Commissioners' Court of Calhoun County v. City of Anniston

• Decision Date: 04 April 1912
• Citation: 176 Ala. 605,58 So. 252
• Court: Alabama Supreme Court
• Parties: COMMISSIONERS' COURT OF CALHOUN COUNTY v. CITY OF ANNISTON.

58 So. 252

176 Ala. 605

COMMISSIONERS' COURT OF CALHOUN COUNTY v. CITY OF ANNISTON.

Supreme Court of Alabama

April 4, 1912

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Petition for mandamus by the City of Anniston against the Commissioners' Court of Calhoun County. From a judgment for petitioner, defendant appeals. Affirmed.

H. D McCarty and Tate & Walker, all of Anniston, for appellant.

C. H Young and Blackwell & Agee, all of Anniston, for appellee.

DOWDELL C.J.

This appeal is taken from the judgment of the city court of Anniston on the petition of appellee, awarding a peremptory writ of mandamus to issue requiring the commissioners' court of Calhoun county to pay over to the city of Anniston a pro rata of the road tax levied and collected by the commissioners' court for certain years mentioned in the petition. Motion was made to strike the petition, and demurrer interposed, which motion and demurrer were overruled by the court; and the cause was then heard on the facts and a judgment rendered in favor of the petitioner.

There are three assignments of error, but, as counsel for appellant say in brief, they raise one and the same question, and are argued together; and we will here so treat the case. There is no distinction in principle on the facts between this case and the case of the Board of Revenue v. Birmingham, decided at the last term of this court, and to be found reported in 54 So. 757. It appears from the record in the present case that in the years 1907, 1908, 1909, and 1910, under the provisions of an act of February 28, 1889, and an amendatory act thereof, approved February 11, 1891, to authorize the commissioners' court of Calhoun county to levy taxes for working the public roads of said county, a special tax of 3/20 of 1 per cent. on the taxable property of the county was levied for the purpose of repairing and building public roads in the county, and that this tax was a part of the 1/2 of 1 per cent. authorized by section 215 of the Constitution of 1901 for general purposes. The act of February 28, 1889 (Acts 1888-89, p. 866, § 2), authorized the levy of a special tax of 1/10 of 1 per cent. for road purposes, and expressly provided, "which shall be a part of the one-half one per cent. now authorized by the Constitution for county purposes." And the amendatory act of February 11, 1891 (Acts 1890-91, p. 564), which authorized the levy of 3/20 of 1 per cent., provided as follows: "That the said commissioners' court shall levy a special tax not to exceed three-twentieths of one per cent. on the taxable property of the county, which shall be a part of the one-half one per cent. now authorized by the Constitution for county purposes, to be assessed and collected as other taxes, and when paid into the treasury it shall be kept separate from other taxes and used only...