Ex parte Tuscaloosa Vending Co., Inc.

• Decision Date: 08 November 1985
• Docket Number: No. 84-828,84-828
• Citation: 480 So.2d 1224
• Parties: Ex parte TUSCALOOSA VENDING COMPANY, INC. (Re: TUSCALOOSA COUNTY SPECIAL TAX BOARD v. TUSCALOOSA VENDING COMPANY, INC.)
• Court: Alabama Supreme Court

Page 1224

480 So.2d 1224

Ex parte TUSCALOOSA VENDING COMPANY, INC.

(Re: TUSCALOOSA COUNTY SPECIAL TAX BOARD v. TUSCALOOSA VENDING COMPANY, INC.)

No. 84-828.

Supreme Court of Alabama.

Nov. 8, 1985.

Special Concurring Opinion Nov. 22, 1985.

Certiorari to the Court of Civil Appeals (Civ. 4626).

J. Sydney Cook III, Rosen, Harwood, Cook & Sledge, Tuscaloosa, for petitioner.

John A. Owens and John D. Humber, Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for respondent.

PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.

JONES, J., dissenting.

ADAMS, J., not sitting.

JONES, Justice (dissenting).

We issued the writ of certiorari to the Court of Civil Appeals to review the question whether a cash payment of court costs is a sufficient substitute for the giving of a "bond conditioned to pay all costs" in connection with the filing of an appeal to the circuit court from an adverse decision of a taxing authority. The requirements for filing such an appeal are statutorily mandated and are codified in Code 1975, § 40-2-22, and at section 10 of the Tuscaloosa County Sales and Use Tax Laws.

Section 40-2-22 concerns appeals of decisions by the State Department of Revenue, and requires payment of assessments when appealing such decisions. Because the original appeal to the circuit court was for a tax refund, this requirement, definitionally, has been met. Section 10 of the Tuscaloosa County Tax Laws incorporates this requirement as one for appealing decisions of the county taxing authority. The only mention of requiring some security for costs in § 40-2-22 is in connection with appeals from the circuit court to the Supreme Court.

Section 10 of the Tuscaloosa County Sales and Use Tax Laws deals more specifically with the type of appeal which was involved in this case. That section does require the giving of a bond conditioned to pay all costs.

The only cost associated with the trial in the circuit court, however, was the docketing fee of $65. While no bond was filed with the court, this amount was paid in cash at the time of filing the appeal from the taxing authority.

The purpose of requiring the bond, it seems evident, is to insure that all costs connected with the trial will be paid, despite the outcome of the trial. As incongruous as it may seem, Alabama case law held at one time that cash was not an adequate substitute for a bond (Finley v. Pless, 287 Ala. 596, 253 So.2d 521 (1971)). See, however, committee comments to Rule 7 of the Alabama Rules of Appellate Procedure. See, also, Justice Maddox's dissent in Finley. Historically, there was no fee associated with the filing of a suit. All costs were taxed at the conclusion of the case. To insure the payment of costs, the State legislature enacted the subject statute requiring a bond for costs in appeals of this nature. The filing fee was a later development which occurred at the time the courts of this State were restructured in 1975. The filing fee served essentially the same purpose as the bond--to assure the payment of court costs.

The docket or filing fee, including the amount of such fees, is also a statutory device. Code 1975, §§ 12-19-70, -71. Because of their historical development, these two devices overlap in their purposes, and the satisfaction of a requirement for one may satisfy a requirement for the other, though the two are not strictly synonymous.

The taxing authority contends that this Court should give to the subject statute a strict construction, which would require the filing of a bond for costs as a requisite of a perfected appeal. Because the Petitioner did not file a bond for costs within the time for the taking of...