City of Mobile v. Salter

• Decision Date: 24 November 1971
• Docket Number: 1 Div. 663
• Citation: 287 Ala. 660,255 So.2d 5
• Parties: CITY OF MOBILE, a Municipal Corporation v. Otha C. SALTER et al.
• Court: Alabama Supreme Court

Page 5

255 So.2d 5

287 Ala. 660

CITY OF MOBILE, a Municipal Corporation v. Otha C. SALTER et al.

1 Div. 663.

Supreme Court of Alabama.

Nov. 24, 1971.

Edmund R. Cannon, Jr., W. Ramsey McKinney, Jr., Mobile, for appellant.

Simon & Wood, Mobile, for appellees.

MERRILL, Justice.

This appeal is from a decree in a declaratory judgment proceeding wherein an ordinance of the City of Mobile levying taxes on real estate in Highpoint Estates was held invalid because it was in conflict with Act No. 18, General Acts of Alabama 1956, p. 279, Second Special Session.

In the spring of 1956, the City of Mobile was sponsoring a bill to annex 64 square miles of new territory which included the Highpoint Estates area. The city commissioners had numerous meetings with the legislative delegation from Mobile County and the delegation agreed to introduce and pass the bill provided the commissioners would agree that no city ad valorem taxes would be levied on the newly annexed territory until certain agreed services were furnished to the inhabitants of the area. There was a meeting of the minds and the bill was advertised the required time for a proposed local bill, introduced, passed and after approval on March 16, 1956, was designated Act No. 18.

Section 1 of the bill gave it the name of 'the Greater Mobile Act.' Section 2 extended the boundaries of the city to include the new 64 square miles. Section 3, which is the crucial point in this litigation, provides in pertinent part:

'Any area which is located within the boundaries of the City of Mobile, as set out in section one (sic) above, but which was not a part of the City of Mobile prior to the passage of this act fixing the above said boundaries, shall not be subject to assessment for ad valorem taxation by the City of Mobile until the said City of Mobile shall make available, furnish or cause to be furnished through any board whose members are appointed by the City of Mobile, to said area and the residents thereof the following municipal services: police protection, fire protection, garbage collection street lighting, water service, sanitary sewer service, and street maintenance. The city commission of the City of Mobile, each year when it adopts an ordinance assessing real property within the City of Mobile for ad valorem taxation shall describe in said ordinance the area which has previously been subject to the city's ad valorem taxation and shall describe in addition thereto such other areas within the boundaries as set out in section one (sic) above in which the city commission is furnishing all of the above described services during the year for which said ad valorem tax is being levied; and said ordinance shall also describe the areas within the City of Mobile where all of said services are not being rendered and shall exempt such areas from city ad valorem taxation for said year. * * *' No city ad valorem taxes were levied against Highpoint Estates until the city passed Ordinance No. 50--049 on May 11, 1965.

The original bill seeking a declaration of rights was filed by complainants for themselves and other property owners in Highpoint Estates. The bill alleged the passage of Act No. 18, quoted Section 3 of the Act, alleged the passage of City Ordinance No. 50--049 and alleged that a justiciable controversy existed between them and the city in that the city' had not complied with the conditions and provisions of Act. No. 18.'

Amendments to the bill contained a letter written by the mayor to one of the taxpayers on April 1, 1966, that their money paid for city ad valorem taxes would be refunded if the city failed to render 'complete services' by October 1, 1966. But on January 17, 1967, one of the property owners received a letter from the city clerk stating that the city commissioners had instructed the city attorney to obtain a declaratory judgment to determine the legality of the refunds.

The demurrer to the bill as last amended was overruled and the city filed an answer and cross bill in which, for the first time, the constitutionality of Section 3 of Act No. 18 was challenged. Counsel for the city requested that the attorney general be served and the record shows service of 'a CROSS bill of Complaint & Amended Bill' on him by the sheriff of Montgomery County.

On April 25, 1969, a month before the trial was had on May 26, 1969, the instant case was consolidated with the case of Snow v. City of Mobile, 287 Ala.--, 255 So.2d 11, which was a similar suit brought by property owners of another subdivision, the Riviera de Chien area, where the same issues were involved.

It was undisputed at trial, and conceded here, that the city had not furnished sanitary sewer service to the Highpoint Estates area until November or December of 1968. The trial court found and decreed that (1) Act No. 18 of the Alabama Legislature is constitutional; (2) Complainants constitute a class consisting of all residents of the Highpoint Estates area; (3) City of Mobile Ordinance No. 50--049 is invalid as to property located in Highpoint Estates because contrary to Act No. 18; (4) any assessment of property in Highpoint Estates pursuant to the ordinance was invalid; (5) any attempted collection of taxes upon such property pursuant to the ordinance was invalid; and (6) the City of Mobile refund all taxes paid pursuant to assessments on such property.

On appeal, we are first faced with a procedural question. We note that counsel for appellant on appeal did not participate in the trial. Appellant contends that complainants never caused the attorney general to be served with their petition for declaratory judgment, that the petition challenged the constitutionality of the city ordinance levying the taxes, and having failed to serve the attorney general, the court never acquired jurisdiction of the action. We cannot agree.

Title 7, § 166, Code 1940, provides in part '* * * and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard.'

But we do not construe the bill as amended, including the prayer, to do more than seek a declaration of rights of the complainants under the statute, Act No. 18. Issues are raised by the pleadings. The first time any allegation was made that the statute, Act No. 18, was unconstitutional was in the city's answer and cross bill, and the attorney general was served at that stage and notified that the constitutionality of Act No. 18 had been raised in the cause. The fact that the attorney general is not served or does not file a waiver early in the proceedings does not deprive the trial court of jurisdiction. Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 211 So.2d 451.

We come now to the merits. Appellant contends that Section 3 of Act No. 18 is unconstitutional in that it violates §§ 104(25), 104(9), 108, 104(15), 211 and 217 of the Constitution of 1901.

Section 104 begins, 'The legislature shall not pass a special, private, or local law in any of the following cases: (25) Exempting property from taxation or from levy or sale.'

The only construction of § 104(25) by this court we have found is Opinion of the Justices, 262 Ala. 345, 81 So.2d 277. The pending bill in the legislature levied a county privilege license tax on electric public utilities, but § 6 of the bill exempted distributors or sellers of electricity whose business was not subject to regulation by the Public Service Commission. Question 5 of the request for advisory opinion read: 'If H. 39 is duly enacted, would the provisions of Section 6 thereof make the act violative of Section 104(25) of the Constitution?' The answer of six members of the court was:

'Section 104, subsec. (25), of our State Constitution is made the basis of Question 5. In substance, this constitutional provision says that the legislature shall not pass a special, private, or local law exempting property from taxation or from levy or sale. It is our opinion that subsec. (25) has no application to a law which levies a tax but which also provides for certain exemptions from the tax so levied. We answer your Question 5 in the negative.' (Emphasis supplied)

It is next contended that Section 3 of Act No. 18 is contrary to Section 104(9) which prohibits the legislature from passing a local law, '(9) Exempting any individual, private corporation, or association from the operation of any general law', and Section 108 which states:

'The operation of a general law shall not be suspended for the benefit of any individual, private corporation, or association; nor shall any individual, private corporation or association be exempted from the operation of any general law except as in this article otherwise provided.'

Act No. 18 does not purport to exempt any individual, private corporation or association from the operation of any general law. The property involved continued to be subject to all the taxes, state and county, that it had previously been, and Act No. 18 states that it would not be subject to new city taxes until certain services, including sanitary sewers, were furnished by the city. That was the main part of the agreement between the city, the people affected and the legislative delegation. And the city lived up to the agreement from 1956 to 1965 when it first sought to levy city taxes without furnishing all the listed services it had agreed to furnish.

As to Section 108, we find no suspension of any provision of the general law. Appellant states that the general law here involved is Tit. 37, §§ 698--732, Code 1940 (Optional Method of Collecting Municipal Taxes). But the authority to tax is contained in Tit. 37, § 670, which states that '* * * cities and towns may levy taxes upon property and all subjects of taxation liable therefor, * * *.' The property here involved had never before been liable for city ad valorem taxes and the very same act which brought the property...