:

'If a majority of the qualified electors of Mobile County participating in the election on the adoption of this amendment shall vote for the adoption thereof, then the approval of this amendment expressed by the vote in said county in favor of its adoption shall of itself authorize the changes herein proposed, and in that event no additional election by the electors of said county shall be required to authorize the same. * * *'

At the election held on December 16, 1969, a majority of the electors of the state ratified the Amendment but a majority of the voters of Mobile County voted against it. On January 25, 1973, the Attorney General issued an opinion that the amendment was 'not effective or operative in the (Mobile) county.' It was stipulated that no other elections had been held in Mobile County on the question.

The trial court held that the amendment was submitted in such a way as to make its effectiveness depend upon ratification by the electorate of the state And the electorate of Mobile County.

In Johnson v. Craft, 205 Ala. 386, 87 So. 375, this court said:

'* * * It (the Constitution) commits to no body, officer, or agent any authority or power whatever to change or modify or suspend the effect or operation of its mandates or its prohibitions; the instrument itself prescribes the exclusive modes by which it may be altered or amended, or its effect and operation changed. * * * Only through a constitutional convention, called and convened as provided in the existing organic law, or through amendment proposed and adopted as provided in the existing organic law, can the Constitution be altered or changed. * * *'

Therefore, when Act No. 406 made ratification dependent on the electorate of Mobile County, it added a 'body' not permitted by the Constitution and the Act was rendered inefficacious, even though the amendment was ratified, because it contained an unconstitutional condition. We, as did the trial court, note that this case is distinguishable from Swaim v. Tuscaloosa County, 267 Ala. 509, 103 So.2d 769, because there, the condition that the voters of Tuscaloosa County must ratify the amendment was included in the amendment itself and not in the Act submitting it as here. This court said that 'the amendment itself stated that if a favorable vote is given it by the electors of Tuscaloosa County voting in the election on the amendment, then such a subsequent election will be unnecessary'; and since a majority in Tuscaloosa County did vote for the amendment, 'the county may issue its bonds under the amendment without incurring the additional time and expense of holding such a subsequent election,' and upheld the validity of the amendment.

We agree that Amendment 301 was not operative or effective in Mobile County.

2. Tax Assessor's Report of February 7, 1973.

The Classification Amendment, Section 217(d) states that when the tax assessor has completed the assessment book 'for the ad valorem tax year immediately following the adoption of this amendment * * * he shall certify to each authority * * * the amount of ad valorem tax that will be produced * * *.' The tax assessor, in an obvious attempt to comply with this section, sent a document to the county commission in which he said, 'I wish to report to you the following:' Appellant argues that a 'report' is not a 'certificate' and is not in compliance with Section 217(d), and furthermore, that the report did not give 'the amount of ad valorem tax (to) be produced.' Actually, the report stated that the county would lose 13.5% Of its assessed value based on the assessed value of the same property as it was assessed for the year 1972.

Appellant contends that the failure to 'certify' and to state the 'amount' was a fatal noncompliance with the constitutional requirements. The trial court held that there was no merit in these contentions and that the 'report' substantially met the requirements of the Classification Amendment.

It has been held (1) that a certificate of a public officer is a written statement and signed, but not necessarily nor usually sworn to, State v. Abernethy, 190 N.C. 768, 130 S.E. 619; (2) to 'certify' is to testify to in writing; to make known or establish as a fact. 'The word is not essential to a certificate.' Cook v. Ziff Colored Masonic Lodge, No. 119, 80 Ark. 31, 96 S.W. 618; (3) a signed written statement that fails to state, 'It is hereby certified' nevertheless 'complies with the meaning of the word 'certificate,' and is therefore a certificate in substance, and that is sufficient.' State v. Schwin, 65 Wis. 207, 26 N.W. 568.

While the 'amount' would have been more appropriate than the percentage given in the report, only a simple arithmetical procedure was necessary to get the correct amount. We find no reversible error in the trial court's holding on these matters.

3. Report of February 7, 1973 Premature.

Appellant states in brief:

'We have not found in the pleadings, the proof, or the trial court's decree, Any statement or reason for the extremely early February 7, 1973 attempted certification by the Tax Assessor to the Mobile County Commission.'

Appellant argues that the final determination as to market value could not be made until objections are heard by the Board of Equalization, which hearings begin in June of each year, Tit. 51, § 107; and the assessments complained of here were reported to the governing body of the county in February.

It must be remembered that the Classification Amendment provided for an adjustment of the loss of revenue to the county (or a city) under the new classification. It is easily understandable that if residential, agricultural and commercial property had been previously assessed at 30% Of its value, the reduction to 15% And 25% Would be a rather serious financial loss to the county. The amendment provided for this adjustment in subsection (d) as follows:

'* * * If it shall appear that the estimated ad valorem tax receipts from any levy so estimated shall be less than the receipts from the same levy during the next preceding ad valorem tax year, then the levying authority shall increase each tax rate by such millage as is necessary to produce revenue that is not less than and that is substantially equal to that received during such immediately preceding tax year. It is further provided that any and all millage adjustments shall be made in increments of not less than 1/2 mill. The adjustment herein required shall be made only one time and shall be made in the ad valorem tax year...