Jefferson County v. City of Birmingham

• Decision Date: 26 November 1948
• Docket Number: 6 Div. 776.
• Citation: 38 So.2d 844,251 Ala. 634
• Parties: JEFFERSON COUNTY et al. v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

38 So.2d 844

251 Ala. 634

JEFFERSON COUNTY et al. v. CITY OF BIRMINGHAM.

6 Div. 776.

Supreme Court of Alabama

November 26, 1948

Rehearing Denied Feb. 17, 1949.

Chas W. Greer, Frank Bainbridge, Maurice Bishop, and John Foster all of Birmingham, for appellants.

Jas. H. Willis and Amzi G. Barber, both of Birmingham, for appellee.

Irvine C Porter, City Atty. for City of Homewood, Bryant A. Whitmire, City Atty. for City of Leeds, and Edw. L. Ball, City Atty. for City of Bessemer, amici curiae.

FOSTER Justice.

This case is here on second appeal. The first appeal was from a decree overruling demurrer to the bill. 248 Ala. 319, 27 So.2d 584. After we affirmed the decree, respondents, who are the county of Jefferson and certain county officers on behalf of the county, filed answer and special pleas setting up two contentions, not determined on former appeal, namely (1) that the local act of 1885 (herein more particularly referred to) was repealed by the adoption of the Constitution of 1901; and (2) that to allow the claim the city would in substance and effect collect a rate of taxation greater than one-half of one percentum on property situated therein, since the city had for the years in controversy, 1944, 1945, 1946 and 1947, levied and collected the rate of one-half of one percentum on such property.

The contention that the local act was repealed by the adoption of the Constitution of 1901 is controlled by statutes and constitutional provisions copied in the opinion on former appeal. We will refer to those statutes and provisions without here copying their pertinent parts, since they were set out in that opinion.

(1) The Local Act of February 17, 1885, Acts of Alabama 1884-5, page 709.

(2) The opportionment statute as set out in section 130, Title 12, Code of 1940. See Act of August 26, 1909, General and Local Acts, Special Session 1909, pages 303 and 304.

(3) Section 5, Article XI, Constitution 1875.

(4) Section 215 of the Constitution of 1901.

On this appeal, appellants' counsel disclaim an intention of seeking to change any ruling on former appeal, but contend that they are no advancing theories not heretofore acted on or suggested in this controversy.

Their first contention is that the Act of 1885, supra, was repealed by the adoption of the Constitution of 1901, in that in doing so the second proviso of section 5, Article XI of the Constitution of 1875 was so amended by its counterpart in the Constitution of 1901, section 215, as that in addition to the limit of one-half of one percentum provided in the first part thereof, there was also a limit placed on the special tax referred to in the proviso, as set out in the Constitution of 1875, and it was also broadened by section 215, supra, so as to include as a beneficiary of such special taxes levied over and above the one-half of one percentum roads, as well as public buildings and bridges, to which such special tax applied in the Constitution of 1875.

On former appeal, we discussed the contention that the proviso of section 1 of the Act of 1885 was repealed by the second proviso of section 215, supra, and denied the contention. But that is not what appellant is now insisting on. But it is that by making the amendment to the second proviso, so as to include roads as beneficiaries of the special tax and putting a limitation on the amount of it, the Constitution intended to confine the entire right of a county to levy special road taxes to the terms of that proviso, and thereby set at naught a right held to exist under the Constitution of 1875 in favor of a county acting by authority of law to levy a special road tax within the limits of one-half of one percentum as set out in the first part of section 5, Article XI, and section 215, supra.

Under the Constitution of 1875, a county could not levy a special road tax in excess of the one-half of one percentum limit for general purposes. See, Montgomery County v. City of Montgomery, 190 Ala. 366, 67 So. 311; Board of Revenue of Jefferson County v. City of Birmingham, 172 Ala. 138, 54 So. 757.

Such was the constitutional status when the Act of 1885, supra, was enacted. It could only have validity as a part of the general limit of one-half of one percentum. And as pointed out in our former cases, it created a mandatory duty on the county to make the levy within such general limitation. So considered, the Act was not violative of the Constitution of 1875. Board of Revenue of Jefferson County v. City of Birmingham, 205 Ala. 338, 88 So. 16; Board of Revenue of Jefferson County v. City of Birmingham, 205 Ala. 320, 88 So. 18.

Under the Constitution of 1875, the right of the county to levy a special tax for roads was restricted within narrower limits than was a special tax for public buildings and bridges. There are a number of our cases cited and relied on by appellant, which hold that by the amendment of the second proviso of section 5, Article XI, Constitution 1875, to include roads, counties may, outside of the general limit of one-half of one percentum, by special levy raise funds for roads; and counsel for appellant argue that having such right to share in the broadened limits, counties are restricted to the special tax mentioned in the proviso and cannot also have a special tax as theretofore within the limits of the one-half of one percentum tax, although so provided by law. This is important because a special tax within the limit of one-half of one percentum may by law be shared with a city for street purposes, but funds derived from a special levy made under the second proviso must go to debts for roads (or public buildings or bridges), not including city streets. City of Montgomery v. Montgomery County, 185 Ala. 281, 64 So. 588; Commissioners Court of Tuscaloosa v. City of Tuscaloosa, 180 Ala. 479, 61 So. 431; Board of Revenue of Jefferson County v. City of Birmingham, 172 Ala. 138, 54 So. 757; Commissioners Court of Pike County v. City of Troy, 173 Ala. 442, 56 So. 131, 274, Ann.Cas.1914A, 771.

But there is nothing in any of our cases which refers to a constitutional policy to confine a special road tax by a county to the second proviso (section 215, supra), and therefore to prohibit authority to levy such a tax under the general limit of one-half of one percentum. And we see no sound argument for making such an interpretation of the second proviso of section 215, supra. It opened the door to roads to enter into a status theretofore applicable only to public buildings and bridges. It has never been held that the power to levy a special tax for public buildings and bridges was confined by the proviso to its provisions.

We do not so interpret the cases of State v. Street, 117 Ala. 203, 23 So. 807; Southern Rwy. Co., v. Cherokee County, 144 Ala. 579, 42 So. 66; Adams, Tax Collector v. Southern Rwy. Co., 167 Ala. 383, 52 So. 439.

The special tax under the proviso must be used to pay past debts or those thereafter created for such construction, not to raise money to be used in construction without creating a debt. Southern Rwy. Co., v. Cherokee County, supra. But a special tax levied under the general limit has no such restriction, nor any other restriction. It is not indicated in our cases that the court thought that the amendment intended to cut off a power which theretofore existed, but rather to broaden the limits of another power to include roads. Our cases recognize the validity of a road fund created by law since the Constitution of 1901, made out of the tax levied within the limitation of one-half of one percentum. State ex rel. City of Mobile v. Board of Revenue of Mobile County, 180 Ala. 489(8), 61 So. 368; Town of Eutaw v. Coleman, 189 Ala. 164, 66 So. 646; Commissioners Court of Tuscaloosa County v. City of Tuscaloosa, 180 Ala. 479, 61 So. 431; Phillips v. Atkins, 229 Ala. 15, 155 So. 537.

Since the proviso only applies to debts, it does not embrace the power to create funds for road purposes when a county is in no position to make a debt, or unless a debt has already been created. Gunter v. Hackworth, 182 Ala. 205, 62 So. 101; Littlejohn v. Littlejohn, 195 Ala. 614, 71 So. 448. The amendment to the proviso in section 5, Article XI (section 215, supra) should not be construed to prevent a county, which cannot make a debt, from raising funds by a special tax for road construction when such special tax is within the narrow limitation of one-half of one percentum. State v. Street, supra.

We cannot therefore agree with appellants' first contention.

The next insistence is that the opportionment act serves to violate section 216 of the Constitution of 1901, in respect to the years in question, 1944, 1945, 1946 and 1947, because for those years the city of Birmingham had levied and collected a tax in the amount of the maximum rate there authorized of one-half of one percentum of the value of the property situated therein as assessed for State taxation during the preceding year.

The contention is soundly stated that a tax cannot be levied by the county for a city, and collected by the city in any amount when the city has levied the full maximum rate of one-half of one percentum on the value of the property situated in the city, since section 216 prohibits the collection of a tax beyond the maximum as well as the levy of such a tax. Section 216 of the Constitution of 1901 is as follows:

'No city, town, village, or other municipal corporation, other than as provided in this article, shall levy or collect a higher rate of taxation in any one year on the property situated therein than one-half of one per centum of the value of such property as assessed for state taxation during the preceding year.' (Italics ours.)

Reliance is had on the case of State v. Southern Rwy. Co., 115 Ala. 250,...