Harmon v. County Board of Education
| Decision Date | 11 April 1935 |
| Docket Number | 5 Div. 200 |
| Citation | 230 Ala. 260,160 So. 687 |
| Parties | HARMON et al. v. COUNTY BOARD OF EDUCATION et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Elmore County; Walter B. Jones, Judge.
Bill to enjoin assessment and collection of special school tax by H.V. Harmon and others against the County Board of Education of Elmore County and others. From a decree sustaining a demurrer to the bill, complainants appeal.
Affirmed.
Huddleston & Jones, of Wetumpka, and L.H. Ellis, of Columbiana, for appellants.
C.T Reneau and Holley & Milner, all of Wetumpka, for appellees.
Complainants seek to invalidate the special school district tax of 30 cents on each $100 worth of taxable property in special school tax district A of Elmore county.
The primary and essential condition upon which an election for such a tax is authorized to be ordered and held is the fact that the county is already levying and collecting such a tax. Ala. School Code, 1927, § 262, Acts 1919, p. 607. Third Amendment to Ala. Const., vol. 1, Code 1923, p. 429; Gantt v. Court of County Commissioners, 210 Ala 125, 97 So. 129; Wall-Hay-Wall Lumber Co. v Mathews, 211 Ala. 426, 100 So. 824.
On November 10, 1931, an election was held in Elmore county, and as a result a special 3-mill county tax for public school purposes was voted, and the result thereof duly declared.
Upon the face of the proceedings there appears no irregularity and since said election the tax authorized thereby has been continuously levied and assessed. But complainants attack this county-wide school tax for matter dehors the record, insisting that the published notice of the election was so defective as to render the same void, and that, therefore, there is no such county tax. The argument is that the election notice fails to properly state "the rate of such proposed tax," as provided by section 263 of the Alabama School Code 1927, and much reliance is had upon Shanks v. Winkler, 210 Ala. 101, 97 So. 142, 144.
In the Winkler Case, supra, the notice was not published a sufficient length of time, a matter considered of vital importance in view of the fact that the election was a special one, with no time fixed for holding the same except that provided in the published notice; and the conclusion here was that the emphatic and mandatory provision of the statute in this regard must be given effect, the opinion in placing emphasis upon the language of the statute requiring at least the thirty days notice, saying: "If the notice for less than 30 days be made to suffice, to what end and with what effect did the Legislature prescribe that 'the sheriff must give notice at least thirty (30) days before any election to be held under this Act?' " The opinion expressly disavows any inclination "to interfere with the result of this election on any narrow or technical ground," but observes further that "the language of the statute controlling the matter of notice is unusual, exclusive, emphatic, mandatory," and the cases of Commissioners' Court v. State, 151 Ala. 561, 44 So. 465, and Hearn v. Court of County Commissioners, 182 Ala. 392, 62 So. 535, are therein differentiated. The Winkler Case, supra, was dealing with the one essential of the length of time of the notice, and is properly to be viewed in that light. There is nothing in that opinion which would indicate any matter of irregularity in the wording of the notice as to the rate or duration of the tax, which would suffice to invalidate the election unless, indeed, it would appear the result was rendered doubtful by reason thereof. And, indeed, the concluding paragraph of the opinion in the Winkler Case is supportive of this view.
The irregularity as to the notice here in question is of this latter class. The published notice is as follows:
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Harris v. Cope
...183 So. 407 236 Ala. 415 HARRIS v. COPE ET AL., BULLOCK COUNTY BOARD OF EDUCATION. 4 Div. 53.Supreme Court of AlabamaSeptember 27, 1938 ... page 68. Harmon v. County Board of Education, 230 ... Ala. 260, 160 So. 687; Johnson v ... ...
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Opinion of the Justices, 164
...statutes passed by the Legislature. Cases so holding are Johnson v. Rice, 227 Ala. 119, 148 So. 802(1); Harmon v. County Board of Education, 230 Ala. 260, 160 So. 687(4); Southern Ry. Co. v. Webb, 232 Ala. 324, 167 So. 729(4); Runyan v. Thompson, 232 Ala. 390, 168 So. 423(1); Harris v. Cope......
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Bozeman v. Conecuh County Bd. of Ed.
...statutes passed by the Legislature. Cases so holding are Johnson v. Rice, 227 Ala. 119, 148 So. 802(1); Harmon v. County Board of Education, 230 Ala. 260, 160 So. 687(4); Southern Ry. Co. v. Webb, 232 Ala. 324, 167 So. 729(4); Runyan v. Thompson, 232 Ala. 390, 168 So. 423(1); Harris v. Cope......
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Southern Ry. Co. v. Webb
...in any event constitutes an irregularity well within the curative act of 1931. Johnson v. Rice, 227 Ala. 119, 148 So. 802; Harmon v. County Board of Education, supra. We discussed the matters argued in brief by appellant, and find no error to reverse. The judgment will accordingly be here a......