Opinion of the Justices, 164

• Decision Date: 30 April 1959
• Docket Number: No. 164,164
• Citation: 111 So.2d 605,269 Ala. 127
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

Page 605

111 So.2d 605

269 Ala. 127

OPINION OF THE JUSTICES.

No. 164.

Supreme Court of Alabama.

April 30, 1959.

April 28, 1959

The Hon. Chief Justice and Associate Justices of the Supreme Court of Alabama Montgomery, Alabama

Gentlemen:

Important constitutional questions have arisen in connection with the interpretation of the constitutional amendment (herein called the 'Amendment') proposed by Act No. 519 of the 1957 Regular Session of the Legislature of Alabama, passed by the House of Representatives August 16, 1957, and by the Senate September 6, 1957 (Acts of Alabama, Regular Session, 1957, page 713), submitted to the qualified electors of the State at a special election held on December 17, 1957, and proclaimed ratified December 27, 1957 (Proclamation Record, Volume L, page 70). The Amendment authorizes special school district taxes in Cleburne County. For your advisory opinion to Hon. James E. Folsom, Governor, on a question relating to a substantially similarly worded constitutional amendment applicable to Etowah County, see In re Opinion of the Justices, 252 Ala. 199, 40 So. (2d) 330 (1949).

Following the proclamation of the ratification of the Amendment, special elections were held on July 8, 1958, in School Tax Districts Nos. 1 and 2 in Cleburne County at which elections a majority of the qualified electors voting in each district voted in favor of the levy in such district of the tax authorized by the Amendment each year beginning October 1, 1958, and ending with the levy for the tax year ending September 30, 1980. School Tax Districts Nos. 1 and 2 are already established in Cleburne County. School Tax Districts Nos. 1 and 2 together comprise all of Cleburne County. The elections were called to be held July 8, 1958, in School Tax Districts Nos. 1 and 2 by a single resolution of the Court of County Commissioners of Cleburne County, adopted May 12, 1958. The original minutes of the session of the Court of County Commissioners of May 12, 1958, failed to recite the presentation of a request by the County Board of Education for the call of such elections. However, such a request was in fact presented at the session of the Court of County Commissioners held May 12, 1958, and the minutes of the Court of County Commissioners have been amended and corrected since the date of the election to show the actual presentation of a request. In the original minutes of the May 12, 1958, session of the Court of County Commissioners, the resolution referred to is stated to be a resolution to call an election on 'a tax of 5 mill to be used for school purposes,' without reference to the fact that the tax was to be levied in two separate school districts. In fact, separate elections were called and held in School Districts Nos. 1 and 2. Since the date of the elections, the minutes of the Court of County Commissioners have been amended and corrected to show the adoption of a resolution calling special elections in School Tax District No. 1 and in School Tax District No. 2 for the purpose of submitting the question of whether or not each District should levy a special district tax, not exceeding 50 cents on each $100 of assessed valuation of taxable property in each school tax district, to be used solely for public school purposes within such district.

The three mill county-wide school tax has been voted for a continuous period ending September 30, 1980, but neither the proceedings nor the order of the Court of County Commissioners calling the election recite that such was the case.

Notice of such election was published three times in three separate weeks in 'The Cleburne News,' a newspaper of general circulation in the County and in each school tax district therein, the in the issues of June 5, 19 and 26, 1958, the first publication being more than 30 days before the date of the elections. Notices of the respective elections were posted at three public places in School Tax District No. 1, and at three public places in School Tax District No. 2 for thirty days prior to the elections. A copy of the notice so published and so posted is attached for the information of the Justices.

A true and correct copy of the original minutes of the proceedings of the Court of County Commissioners of May 12, 1958, and also of the amended or corrected minutes and each of the ballots used at the elections is also attached for the information of the Justices.

The Judge of Probate, the Sheriff and the Circuit Clerk, as a board of supervisors, canvassed the returns and declared the results of each of the elections and the Court of County Commissioners has also declared the results and levied and ordered collected the taxes so voted beginning with the levy for the tax year beginning October 1, 1958. The election resulted in 435 votes in favor of the tax to 104 votes against it in School Tax District No. 1, and 344 votes in favor of the tax to 55 votes against it in School Tax District No. 2.

The Legislature passed and on February 24, 1959, I approved Act No. 72, entitled, 'An Act to validate certain elections held since June 4, 1951, under Constitutional Amendment III or Constitutional Amendment CXXIII or the provisions of article six or seven of chapter ten, title fifty-two, Code of Alabama, 1940, or under any other law, for the purpose of authorizing a special tax for school purposes.'

Pursuant to the provisions of Title 13, Section 34, Alabama Code of 1940, I respectfully request your opinion on the following important constitutional questions:

1. Does the Amendment require the presentation of a formal written request for an election by the County Board of Education to the Court of County Commissioners as provided in Title 52, Sections 254 and 258, Alabama Code of 1940? If so, must the written request of the County Board of Education be made a part of the minutes or proceedings of the Court of County Commissioners, as a jurisdictional requirement for the calling of the election, before the election is held, or will it suffice that a request was in fact presented and that the minutes have been corrected, though after the election was held?

2. Under the Amendment, was a resolution of the Court of County Commissioners in general terms calling one County 5 mill school tax election sufficient to provide for the calling of two district school tax elections under the Amendment? If not, did the correction of the minutes to show the adoption of a resolution calling the two separate elections in each of the two school tax districts after the election was held suffice, the election having in fact been held as two separate district elections?

3. Does the Amendment, when considered with Title 52, Section 256, and Title 7, Section 716, Alabama Code of 1940, require that notice of an election be published for four consecutive weeks, the first publication being more than 30 days before the date of such election, or will it suffice that one publication was made more than 30 days before thd date of each such election or that notice was posted for 30 days prior to the elections?

4. Where the election is to be held in a school tax district already designated and established for purposes of levying and collecting taxes under Article XIX, Section 2 (Amendment 3) to the Constitution, does the Amendment require that the notice of election provided for in Title 52, Section 256, Alabama Code of 1940, contain a description of the boundaries of the school tax district?

5. Does the Amendment incorporate the provisions of Title 52, Section 255, Alabama Code of 1940, and Article XIX, Section 2, (Amendment 3) to the Constitution, which forbid the holding of a school tax district election unless the County in which such district is located shall be levying and collecting special county taxes for school purposes of not less than thirty cents on each one hundred dollars worth of taxable...