Board of Revenue of Jefferson County v. State

• Decision Date: 06 July 1910
• Citation: 54 So. 757,172 Ala. 138
• Parties: BOARD OF REVENUE OF JEFFERSON COUNTY v. STATE EX REL. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

54 So. 757

172 Ala. 138

BOARD OF REVENUE OF JEFFERSON COUNTY v. STATE EX REL. CITY OF BIRMINGHAM.

Supreme Court of Alabama

July 6, 1910

On Rehearing, Jan. 12, 1911.

On Rehearing.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Mandamus by the State of Alabama, on the relation of the City of Birmingham, against the Board of Revenue of Jefferson County. From an order granting the writ, the Board of Revenue appeals. Affirmed.

Dowdell C.J., and Sayre, J., dissenting.

McClellan J., dissenting.

The petition alleges that the city of Birmingham is a municipal corporation under and by virtue of the laws of the state of Alabama, regularly organized during the month of August 1907, under the Municipal Code act enacted during that year. The respondents are the board of revenue of Jefferson county regularly elected and of legal age and requirement. (2) That the city of Birmingham is situated in Jefferson county, Ala and that the board of revenue of said county did on June 24, 1909, levy a special road tax and a special bridge tax upon all property and values assessed in said county for said year, including all properties and values assessed in the city of Birmingham for that year. (Then follows the order of the court.) (3) That on the 15th day of February, 1910, the city of Birmingham did regularly make claim upon the board of revenue of Jefferson county to pay over as provided by law to the city of Birmingham one-half of the money collected on such special road and bridge taxes on property located in the city of Birmingham, said money to be used by the city of Birmingham exclusively for maintaining streets and bridges in the corporate limits of said city. Such claim was properly verified, etc., and upon the 17th day of February, 1910, said board of revenue disallowed said claim as to all the money claimed to be due the city of Birmingham for its pro rata share of the special road and bridge tax, and refused to pay same. (4) It sets out the reorganization of Birmingham under the Greater Birmingham bill. (5) Avers the amount alleged to be due said city of Birmingham from said tax. (6) Sets forth section 1335, Code 1907, and alleges that the city of Birmingham informed the respondent that said section was the law under which said claim was sought. (7) Sets forth an act of the Legislature of August 26, 1909, and alleges that, under it, it claimed the pro rata share of the special road tax. This section also sets forth the act of the Legislature adopting the Code. (8) Sets up that the amount claimed by the city of Birmingham from the board of revenue of Jefferson county has been levied and collected by the board for a special road and bridge tax, and that such money is in the hands of the treasurer of Jefferson county, and subject to warrant for the purposes herein sought. Then follows the prayer that they be required to draw their warrant, etc.

The demurrers set up: The fact that the levy was made prior to the adoption of the act under which relator claims. Because section 1335 of the Code, upon which petitioner relies, imparts no validity to the demand of petitioner. Because said section became a law after the act adopting the Code was enacted, and therefore did not become a part of the Code as adopted. Because the act of August 26, 1909, was violative of section 45 of the Constitution, and is also violative of section 215 of the Constitution, and the laws under which relief is sought are violative of section 216 of the Constitution. Petition shows on its face that the board of revenue of Jefferson county never levied a bridge tax, but levied a tax of one mill on the dollar for bridge and public buildings, and never levied any bridge tax at all. Because a payment of said portion of said road tax to the city of Birmingham cannot be made without violating section 94 of the Constitution, and because petition shows on its face that the purpose for which said warrant is demanded is not a county purpose.

There was an order below ascertaining that the treasuer of Jefferson county had on hand the sum of $51,135.40, assessed and collected for macadam roads under the custody and control of the respondents, and subject to their warrant, and that half of it, to wit, half of the amount collected from property within the city of Birmingham, belonged to the city of Birmingham, and that the board of revenue draw its warrant on the county treasurer in favor of the city of Birmingham for the sum of $22,160.

Exhibit A:

"Ordered by the board of revenue of Jefferson county, Alabama, that there be levied upon all property and values assessed in the county for revenue to the state for the current tax year 2 1/2 mills on the one dollar for the general fund for the current year, one (1) mill on the one dollar for macadam roads, one (1) mill on the one dollar for bridges and public buildings, one (1/2) mill on the one dollar for public schools of the county, one (1) mill on the one dollar for school tax voted June 20, 1904, 1/4 mill on the one dollar for the interest on sanitary sewer bonds and for keeping in repair and maintaining the sanitary sewer system of Jefferson county and for the protection of water supplies of Jefferson county, Alabama.

"It is further ordered by the board that on all license levied and collected by the state under the authority of law that there be and hereby is levied for the use of Jefferson county fifty (50) per centum of the amount levied for the use of the state for the year 1909."

John H. Miller and W. K. Terry, for appellant.

R. H. Thach and Romaine Boyd, City Atty., for appellee.

McCLELLAN J.

The following act, omitting its caption, was approved August 26, 1909 (Acts Sp. Sess. 1909, pp. 303, 304):

"Section 1. That the maintenance of streets of municipalities in the state of Alabama is hereby, for the purpose of this act, declared to be a county matter.

"Sec. 2. 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.

"Sec. 3. That such sums when paid over to the municipalities shall be used exclusively for maintaining the streets in the corporate limits of such municipality, provided that if the tax is levied for any particular class of roads or highways, such sums shall be used on the streets of the municipality for roads of a similar character to such roads or highways.

"Sec. 4. That all laws or parts of laws in conflict with this act, general or special, be and the same are hereby repealed."

Section 215 of the Constitution of 1901 reads:

"No county in this state shall be authorized to levy a greater rate of taxation in any one year on the value of the taxable property therein than one-half of one per centum: Provided, that to pay debts existing on the sixth day of December, eighteen hundred and seventy-five, an additional rate of one-fourth of one per centum may be levied and collected which shall be appropriated exclusively to the payment of such debts and the interest thereon: Provided further, that to pay any debt or liability now existing against any county, incurred for the erection, construction, or maintenance of the necessary public buildings or bridges, or that may hereafter be created for the erection of necessary public buildings, bridges or roads, any county may levy and collect such special taxes, not to exceed one-fourth of one per centum, as may have been or may hereafter be authorized by law, which taxes so levied and collected shall be applied exclusively to the purposes for which the same were so levied and collected."

In the recent pronouncement made in Adams v. Southern Railway Company, 52 So. 439, and in the previous ruling made in Southern Railway Company v. Cherokee County, 144 Ala. 579, 42 So. 66, this court took account of section 215, and in construction of the section established these (as presently important) propositions: That the power to levy and collect the special tax for public roads, bridges, etc., can only be exercised by a county, and not by a fraction thereof, and the tax must, in certain consequence, be imposed and exacted within the rule of uniformity pertaining to taxation; that the object of the special tax is to satisfy county debt or liability contemplated or then incurred in providing the roads, bridges, etc., defined in the section; and that the application of the funds raised by the special tax must be to the special purposes contemplated in the creation of the power, conferred by exception from a major inhibition against the power to tax beyond the stipulated limit.

One of the purposes for which the special, exceptional, tax provided for in the section is allowed is for the erection of necessary public roads. It is apparent, from the terms of the quoted act, that the intent thereof was to bring, by legislative declaration, streets in municipalities within the constitutional term " roads," and, in consequence, permit the application, in this instance, of a fraction of the garnered special tax for constructing, etc., roads to municipal streets. It cannot be gainsaid that, if the Constitution itself does not intend the embracing of streets in the employed term " roads," a term used in definition of an exception, a proviso, to a major limitation (see Adams v Southern Railway Co.), the act must be condemned. That many courts have, upon occasion, treated the terms " streets," " roads," " highways," and related descriptive words, as...