Harris v. Cope

• Decision Date: 27 September 1938
• Docket Number: 4 Div. 53.
• Parties: HARRIS v. COPE ET AL., BULLOCK COUNTY BOARD OF EDUCATION.
• Court: Alabama Supreme Court

183 So. 407

236 Ala. 415

HARRIS v. COPE ET AL., BULLOCK COUNTY BOARD OF EDUCATION.

4 Div. 53.

Supreme Court of Alabama

September 27, 1938

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Bill for declaratory judgment respecting the validity of proposed warrants for the payment of which special county school taxes were to be pledged, by J. L. Harris, individually and as Treasurer of Bullock County Board of Education, against R. E L. Cope and others, constituting Bullock County Board of Education, the individuals constituting the Court of County Commission of Bullock County, the Superintendent of Education, the Tax Collector and Tax Assessor of said County. From a decree favorable to the respondents, the complainant appeals.

Affirmed.

Lawrence K. Andrews, of Union Springs, for appellant.

R. E L. Cope, Jr., of Union Springs, for appellees.

FOSTER Justice.

This is a suit whose purpose is to settle certain controversies which have arisen respecting the validity of a proposed issue of school warrants to be preferred claims against the three mill special school tax provided by Article 19, Amendment No. 3 of the Constitution. The warrants proposed to be issued are under authority of the Act of the Legislature approved April 6 1936, Ex.Sess., page 58. They are dependent therefore upon the validity of the special school tax which is now being levied and collected. The main issue between the parties relates to the validity of the proceedings under which that tax is authorized.

Such a tax had been in existence in that county since 1919 under prior proceedings. The last year in which it was payable was that beginning October 1, 1928.

On June 11, 1928, a petition was presented to the Commissioners' Court of the County calling attention to the fact that the tax expires with the year 1928-1929, which, we assume, means the tax year beginning October 1, 1928, in which payment was due for the assessment made for the tax year beginning October 1, 1927, and prayed for an election to be called and held on July 17, 1928, to determine if the tax shall be levied and collected to be effective in the year 1929-1930, and be continued for twenty-five years from October 1, 1929.

The court acted on the petition and called the election on the question "to take effect within the year 1929-1930, and that it be continued for a period of twenty-five years from October 1, 1929, as now provided by law." Notice of the election was given in which the tax to be levied and collected was described as beginning with the year 1929-1930 and ending with 1953-1954. The ballot used in the election, though not appearing in the record of the proceedings, was in the following form, in so far as here material: "Shall the Court of County Commissioners of Bullock County, Alabama, levy and collect annually for a period of twenty-five years, from October 1, 1928, a special tax of Thirty (30) cents on each one hundred (100) dollars worth of taxable property in said county for the support of the public schools in said county?"

An election was held, the votes canvassed, and the result declared, showing three hundred and seventy votes for and one hundred and thirty-six votes against the proposal. The result was declared to be favorable, and the court ordered the tax levied for the years 1929-1930 to 1953-1954, inclusive.

As of October 1, 1928, the tax assessor assessed the tax, and as of October 1, 1929, it was collected by the tax collector, and has been assessed and collected annually each year since to and including the present year.

The constitutional provision is that "the time it is to continue" shall be voted for by a majority of those voting at the election.

The contention is that the tax voted on by the electors was declared in their ballot to continue twenty-five years from October 1, 1928, and the proceedings had by the commissioners' court, and notice of the election recited that it was to continue for twenty-five years from the year 1929-1930. The contention therefore is that the voters did not vote for a tax to continue from October 1, 1929, which was the nature of the tax levied, and that therefore the Constitution was not complied with.

We assume for the purpose of this discussion that the provision of the Constitution, to which we have referred, as usual with its requirements is mandatory and not directory. Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703. Compare Shanks v. Winkler, 210 Ala. 101, 97 So. 142; Realty Inv. Co. v. City of Mobile, 181 Ala. 184, 61 So. 248; Dent v. Eufaula, 199 Ala. 280, 74 So. 369; Thomason v. Court of County Com'rs, 184 Ala. 28, 63 So. 87; Ryan v. Tuscaloosa, 155 Ala. 479, 46 So. 638, 639.

While the mandates of the Constitution must be observed, any effort to do so should have a reasonable interpretation. Tommie v. City of Gadsden, 229 Ala. 521, 158 So. 763.

The confusion of dates is but a failure in the various steps of the proceedings to note whether reference is made to the year when the tax shall be assessed or that when it shall be payable. Property is assessed for taxation as of October 1, of each year,--Gen.Acts 1919, page 298, section 42,--and the taxes so assessed shall become due and payable on the first of the next October. Gen.Acts 1919, page 287, section 6. So that when it is said that a certain tax shall commence October 1st of a certain year, it is not always clear by that alone whether it is meant that the assessment shall first be made that year or its payment. But such a stipulation will be construed in the light of the recitals and facts shown throughout the whole proceeding. It is clear in this case, when so interpreted, what the meaning is.

The ballot was for the "levy and collection" of a tax beginning October 1, 1928. In the other proceedings in some places it is stipulated that the tax shall be levied and collected for the years 1929-1930 to 1953-1954. We judicially know that the levy and collection does not ordinarily begin with the same tax year. But the last collection under the preceding levy was made in the year beginning October 1, 1928. When in one place it is said that the tax is to be levied and collected beginning October 1, 1928, and in another it is to be levied and collected beginning October 1, 1929, in connection with the circumstances that the last preceding payment was made in the year beginning October 1, 1928, the whole together show clearly that the intention was to make the first assessment under the new proceeding begin with the tax year October 1, 1928, and that the payment of it was to begin October 1, 1929, and each was to continue for twenty-five years, from the beginning of such period.

When so interpreted, we think the Constitution was complied with insofar as the requirement now under consideration is concerned.

Moreover, any conflicts in respect to the date in question could well be treated as irregularities, since the voters did vote on the time in which the tax would continue, to-wit, twenty-five years from October 1, 1928. Different statements in the other proceedings may be treated as mere irregularities which, if not self-correcting, are cured by the Act of January 24, 1935, page 7, and of April 6, 1936, Ex.Sess., section 23, page 68. Harmon v. County Board of Education, 230 Ala. 260, 160 So. 687; Johnson v. Rice, 227 Ala. 119, 148 So. 802; Southern Ry. Co. v. Webb, 232 Ala. 324, 167 So. 729.

Another contention is that the first payment on the principal of the proposed warrants is not to be made "in the next fiscal year after this date," but that only an interest payment is thus made to become payable. Section 4 of the Act of 1936, supra, pages 58, 61 and 62 controls this question. The requirement there made is declared to be directory and not to affect the validity of the warrants. Compare also section 14 of the Act.

By their express terms the situation here disclosed does not affect the binding force and full effect of the...