Court of County Revenues for Lawrence County v. Richardson

• Decision Date: 23 June 1949
• Docket Number: 8 Div. 516.
• Citation: 41 So.2d 749,252 Ala. 403
• Parties: COURT OF COUNTY REVENUES FOR LAWRENCE COUNTY et al. v. RICHARDSON.
• Court: Alabama Supreme Court

41 So.2d 749

252 Ala. 403

COURT OF COUNTY REVENUES FOR LAWRENCE COUNTY et al. v. RICHARDSON.

8 Div. 516.

Supreme Court of Alabama

June 23, 1949

R L. Almon and Thos. Pettus, of Moulton, and S. A. Lynne, of Decatur, for appellants.

Julian Harris and Norman W. Harris, of Decatur, for appellee.

STAKELY Justice.

This case presents two separate appeals, which by agreement for the parties are consolidated and shown by one record and submitted together. Appellee has made cross assignments of error in each appeal. One appeal is from a decree overruling appellants' demurrers to the bill of complaint as as whole and to several phases of the bill. In that appeal the appellee cross assigns as error that part of the decree which sustained appellants' demurrer to one phase of the bill. The other appeal is by the same appellants from a decree granting a preliminary injunction on application of appellee after notice and hearing. In that appeal the appellee cross assigns as error that part of the decree which denied his application in one respect.

The bill of complaint was filed by J. B. Richardson (appellee) as a taxpayer suing for himself and over 4,000 other taxpayers similarly interested against Lawrence County, the governing body of the county and the individual members thereof, the county depository, the tax assessor and the tax collector. All of the respondents are appellants here except the last two.

Both the tax assessor and tax collector appeared and filed an answer admitting the allegations of fact contained in the bill and praying for instructions from the court as to their official duties in the premises. They submitted themselves to the jurisdiction of the court and waived notice of further proceedings in the cause.

The bill sought a declaratory judgment as to the rights of Lawrence County to make further collection of a special three mill courthouse tax and as to the purposes for which proceeds of the tax on hand could be used. It also sought to enjoin further assessment and collection of the tax and to enjoin any expenditures or disbursements of the proceeds of the tax for any purpose other than the payment of the courthouse bonds for the payment of which the tax was authorized and levied. It also sought to require the county to restore to the special fund into which the collections from the courthouse tax were required to be deposited all amounts illegally diverted from that fund. The bill finally prays that the amount by which the courthouse tax proceeds on hand exceeded the amount necessary to pay principal and interest on the outstanding courthouse bonds, be declared a trust fund for the benefit of the taxpayers who have paid the same during the last tax year and be distributed to them in accordance with their respective interests therein after deducting therefrom court costs and a reasonable solicitor's fee.

Since the rights and obligations of the parties grow out of amendment XXX to the Constitution of Alabama, we think it will be helpful to set out this amendment at this time.

'XXX

Lawrence County Bonds.

'Lawrence county may become indebted any may issue bonds therefor in an amount not exceeding $130,000 in addition to that now authorized, for the construction of and equipping of a courthouse in said county. To pay said indebtedness, and interest thereon, Lawrence county may levy and collect an annual tax on all property situated therein at a rate not in excess of 3 mills. The indebtedness, the bonds and the tax authorized hereby shall be in addition to those authorized prior to the adoption of this amendment. But no such additional indebtedness shall be incurred, no such bonds shall be issued and no such tax shall be levied until the estimated cost of construction and equipping of said courthouse hereby proposed to be built, its name of completion, and the amount of the increased indebtedness, the rate of interest to be paid thereon, and the period over which the bonds to be issued will be refunded, shall have been determined upon and made public by the county governing body of said county; and the proposed increase in indebtedness and the issuance of bonds and the increase in rate of taxation first shall have been authorized by a majority of the qualified electors of said county voting upon such proposal at an election to be called by said county governing body for said purposes to be held not less than sixty (60) nor more than (120) one hundred twenty days after the adoption of this amendment.'

The legislature adopted an enabling act, Local Acts of Alabama 1935, p. 257, which contained the following provisions:

'Section 1. That the Governing Body of Lawrence County be and it is hereby empowered, authorized and directed to order an election, as hereinafter provided, to submit to the qualified electors of said county a proposal to authorize said county to issue bonds in a sum not exceeding $130,000 for the purpose of constructing and equipping a courthouse and jail building, and to levy and collect over a period not exceeding twenty-five (25) years, a tax on all taxable property in said county at a rate not exceeding three mills, to provide a fund for the payment of the principal and interest of said indebtedness.

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'Section 6. If upon a canvass of the returns of said election, it shall be determined that a majority of the qualified electors of the county participating therein have voted for the proposal, the county governing body shall proceed to the construction and equipping of said courthouse and jail building by advertising for bids therefor, as in such cases made and provided; and shall proceed to levy a tax authorized by said election, and shall continue the same for the period of years specified upon said ballot. And the said Governing Body shall proceed to issue and sell bonds for not more than the amount authorized by said election to finance the construction and equipping of said courthouse and jail building.'

The averments of the bill show that pursuant to amendment XXX the voters of Lawrence County at an election held on March 10, 1936 authorized the county to borrow $130,000 for constructing and equipping a courthouse and authorized the levy of a tax of not more than three mills annually over a period of not exceeding 25 years for the purpose of paying the indebtedness. The proposal submitted to the voters at the special election was as follows: 'Shall the indebtedness of Lawrence County be increased by issuance and sale of bonds in the amount of not more than $130,000.00 and said sum expended upon the construction and equipping of a courthouse and jail building; said bonds to bear interest at a rate of not exceeding 6% per annum, payable annually (or payable semi-annually) and to mature not later than Twenty-five (25) years from issue date (or to mature not less than 1/25 portion thereof annually on the anniversary of issue over a period of Twenty-five (25) years.) The said indebtedness of not more than $130,000.00 to be paid by the levy of a tax in addition to all of the taxes now levied and collected, on all taxable property situated in Lawrence County, of not exceeding three mills; the said tax to be levied and collected annually over a period of not exceeding Twenty-five (25) years. The said courthouse and jail building to be completed within twenty-four (24) months of the date of the approval of its construction by a majority of the qualified electors participating in this election.'

After the foregoing election the county issued 130 courthouse bonds in the principal sum of $1,000 each and in the aggregate amount of $130,000 bearing interest at the rate of 4 1/2 percent per annum payable semi-annually on April 1st and October 1st with the principal payable as follows: April 1, 1937 $5,000; April 1, 1938 $5,000; April 1, 1939 $6,000; April 1, 1940 $6,000; April 1, 1941 $6,000; April 1, 1942 $7,000; April 1, 1943 $7,000; April 1, 1944 $7,000; April 1, 1945 $8,000; April 1, 1946 $8,000; April 1, 1947 $8,000; April 1, 1948 $8,000; April 1, 1949 $9,000; April 1, 1950 $10,000; April 1, 1951 $10,000; April 1, 1952 $10,000; April 1, 1953 $10,000.

On April 13, 1936 the Court of County Revenue levied the 3 mill courthouse tax for the years 1936 to 1952, inclusive, its resolution being as follows: 'Under and by virtue of the Constitution and Laws of the State of Alabama, the Board of Revenue, or Court of County Revenues, does hereby levy the following special taxes, known as the Courthouse tax, the same to be in addition to all other general and special taxes now levied in this county, on all property and subjects of taxation within this county for the year 1936, and each succeeding year thereafter until and including the year 1952, to-wit: Three tenths of one percentum or thirty cents on each hundred dollars worth of taxable property to be used exclusively for the construction of and equipping a courthouse in Lawrence County, Ala. Said tax so levied shall be used only for the construction and equipping of a courthouse in said County and shall, when collected, be kept separate and apart from any other general or special tax and shall not be used or pledged for any other purpose or purposes than herein stated.'

All of the bonded indebtedness has been paid that was due up to and including April 1, 1949, leaving an unpaid balance totaling $40,000 maturing in aggregate amounts of $10,000 each in 1950, 1951, 1952 and 1953. These bonds are not callable. The balance in the depository in the special courthouse retirement fund is $44,500.

The allegations of the bill show that the courthouse tax has produced a surplus and that the county has on hand as a result of collections from the courthouse tax an amount more than sufficient to pay the outstanding bonds both as...