Board of Revenue of Jefferson County v. City of Birmingham

• Decision Date: 13 January 1921
• Docket Number: 6 Div. 115
• Citation: 88 So. 16,205 Ala. 338
• Parties: BOARD OF REVENUE OF JEFFERSON COUNTY v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

88 So. 16

205 Ala. 338

BOARD OF REVENUE OF JEFFERSON COUNTY v. CITY OF BIRMINGHAM.

6 Div. 115

Supreme Court of Alabama

January 13, 1921

Rehearing Denied Feb. 10, 1921

Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson Judge.

The City of Birmingham filed petition for mandamus to be directed to the Board of Revenue of Jefferson County, seeking to require them to pay to the City its proportionate part of the road tax collected within the corporate limits of the City. From an order granting the writ, respondent appeals. Reversed and remanded.

W.K Terry, of Birmingham, and J.J. Mayfield, of Montgomery, for appellant.

Fred G Moore and London, Yancey & Brower, all of Birmingham, for appellee.

SAYRE J.

In this cause, upon appropriate pleading, the trial court awarded a peremptory writ of mandamus, commanding the board of revenue of Jefferson county to issue a warrant in favor of petitioner, the city of Birmingham, for the sum of $51,069.11, one-half of so much of the road tax levied under the act of February 17, 1885 (Acts 1884-85, p. 709), as was collected from property located within the city for the year 1919. Acts Sp.Sess.1909, p. 304. The board of revenue has appealed.

The act of 1885, supra, provided for the levy of "a special tax of one-tenth of one per cent. on the value of all taxable property in said county as assessed for revenue for the state, to be applied to the working of public roads in said county." The act of 1909, supra, provided:

"That courts of county commissioners and boards of revenue, where there is levied a road tax, general or special, or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing repairing or maintaining roads or highways of any description, in the county, shall pay over each year to each municipality therein one-half of the money collected on such road tax on the property located in such municipality."

No question is made as to the constitutional validity of the act of 1885. The brief for appellant does seem to deny the constitutionality of the act of 1909, but this court held in Board of Revenue v. Birmingham, 172 Ala. 138, 153, 54 So. 757, Commissioners' Court v. Anniston, 176 Ala. 605, 58 So. 252, and Commissioners' Court v. Tuscaloosa, 180 Ala. 479, 61 So. 431, that the act of 1909 was within the constitutional competency of the Legislature. The provisions of these acts are expressed in mandatory terms, and, upon their face and without more, would seem to afford ample justification for the judgment now under review. This we say notwithstanding section 2 of the act of 1885, providing:

"That the said [commissioners'] court shall, from time to time, let out to contract the *** working of such portions of the public roads in said county as they may select: Provided, that in letting said roads to contract they shall begin at the corporate limits of the city of Birmingham, in said county, and go outwardly therefrom, and make successive lettings continually outward from said city" --and notwithstanding section 6 of the act of February 19, 1887 (Terry's Local Laws, p. 646), providing that, in order to meet the interest upon bonds thereby authorized and required for the purpose of raising funds to enable the commissioners' court to have the public roads of Jefferson county put in good condition, said commissioners should, from time to time, set apart from the tax authorized by the act of 1885 sufficient funds for the purpose, for it seems clear enough that the provisions last referred to deal with the expenditure of funds in the construction and maintenance of county roads--meaning in those acts county roads as contradistinguished from city streets--and were not repealed by the act of 1909, which merely directed a part of the funds into a new channel, leaving those prior acts to operate without impairment otherwise.

By the act of March 17, 1915 (Terry's Local Laws, p. 645), it was made the duty of the board of revenue of ...