Jolly v. City of Birmingham
Decision Date | 27 August 1975 |
Citation | 55 Ala.App. 603,318 So.2d 300 |
Parties | Donald G. JOLLY v. CITY OF BIRMINGHAM, a Municipal Corporation. Civ. 493. |
Court | Alabama Court of Civil Appeals |
Charles H. Wyatt, Jr., Birmingham, for appellee.
This appeal questions the validity of a municipal ordinance of the City of Birmingham imposing an occupational license tax.
The trial court found the ordinance constitutional, granted the city's motion for a directed verdict, and allowed the jury to determine the amount due.
Appellant argues that the ordinance is invalid in that its enactment violated Act No. 452 of the Legislature of Alabama, Regular Session 1955; he further argues that the ordinance is, in fact, a proscribed tax on income in violation of § 89 of the Constitution of Alabama; he also urges error in that the ordinance violates the 5th and 14th amendments to the Constitution of the United States by its exemption of persons earning $3,000 or less from its application and operation; he additionally urges that he has been deprived of the equal protection of the laws in that he has been 'singled out' for enforcement of the ordinance; and it is finally contended that due process and equal protection of the laws have been denied appellant in that discriminatory and burdensome record keeping is imposed upon him by the ordinance, and that the ordinance unjustifiably discriminates between classes of taxpayers.
The pertinent parts of Act No. 452, as codified in article 46, subdivision 3, § 1617, Appendix of the Alabama Code, Vol. 14A, provide procedures for the preparation and adoption of the budgets of cities having the mayor-council form of government. The pertinent parts of § 1617 at pages 973 and 974 require that:
The ordinance in question, imposing a tax upon occupations practiced within the City of Birmingham, was originally recommended to the council in order to balance the proposed budget; at this time its rate was three-fourths of one percent. After the public hearing was held, the rate was increased to a full one percent, which appellant contends was violative of that provision of subparagraph 9, as quoted above, forbidding alteration of receipts. The ordinance in this form, and the budget, were then adopted. As such, appellant urges the invalidity of the ordinance.
However, even conceding for the purpose of this opinion the correctness of appellant's contention as to the violation of subparagraph 9 as it relates to the budget, the ordinance in question, to wit, the occupational license tax, must not necessarily fall due to the infirmity in the budget. The procedures of § 1617 apply only to adoption of a budget, and to this court have no application to ordinances duly enacted in connection therewith. While a budget may be invalidated by failure to comply with § 1617, the validity of such an ordinance duly adopted in concert with such budget is completely without that section's scope of application. No inference can be drawn from § 1617 which would warrant invalidating a tax law not passed in conformity with its procedures. While this court has found no Alabama cases directly in point and none are cited in brief, the Texas Court of Civil Appeals had occasion to consider a similar situation in Rachford v. City of Port Neches, 96 S.W.2d 167, wherein a tax levy was attacked in that the requirements of the state budget law were not complied with. In upholding the validity of the levy, the court said:
We would further point out that the budget in question is the 1970--71 budget and the suit upon which this appeal is based was filed in 1974.
Appellant's contention that the ordinance is a prohibited tax...
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