McCarthy v. Jones, Civ. A. No. 77-242-H.

• Decision Date: 21 April 1978
• Docket Number: Civ. A. No. 77-242-H.
• Citation: 449 F. Supp. 480
• Parties: Violet Mary McCARTHY, suing by and through her next friend Charles J. McCarthy, Jr., Harold D. Threadgill and Anthony Threadgill, suing by and through their next friend Thomas L. Threadgill, Renee McCaskill, suing by and through her next friend Chester McCaskill, Jesse Max Brooks, suing by and through his next friend J. N. Brooks, Sharon R. Montgomery, suing by and through her next friend Eloise T. Montgomery, Gary O'Neil Pettway, Henry Aaron Pettway, and Melvin Pettway, suing by and through their next friend Willie Quill Pettway, Ida Mae Johnson, suing by and through her next friend Dave Johnson, and Ethene Delores Johnson, suing by and through her next friend Jack Johnson, for themselves and all others similarly situated, Plaintiffs, v. Robert G. JONES, Individually, as Tax Assessor of Wilcox County, and on behalf of the class of tax assessors similarly situated, and L. Cecil Gaston, Individually, as Tax Collector of Wilcox County, and on behalf of the class of tax collectors similarly situated, (Additional defendants added as per attached Exhibit A) Defendants.
• Court: U.S. District Court — Southern District of Alabama

449 F. Supp. 480

Violet Mary McCARTHY, suing by and through her next friend Charles J. McCarthy, Jr., Harold D. Threadgill and Anthony Threadgill, suing by and through their next friend Thomas L. Threadgill, Renee McCaskill, suing by and through her next friend Chester McCaskill, Jesse Max Brooks, suing by and through his next friend J. N. Brooks, Sharon R. Montgomery, suing by and through her next friend Eloise T. Montgomery, Gary O'Neil Pettway, Henry Aaron Pettway, and Melvin Pettway, suing by and through their next friend Willie Quill Pettway, Ida Mae Johnson, suing by and through her next friend Dave Johnson, and Ethene Delores Johnson, suing by and through her next friend Jack Johnson, for themselves and all others similarly situated, Plaintiffs, v. Robert G. JONES, Individually, as Tax Assessor of Wilcox County, and on behalf of the class of tax assessors similarly situated, and L. Cecil Gaston, Individually, as Tax Collector of Wilcox County, and on behalf of the class of tax collectors similarly situated, (Additional defendants added as per attached Exhibit A) Defendants.

Civ. A. No. 77-242-H.

United States District Court, S. D. Alabama, N. D.

April 21, 1978.

Edward Still, Birmingham, Ala., for plaintiffs, Violet Mary McCarthy, et al.

Andrew M. Cromer, Jr., Camden, Ala., for Robert G. Jones, Tax Assessor of Wilcox County and for L. Cecil Gaston, Tax Collector of Wilcox County.

David U. Patton, Athens, Ala., for Edward Christopher and James Hargrove of Limestone County.

Kirtley W. Brown, Marion, Ala., for Wayne Perkins and Paul Stone of Perry County.

Michael E. Gurley, Centreville, Ala., for E. C. Downs of Bibb County.

Windwell C. Owens, Monroeville, Ala., for James L. Witherington of Monroe County.

Richard H. Ramsey, III, Dothan, Ala., for John L. Napier of Houston County.

David B. Carnes and Jack Floyd, Gadsden, Ala., for Jerry B. Jones and Opal N. Lee of Etowah County.

C. W. Rowe, Elba, Ala., for Maxwell A. Reeves and Fred L. Donaldson of Coffee County.

Julian Harris, Decatur, Ala., for Porter L. Hanes, Charles Howard and Cleon Yates of Morgan County.

Joseph W. Adams and Henry B. Steagall, III, Ozark, Ala., for W. J. Knight and James F. Watson of Dale County.

J. Gorman Houston, Jr., Eufaula, Ala., for Jena Shirley and Robert G. Methvin of Barbour County.

T. R. Ward, Abbeville, Ala., for Dan F. Capps and Madge Fleming of Henry County.

Lewis B. Hammer, Jr., Roanoke, Ala., for Bill Kirby and Herman Landers of Randolph County.

Lon Dick, pro se.

Earnest Allen Ingram, pro se.

G. Sage Lyons, Mobile, Ala., and Robert A. Huffaker, Montgomery, Ala., for amicus curiae, Ala. Farm Bureau Fed., Ala. Cattlemen's Assoc. and Ala. Assoc. of Realtors.

HAND, District Judge.

On February 17, 1978 the plaintiffs filed a motion for summary judgment averring that "there is no genuine issue as to any material fact and that the plaintiffs are entitled to a judgment as a matter of law." All defendants had previously been informed, by a notice dated February 10, 1978, that the Court would hold a hearing on this case on all pending matters on March 13, 1978. In response to this notice, counsel for the Bibb, Coffee, Dale and Hale County defendants appeared, and counsel for the Perry County defendants received an extension of time until March 24, 1978 to appear. Counsel for the Wilcox County defendants informed the Court that they did not wish to oppose the motion for summary judgment. None of the other defendants were represented at the hearing and none informed the Court as to their reasons for not being present. In spite of their absence, the Court finds that such defendants were afforded notice and an opportunity to be heard on the motion, and therefore will proceed to consider the issues without benefit of the arguments of such defendants. The Court has considered the record in this matter, the memoranda of law and oral arguments propounded by counsel for all parties, the brief of Amicus Curiae, together with the applicable law, and finds as follows:

FINDINGS OF FACT

1. The plaintiffs herein are a class composed of 77,000 school children residing

within the following counties in the State of Alabama: Barbour, Bibb, Bullock, Clay, Cleburne, Coffee, Dale, Etowah, Hale, Henry, Houston, Limestone, Monroe, Morgan, Perry, Randolph, and Wilcox. The named plaintiffs are seeking declaratory relief finding that Title 51, § 17 of the Alabama Code of 1940 (now section 40-8-1 of the Alabama Code of 1975) violates both the state and federal constitutions, and that Amendment 325(c) to the Alabama Constitution is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution. The plaintiffs further request that the defendants be enjoined from enforcing, either through collection or assessment, section 40-8-1 of the Alabama Code, and that the plaintiffs recover their costs of action and a reasonable attorney's fee. The defendants herein are the tax assessors and the tax collectors in the counties in which the plaintiff class members reside.

2. Section 40-8-1 of the Alabama Code of 1975 provides, in pertinent part, that:

(e) In the following designated counties taxable property shall be assessed at the ratio of assessed value to fair and reasonable market value for each class of property at the rate indicated:

                County       Class I      Class II      Class III
                Morgan        30%          20%            20%
                Limestone     30%          20%            15%
                Etowah        30%          20%            15%
                Clay          30%          20%            15%
                Cleburne      30%          20%            15%
                Barbour       30%          15%            15%
                Coffee        30%          15%            15%
                Bullock       30%          15%            15%
                Hale          30%          15%            15%
                Wilcox        30%          15%            15%
                Monroe        30%          15%            15%
                Randolph      30%          15%            15%
                Perry         30%          15%            15%
                Bibb          30%          15%            15%
                Houston       30%          15%            15%
                Dale          30%          15%            15%
                Henry         30%          15%            15%
                Jefferson     30%          25%            20%
                Calhoun       30%          25%            15%
                

The rates of assessment in Jefferson and Calhoun counties are not at issue in this litigation since the Jefferson rates exceed the statutory rates for other counties and the Calhoun rates are equal to such statutory rates. The Court finds that as a result of this statutory assessment scheme the seventeen counties involved in this litigation have a lower property value upon which tax rates may be applied than would be available if the counties employed the state wide assessment rates set out in section 40-8-1(a).¹

3. The plaintiffs also question the validity of Amendment 325(c) to the Alabama Constitution, contending that this legislative formulation is abhorrent to the equal protection clause of the Fourteenth Amendment to the United States Constitution. Amendment 325(c) provides, in pertinent part, that:

With respect ad valorem taxes levied by counties . . . all taxable property shall be forever taxed at the same rate, and such property shall be assessed for ad valorem purposes according to the classes of property defined in paragraph (a) herein and at the same ratios of assessed value to the fair and reasonable market value thereof as fixed in paragraph (b) herein, provided, however, that the legislature may vary the ratio of assessed value to the fair and reasonable market value as to any class of property defined in paragraph (b) herein, and provided, further, that the legislature may fix a uniform rate of assessment of all property within a county defined in paragraph (a) herein as Class II and III and may fix a different ratio of assessment for property defined in paragraph (a) as Class I. Such ratios as herein authorized may vary among counties so long as each such ratio is uniform within a county. . . .

The Court finds that the effect of Amendment 325(c) to the Alabama Constitution is to allow the state legislature to create distinctions in the rate of assessment of similar property in different counties, and that, in the instant case, such authorization has been employed to create such distinctions based on nothing other than geographical location.

CONCLUSIONS OF LAW

1. The Court has jurisdiction over the subject matter of this action and the parties hereto by virtue of Title 28, U.S.C.A., §§ 1331 and 1343, and Title 42, U.S.C.A., § 1983. The Court is of the opinion that the named plaintiffs are proper class representatives and that a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure is a proper vehicle for presentation of the plaintiffs' claims herein. However, the Court concludes that there is no need for class treatment of the defendants herein, since there is no evidence that such defendants are so numerous as to make joinder impractical, as required by Rule 23(a).

2. It should first be noted that the plaintiffs here do not contest the state's right to establish different classes of property for taxation and assessment purposes. As the Court in Weissinger v. Boswell, 330 F.Supp. 615, 620 (M.D.Ala.1971) (three judge panel) noted: "The sole question presented in this case . . . is whether a state has the right to assess property in the same class at different ratios." (emphasis in the original). While the precise issue before this Court is the validity of county assessments as opposed to the state assessments confronting the Weissinger court, this Court is convinced that the constitutional questions in each case are analogous and that Weissinger is dispositive of most issues raised herein.

3. Turning first to the contention that section 40-8-1 violated the equal protection clause of the Fourteenth Amendment, the Court finds that the Weissinger court's language is particularly appropriate:

It is well established that the

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