Board of Revenue of Jefferson County v. City of Birmingham

• Decision Date: 13 January 1921
• Docket Number: 6 Div. 154
• Citation: 205 Ala. 320,88 So. 18
• Parties: BOARD OF REVENUE OF JEFFERSON COUNTY v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

88 So. 18

205 Ala. 320

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

6 Div. 154

Supreme Court of Alabama

January 13, 1921

Rehearing Denied Feb. 10, 1921

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

Petition by the City of Birmingham for mandamus to compel the Board of Revenue of Jefferson County to rescind, revoke, and annual a resolution of the Board striking from the tax levy the words "for maintenance and construction of public roads under act approved February 17, 1885," and substituting therefor, "for the payment and retirement of fifty thousand dollars, second series, road improvement bonds of Jefferson county." From a decree granting the writ respondent appeals. Affirmed.

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

Fred G. Moore and Walter Brower, both of Birmingham, for appellee.

GARDNER J.

In the case of Board of Revenue v. City of Birmingham, 88 So. 16 (this day decided), it was held that the act of February 17, 1885 (Gen.Acts 1884-85, p. 709), was mandatory, and therefore required the board of revenue of Jefferson county to levy a special tax therein named for the purposes stated. It further held that section 2 of the act approved August 26, 1909 (Gen. & Local Acts, Special Session 1909, p. 304), was mandatory, and required the board of revenue to pay over to the city of Birmingham one-half of the money collected on the special road tax embraced in the special levy required by the act of 1885 on the property located in such municipality.

The opinion in that case deals with the act of 1887 and other acts relied upon by the board of revenue as justifying the amended levy made in the instant case, and the holding there is decisive of this appeal. The result of the holding in that case is that as to one-half of said tax, so collected, the board of revenue was without discretion, control, or right of disposal thereof, but could only pay it over to the municipality as prescribed by law.

It therefore follows that under this construction of these acts the board of revenue was without authority to so amend the tax levy as to deprive the city of Birmingham of its portion of said special tax, and that the order of June 18th, which would have this effect, was unauthorized, and should be annulled.

We think therefore mandamus is the proper remedy, and that the trial court correctly ruled. The judgment is...