City of Bessemer v. McClain
Decision Date | 28 July 2006 |
Docket Number | 1031917. |
Citation | 957 So.2d 1061 |
Parties | CITY OF BESSEMER et al. v. E.B. McCLAIN et al. |
Court | Alabama Supreme Court |
J. Bentley Owens III of Starnes & Atchison, LLP, Birmingham; Philip F. Hutcheson and April B. Danielson of Boardman, Carr, Weed & Hutchison, P.C., Birmingham; and Jon B. Terry of Bains & Terry, Bessemer, for appellants.
J. Bentley Owens III of Starnes & Atchison, LLP, Birmingham; Mark S. Boardman, Philip F. Hutcheson, and April B. Danielson of Boardman, Carr, Weed & Hutchison, P.C., Birmingham; and Jon B. Terry of Bains & Terry, Bessemer, for appellants, on second application for rehearing.
William A. Short, Jr., and T. Kenneth Forster, Bessemer; Calvin M. Whitesell, Montgomery; and Ralph D. Cook and John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellees.
On Application for Rehearing
The opinion of January 13, 2006, is withdrawn, and the following is substituted therefor.
The cities of Bessemer, Homewood, Hoover, Hueytown, Mountain Brook, Trussville, and Vestavia Hills (collectively referred to as "the Cities"), all located in Jefferson County, appeal from the judgment of the Bessemer Division of the Jefferson Circuit Court declaring various taxing ordinances adopted by the Cities invalid and imposing a constructive trust on the taxes collected by the Cities pursuant to those ordinances. As to the claims asserted against Bessemer, Hoover, and Hueytown, we affirm the trial court's judgment. As to the claims asserted against Homewood, Mountain Brook, Trussville, and Vestavia Hills, we vacate the trial court's judgment and remand this case to the trial court with directions to dismiss those claims or to transfer them to the Birmingham Division of the Jefferson Circuit Court.
On September 23, 2003, E.B. McClain and the Alabama Wholesale Distributors Association ("AWDA") filed a complaint in the Bessemer Division of the Jefferson Circuit Court. On March 1, 2004, McClain and AWDA amended their complaint to add as plaintiffs W.L. Petrey Wholesale Company, City Wholesale Grocery Company, Tobacco Post LLC, and Charles Lee Rackley, Jr. (The plaintiffs are hereinafter referred to collectively as "McClain.") The complaint sought a judgment declaring the following municipal ordinances invalid:
1. City of Bessemer Ordinance No. 3227, effective January 1, 2004, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Bessemer and also imposing taxes on cigars, chewing tobacco, and snuff products;
2. City of Birmingham Ordinance No. 03-134, effective September 1, 2003, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Birmingham and also imposing taxes on cigars, chewing tobacco, and snuff products;1
3. City of Fairfield Ordinance No. 964, effective October 1, 2003, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Fairfield and also imposing taxes on cigars, chewing tobacco, and snuff products;2
4. City of Homewood Ordinance No. 2182, effective January 1, 2004, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Homewood and also imposing taxes on cigars, chewing tobacco, and snuff products;
5. City of Hoover Ordinance No. 03-1978, effective January 1, 2004, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Hoover and also imposing taxes on cigars, chewing tobacco, and snuff products;
6. City of Hueytown Ordinance No. 03-0812-02, effective September 1, 2003, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Hueytown and also imposing taxes on cigars, chewing tobacco, and snuff products;
7. City of Mountain Brook Ordinance No. 1586, effective September 8, 2003, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Mountain Brook and also imposing taxes on cigars, chewing tobacco, and snuff products;
8. City of Trussville Ordinance No. 2003-034-ADM, effective October 1, 2003, imposing a $.10 tax per pack of cigarettes and $.10 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Trussville and also imposing taxes on cigars, chewing tobacco, and snuff products; and
9. City of Vestavia Hills Ordinance No. 1659-C, effective October 1, 2003, imposing a $.08 tax per pack of cigarettes and $.08 tax per package of smoking tobacco to be collected and paid by wholesalers of tobacco products delivering to retailers within the city limits of Vestavia Hills and also imposing taxes on cigars, chewing tobacco, and snuff products, as well as a license tax of $150 plus 3/4 of 1% of the annual gross sales from all tobacco products to be paid by anyone distributing tobacco products within the city limits of Vestavia Hills.
McClain argued that the above-referenced municipal ordinances were invalid because, he argued, they improperly taxed tobacco products in violation of Act No. 414, Ala. Acts 1947. The title and pertinent sections of Act No. 414 provide:
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...nine-member Alabama Supreme Court considers that law unconstitutional on separation of powers grounds. See City of Bessemer v. McClain, 957 So. 2d 1061, 1093-95 (Ala. 2006) (holding that [section] 12-2-14 is unconstitutional insofar as it limits the chief justice's right to fill a court vac......