First Nat. Bank v. Jackson County
| Decision Date | 02 November 1933 |
| Docket Number | 8 Div. 509. |
| Citation | 227 Ala. 448,150 So. 690 |
| Parties | FIRST NAT. BANK OF SCOTTSBORO v. JACKSON COUNTY. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.
Action to recover taxes by the First National Bank of Scottsboro against Jackson County. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Haralson & Son, of Fort Payne, and J. T. Jackson, of Dothan, for appellant.
Proctor & Snodgrass, of Scottsboro, for appellee.
The suit is for a recovery of taxes claimed to have been paid under mistake of law or fact, and is rested upon sections 3144, 3145, Code 1923, and section 3146, Laws 1931, p. 811.
It is contemplated, of course, that the action should be against the "proper parties or their successors," to use the language of the statute, and pleas 2 and 3 are to the effect that as to the special school taxes therein referred to, the suit against the county will not lie. A reference to the law concerning these special school taxes (Alabama School Code 1927, §§ 253 to 292, inclusive) will disclose that the tax collector is but the agency through which these taxes are collected and paid over to the proper school authorities. They never reach the county treasury, and the county has no possession or control thereof at any time. As to the one-mill school tax, section 259 of the School Code 1927, provides
And as to the three-mill county and district school tax, there are like provisions as shown by section 287 of the School Code 1927: "Whenever such a levy as is provided for in this article is made, it shall be the duty of the tax collector within and for that County to collect such tax in the same manner and under the same requirements and laws as the taxes of the State are collected, and he shall keep said amount separate and apart from all other funds, and keep a clear and distinct account thereof, showing what amount is paid, and turn the same over to the County Treasurer of school funds whose duty it shall be to receipt therefor, and pay the same on monthly pay rolls and other prescribed forms, with the authority and approval of the County Board of Education."
The county treasurer of school funds is selected by the county board of education (section 295, School Code 1927), and is entirely separate and distinct from a county depository, and as to such officer, the board of revenue of Jackson county has no authority or control.
Section 3145, Code 1923, discloses that the application for a refund is presumed to be made to the governing board having supervision of the funds, and the above noted provisions of the School Code show that the board of revenue of Jackson county gained no possession or control over these particular funds and had no authority to order the treasurer of the county board of education to make a refund thereof.
The special taxes when paid to the collector are to be kept separate and apart from all other funds and delivered to the county treasurer of school funds. They never reach the county depository out of which any judgment in favor of plaintiff must be paid, and the county board of revenue has no authority to compel a refund of such special taxes which have been used and prorated by the county board of education. Further illustrative of this view, reference may be made to the three-mill district tax, the proceeds of which under section 289 of the Alabama School Code 1927, could only be used for the benefit of the schools in that particular district. If the refund is to be made from the county depository, and therefore out of county funds, then each taxpayer of the county is affected thereby, and it would appear inequitable that those taxpayers residing outside the boundaries of that particular district, receiving no benefit from the funds, should be required, even thus indirectly, to contribute thereto; yet such is the result should the county be subjected to a judgment therefor.
We do not interpret anything said in 61 Corpus Juris 1001 and 26 R. C. L. 454, cited by appellant, as contrary to the conclusion here reached, and the authorities therein cited were not dealing with the peculiar situation here presented. Nor does the case of Ward v. First National Bank, 225 Ala. 10, 142 So. 93, add any force to appellant's position. There the taxes were paid to the collector under protest and with written notice that suit would immediately be instituted for its recovery, which was presumably done before any distribution made. That suit was, moreover, brought independently of the statute upon which this action is rested.
We therefore conclude that pleas 2 and 3 were not subject to the demurrers interposed thereto.
Plaintiff's last payment was made January 20, 1931. The present action was commenced on October 11, 1932. As originally enacted, the statute permitted a recovery within six years from the date of payment. Section 3146, Code 1923. But by the Act approved July 28, 1931 (General Acts 1931, p. 811), this section was rewritten with the single change of a substitution of one year in the place of six for the commencement of the suit, and it appears the present suit was brought more than one year after the approval of the amendatory act. This section and the two preceding constituted one act (General Acts 1907, p. 639), and were codified therefrom.
A county is a mere political subdivision of the state, and no right to a suit against it exists except by statute. Ex parte State, 52 Ala. 231, 23 Am. Rep. 567; Hamilton v. Jefferson County, 209 Ala. 517, 96 So. 628. Prior to the enactment of what is now section 181 of the Code 1923, the county was not subject to suit, and since that time and prior to the enactment here in question, any such suit was subject to the limitations of the present Code, section 228. Lowndes County v. Hunter, 49 Ala. 507.
By the Act of 1907 (sections 3144-3146, Code 1923), therefore, the Legislature granted to taxpayers, who paid their taxes under an invalid law, a new privilege or benefit, for prior thereto no action would lie for taxes voluntarily paid. Raisler v. Mayor, etc., of Athens, 66 Ala. 194; Gachet v. McCall, 50 Ala. 307.
As said in Luke v. Calhoun County, 56 Ala. 415: "The legislature has full power to take away by statute rights not vested, which have been conferred by statute." See, also, Blake v. State, 178 Ala. 407, 59 So. 623. And speaking of the repeal of a statute conferring a right...
To continue reading
Request your trial
-
Yeilding v. State ex rel. Wilkinson
... ... Appeal ... from Circuit Court, Jefferson County; John Denson, Judge ... Quo ... warranto by the ... two questions of real moment to be determined. First, does ... the act deal with two subjects, county and ... Co., 227 Ala. 428, ... 150 So. 328. And in First Nat. Bank of Scottsboro v ... Jackson County, 227 Ala. 448, ... ...
-
Cofer v. Ensor
...will must prevail. Fidelity & Deposit Co. of Maryland v. Goodwyn, 231 Ala. 44, 163 So. 341 (1935); First National Bank of Scottsboro v. Jackson County, 227 Ala. 448, 150 So. 690 (1933). The last expression in this instance would indicate that the legislature preferred the right of action co......
-
McGregor v. McGregor
... ... Jefferson County. There were no surviving children. In ... addition to the ... 541, 26 So. 285; ... O'Rear v. Jackson, 124 Ala. 298, 26 So. 944; ... Bailes et al. v. Daly et ... Calhoun County, 56 ... Ala. 415. See, also, First National Bank v. Jackson ... County, 227 Ala. 448, 150 So ... ...
-
Stone v. State ex rel. Horn
... ... Clifford Horn, ... payable out of the county treasury in an amount not exceeding ... $2000.00, to be ... except such as are provided by statute. First National ... Bank v. Jackson County, 227 Ala. 448, 150 So ... ...