Jackson v. Board of Revenue of Choctaw County

• Decision Date: 18 November 1926
• Docket Number: 2 Div. 894
• Citation: 110 So. 799,215 Ala. 418
• Parties: JACKSON et al. v. BOARD OF REVENUE OF CHOCTAW COUNTY.
• Court: Alabama Supreme Court

110 So. 799

215 Ala. 418

JACKSON et al. v. BOARD OF REVENUE OF CHOCTAW COUNTY.

2 Div. 894

Supreme Court of Alabama

November 18, 1926

Rehearing Denied with Modification, Jan. 13, 1927

Appeal from Circuit Court, Choctaw County; T.J. Bedsole, Judge.

Petition of G.C. Jackson and others for common-law certiorari to the Board of Revenue of Choctaw County. From a judgment dismissing their petition, petitioners appeal. Reversed and remanded.

Sayre and Miller, JJ., dissenting.

Hollis & Edgar, of Butler, and A.B. Chilton, of Montgomery, for appellants.

J.D Lindsey, of Butler, Thos. F. Seale, of Livingston, and Adams & Gillmore, of Grove Hill, for appellee.

GARDNER J.

Appellants filed their petition in the circuit court of Choctaw county for common-law writ of certiorari for review of the proceedings before the board of revenue of said county concerning the judgment of said court levying a 3-mill school tax for Mt. Sterling school district No. 9, and praying that said proceedings be quashed as null and void. The judgment of the circuit court sustains these proceedings and dismisses the petition, and from this judgment petitioners have prosecuted this appeal.

The petition was filed and the writ ordered to issue September 23, 1925. The election, pursuant to the previous order of the board of revenue, was held July 3, 1925, and on July 7 thereafter, said board canvassed the return of said election, declared the result in favor of the tax, and ordered the same levied.

It appears without controversy that at the time of the filing of the petition, September 23, 1925, it did not anywhere appear in the records of the board of revenue, in regard to such tax levy, that the county of Choctaw was then levying and collecting special county taxes for school purposes of not less than 30 cents on each $100 worth of taxable property in such county, or that the said board of revenue had ascertained such fact.

In Gantt v. Court of Commissioners of Covington County, 210 Ala. 125, 97 So. 129, it was expressly held that--

"The primary and essential condition upon which alone such an election is authorized to be ordered and held is the fact that county is already levying and collecting such a tax. This fact is therefore the basis of the court's jurisdiction in the premises; and since as to this subject the court is one of limited statutory power, it is necessary that the records of the court should affirmatively show the existence and ascertainment of the fact by the court, in order to sustain the validity of the order and of the election held pursuant thereto."

Under the above-cited authority, therefore (subsequently approved in WallHay-Wall Lbr. Co. v. Mathews, 211 Ala. 426, 100 So. 824), the proceedings, as thus far disclosed, were void. Recognizing this defect, counsel for respondent to the petition, requested a stay of the proceedings in this cause to the end that the records of the board of revenue might be amended nunc pro tunc to remedy the same (Com'rs Court v. Holland, 177 Ala. 60, 58 So. 270; Com'rs Court v. Hearne, 59 Ala. 373), which request was granted, and the record of the proceedings in the court of the board of revenue subsequently amended at the December term, 1925, of said court. The amended proceedings do not appear, however, to have been rested upon any record evidence whatever, but disclose that reference to the jurisdictional matter hereinabove noted was omitted from the record as a result of inadvertence or mistake on the part of the clerk of the court, who, in his affidavit filed in this cause, states likewise that these matters were "inadvertently left out of said minutes." Judgments can be amended nunc pro tunc only upon record evidence or evidence quasi of record, and the deficiency in a judgment or decree cannot be supplied by parol. 6 Mayf.Dig. 504; Briggs v. Tenn. C.I. & R. Co., 175 Ala. 130, 57 So. 882; Com'rs Court v. Holland, supra; Com'rs Court v. Hearne, supra.

In the Holland Case, supra, speaking to this question, the court said:

"In amending their judgments

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