Allred v. Dunn

• Decision Date: 11 May 1922
• Docket Number: 5 Div. 813.
• Citation: 207 Ala. 469,93 So. 390
• Parties: ALLRED v. DUNN, TAX COLLECTOR.
• Court: Alabama Supreme Court

93 So. 390

207 Ala. 469

ALLRED v. DUNN, TAX COLLECTOR.

5 Div. 813.

Supreme Court of Alabama

May 11, 1922

Appeal from Circuit Court, Lee County; Lum Duke, Judge.

Taxpayer's bill by J. L. Allred against M. M. Dunn, Tax Collector, etc to enjoin collection of taxes. From a decree dissolving a temporary injunction and sustaining demurrer to the bill complainant appeals. Affirmed.

Berrien T. Phillips, of Opelika, for appellant.

T. D Samford and N. D. Denson & Sons, all of Opelika, for appellee.

THOMAS J.

The suit was by a resident and taxpayer of Lee county against the tax collector to prevent the collection of a three-mill tax levied for school purposes in school district No. 11 in said county. In 1921 an election was held and carried in that district for the special tax, and the court of county commissioners levied the same pursuant to law. Acts 1915, pp. 107, 360; Acts 1919, p. 58.

The bill contained no averment of facts or ground for equitable jurisdiction other than that the election and the levy were "illegal and void." Unless the facts averred as a matter of law give rise to an implication of some other ground for equitable interference beyond illegality, irregularity, or hardship in respect to the collection of the tax, injunction against the tax collector will not lie, and the general demurrer was properly sustained. The proper course for the taxpayer is declared to be to "pay the tax, and seek its recovery back in an action at law." Patterson v. Pitts, Tax Col., 180 Ala. 100, 60 So. 390; Bower, Tax Col., v. Am. L. & Exp. Co., 195 Ala. 572, 71 So. 100; Adams, Tax Col., v. Sou. R. Co., 176 Ala. 320, 58 So. 397; Oates v. Whitehead, Tax Col., 173 Ala. 209, 55 So. 803; Nat. Comm. Bank v. Mayor, etc., 62 Ala. 284, 34 Am. Rep. 15. That such payment was not made under compulsion or protest is immaterial. Code, § 2345; Board of Rev. v. Birmingham W. W. Co., 160 Ala. 152, 154, 49 So. 683. The recognized jurisdiction of a court of equity to intervene in such matters is discussed in City of Ensley v. McWilliams, 145 Ala. 159, 165, 41 So. 296, 117 Am. St. Rep. 26; Town of New Decatur v. Nelson, 102 Ala. 556, 15 So. 275; Ala. Gold Life Ins. Co. v. Lott, 54 Ala. 499, 508, 509.

Appellee concedes that all funds collected under such special tax levy in the school district would be paid out and expended only with the authority and approval of the county board of education; but it is further asserted that the money derived and collected from such tax levy would not be paid to or go into the custody or possession of this county board. The provisions of section 8 of the Act of 1919, p. 58, and those of section 8, article 12, of the Act of 1919, p. 612, require that such taxes be collected by the tax collector "in the same manner and under the same requirements and laws as the taxes of the state are collected, and he shall keep said amount separate and apart from all other funds" collected by him as such official and pay the same "over to the county treasurer of school funds." The latter official is required to pay out the special tax on "the authority and approval of the county board of education, *** for the exclusive benefit of the public schools of such district," authorizing the levy of the special tax.

Appellant would have his remedy at law if the tax was illegally collected from him, under Code, § 2345, providing that-

Where money is paid "under mistake of law or fact upon any illegal tax assessment made under color of any law special or general, of the state, or by any of its political subdivisions, authorizing the assessment or collection of taxes for any purpose whatever *** for schools, or otherwise, except the laws relating to taxes

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