Jefferson County v. City of Birmingham

• Decision Date: 17 January 1946
• Docket Number: 6 Div. 402.
• Citation: 27 So.2d 584,248 Ala. 319
• Parties: JEFFERSON COUNTY et al. v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

27 So.2d 584

248 Ala. 319

JEFFERSON COUNTY et al. v. CITY OF BIRMINGHAM.

6 Div. 402.

Supreme Court of Alabama

January 17, 1946

Rehearing Granted June 27, 1946.

Further Rehearing Denied Oct. 24, 1946.

Harvey Deramus, of Birmingham, for appellants.

Jas. H. Willis, of Birmingham, for appellee.

On Rehearing.

LAWSON Justice.

Appellee, the City of Birmingham (hereinafter referred to as the complainant), filed a bill in equity in the Circuit Court of Jefferson County, sitting in equity, against appellants, the County of Jefferson, the members of its County Commission, and the County Treasurer (hereinafter referred to as the respondents). To the bill as amended the respondents separately and severally demurred. From a decree overruling the demurrer the respondents have appealed to this court.

The main purpose and object of the complainant's bill is to recover of Jefferson County the sum of $95,898.07, which complainant asserts is its portion of tax funds garnered by the county authorities. The two legislative enactments upon which the complainant primarily bases its right to recover have been the cause of previous litigation between these parties. At least four cases have been heretofore before this court wherein these legislative enactments have precipitated litigation between the City of Birmingham and Jefferson County. Board of Revenue of Jefferson County v. State ex rel. City of Birmingham, 172 Ala. 138, 54 So. 757; Board of Revenue of Jefferson County v. City of Birmingham, 205 Ala. 320, 88 So. 18; Board of Revenue of Jefferson County v. City of Birmingham, 205 Ala. 338, 88 So. 16; Jefferson County v. City of Birmingham, 221 Ala. 476, 129 So. 48.

We deem it advisable to set out here the pertinent provisions of such enactments. Act No. 395, H. 806, approved February 17, 1885, Acts of Alabama, 1884-85, p. 709, which will be hereinafter referred to as the 1885 local act, provides in § 1 thereof as follows: 'That the Court of County Commissioners of Jefferson County shall levy a special tax of one-tenth of one per cent. on the value of all taxable property in said county as assessed for revenue for the State, to be applied to the working of public roads in said county, as hereinafter provided; Provided, that no levy shall be made by said court, in any one year, exceeding one-half of one per cent. for the ordinary county purposes, not including necessary public buildings or bridges.' (Emphasis supplied.) Section 2 relates to the making of contracts for the construction and working of the roads of the county. Section 3 provides for the hiring of convicts to contractors. Section 4 requires contractors to give bond with sufficient sureties for the performance of the contract. Section 5 provides that the work shall be done under the supervision and direction of a civil engineer or engineers. Section 6 provides for the payment of expenses and liabilities required or incurred under the act out of moneys collected thereunder. Section 7 relates to road duty by persons liable therefor.

The other provision upon which complainant bases its right to recover is § 130, Title 12, Code of 1940. It will be hereinafter referred to as the apportionment statute. It is as follows: 'The courts of county commissioners and boards of revenue, where there is levied a road tax, general or special, or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing, repairing or maintaining roads and highways of any description in the county except the special tax authorized by subdivision (a) of section 215 of the constitution, shall pay over each year to each municipality therein one-half of the money collected on such road tax on the property located in such municipality.' (Emphasis supplied.) The above-quoted section of the Code is in all respects here material identical with § 2 of Act No. 183, H. 210, approved August 26, 1909, General and Local Acts, Special Session 1909, pp. 303, 304, except the italicized portion, which first appeared in § 6774, Code of 1923, and no doubt was incorporated therein as a result of several decisions of this court. Commissioners' Court of Pike County v. City of Troy, 173 Ala. 442, 56 So. 131, 274, Ann.Cas.1914A, 771; Court of County Revenue of Franklin County v. Town of Russellville, 176 Ala. 609, 58 So. 253; Commissioners' Court of Tuscaloosa County v. State ex rel. City of Tuscaloosa, 180 Ala. 479, 61 So. 431; State ex rel. City of Tuskegee v. Macon County, 190 Ala. 631, 67 So. 394; State ex rel. Town of Marion v. Commissioners' Court of Perry County, 187 Ala. 643, 65 So. 998; City of Demopolis v. Marengo County, 195 Ala. 214, 70 So. 275.

At the time the 1885 local act was enacted, the constitutional provision relating to the levying of property taxes by counties was § 5 of Article 11 of the Constitution of 1875, which is as follows: 'No county in this state shall be authorized to levy a larger rate of taxation, in any one year, on the value of the taxable property therein, than one-half of one per centum [hereafter referred to as the first clause of § 5 of Article 11 of the Constitution of 1875]; provided, that to pay debts existing at the ratification of this constitution, an additional rate of one-fourth of one per centum may be levied and collected which shall be exclusively appropriated to the payment of such debts or the interest thereon [hereafter referred to as the first proviso of § 5 of Article 11 of the Constitution of 1875]; provided, further, that to pay any debt or liability now existing against any county, incurred for the erection of the necessary public buildings or other ordinary county purposes, or that may hereafter be created for the erection of necessary public buildings or bridges, any county may levy and collect such special taxes as may have been or may hereafter be authorized by law, which taxes so levied and collected shall be applied exclusively to the purposes for which the same were so levied and collected [hereafter referred to as the second proviso of § 5 of Article 11 of the Constitution of 1875].'

Section 215 of the Constitution of 1901 is the present constitutional provision relating to the levying of property taxes by counties. It is as follows: 'No county in this state shall be authorized to levy a greater rate of taxation in any one year on the value of the taxable property therein than one-half of one per centum [hereafter referred to as the first clause of § 215 of the Constitution of 1901]; provided, that to pay debts existing on the sixth day of December, eighteen hundred and seventy-five, an additional rate of one-fourth of one per centum may be levied and collected which shall be appropriated exclusively to the payment of such debts and the interest thereon [hereafter referred to as the first proviso of § 215 of the Constitution of 1901]; provided, further, that to pay any debt or liability now existing against any county, incurred for the erection, construction, or maintenance of the necessary public buildings or bridges, or that may hereafter be created for the erection of necessary public buildings, bridges, or roads, (a) any county may levy and collect such special taxes, not to exceed one-fourth of one per centum, as may have been or may hereafter be authorized by law, which taxes so levied and collected shall be applied exclusively to the purposes for which the same were so levied and collected [hereafter referred to as the second proviso of § 215 of the Constitution of 1901].'

In the original opinion in this case, written for the court by Mr. Justice Brown and concurred in by all the Justices, we held that the lower court erred in overruling the demurrers of respondents on the ground that the bill was without equity in that the 1885 local act, supra, which was necessary to complainant's right to relief, was unconstitutional.

We came to the conclusion in the original opinion that the Legislature in the enactment of the 1885 local act, supra, rested said act on the second proviso of § 5 of Article 11 of the Constitution of 1875 and in view of that conclusion held that the said local act was unconstitutional and void in that the Legislature was without power to authorize the levy of a special tax for road purposes under the said second proviso of § 5 of Article 11 of the Constitution of 1875. County of Montgomery v. City of Montgomery, 190 Ala. 366, 67 So. 311.

Upon further consideration we are of the opinion that the tax which the Legislature in § 1 of the 1885 local act, supra, required the governing body of Jefferson County to levy, was intended to be levied as a part of the one-half of one per centum levy which the Legislature may authorize counties to make under the first clause of § 5, Article 11, Constitution of 1875. We think the proviso of § 1 of the 1885 local act, supra, clearly shows that such was the intention of the Legislature. True, the tax was designated as a 'special' tax, but that fact alone does not indicate that the Legislature intended for the levy to be in addition to the one-half of one per cent. levy in view of the proviso above referred to. The construction here placed upon the act is in accord with the previous decisions of this court. In the case of Keene v. Jefferson County et al., 135 Ala. 465, 33 So. 435, 437, this court had under consideration a local act affecting Jefferson County, see Acts of 1900-1901, p. 1722, which provided for the levy of a 'special' tax of one-twentieth of one per cent. for the use of the sanitary fund of the county. Section 11 of that act was in most material respects similar to § 1 of the 1885 local act, supra. Said § 11 of the 1901 act, supra, contained the following provision: 'Provided, however, that no levy shall be made by said board of revenue in any...