Shanks v. Winkler
| Decision Date | 28 June 1923 |
| Docket Number | 3 Div. 620. |
| Citation | 210 Ala. 101,97 So. 142 |
| Parties | SHANKS ET AL. v. WINKLER ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Butler County; Arthur E. Gamble, Judge.
Bill by W. H. Shanks, Jr., and others against C. F. Winkler and others, as members of the Court of County Commissioners of Butler County, etc., to vacate and annul an order of said Commissioners' Court levying a special tax, and to enjoin the assessment and collection of such tax. From a decree sustaining demurrer to the bill, complainants appeal. Reversed and remanded.
Powell & Hamilton, of Greenville, for appellants.
Lane & Lane, of Greenville, for appellees.
In May 1922, the Butler county board of education proceeding under authority of the act approved September 26, 1919 (Acts, pp 567-678), entitled, "An act to provide a complete educational system for the state of Alabama," etc filed their petition and procured the holding of an election on the question whether a special 3-mill tax for public school purposes should be levied in the territory denominated as school tax district No. 3, the limits of which are described in an exhibit to the original bill in this cause. The proposed tax was defeated at the polls by a vote of 45 to 60. Afterwards, on July 12, 1922, the board filed another petition for an election to be held in school tax district No. 3 on August 18, 1922, the territorial content of which is described as in the petition for the first election, save that eight sections which had been included in the first, and in which 26 qualified electors resided, were now omitted. The commissioners' court granted the petition, and ordered the election to be held August 18, 1922, when the proposed tax was approved by a popular vote of 49 to 32; but the electors residing in the omitted territory were not allowed to vote, and the averment is that, if they had been allowed to vote, the result would have been different. The taxing authorities of the county were proceeding to assess and collect the tax, when, on the facts already stated, and others to be noted in their appropriate connections, appellants, taxpayers and landowners in the district affected by the tax, filed this their bill to vacate and annul the order levying the special tax as constituting a cloud upon the titles to their lands, and to enjoin the levy, assessment, and collection of the same. No temporary injunction is prayed, nor does the bill evidence any purpose to interfere with any other taxes to be levied, assessed, and collected for the state or county, nor does it appear that such will be the result of the relief sought.
There is no denial of the general rule that, unless some recognized ground of equitable interference is shown, other than mere illegality, hardship, or irregularity in respect of the levy or assessment of the tax, a bill to enjoin its collection will not be entertained. Adams v. Southern Railway, 176 Ala. 323, 58 So. 397, and cases there cited. The equity of the bill is placed upon two grounds: (1) That the record of the commissioners' court is regular in itself, disclosing no flaw in the proceedings for the authorization and collection of the tax in question, so that resort to evidence dehors the record is necessary to establish its invalidity, and hence that the record and the lien of the tax levied in pursuance thereof constitute a cloud upon the titles to all the lands in the school tax district; and (2) the tax has been levied for a period of 6 years, and will be collected annually, so that a multiplicity of actions at law will be necessary for its recovery from year to year in the absence of the equitable relief sought by the bill. The case averred involves no necessity for an apportionment of taxes, no occasion for a new assessment, no interference with the regular revenue of the state or county, and, in our judgment, the considerations stated above suffice to sustain the equity of the bill as against the contention that complainants should pay the tax and seek to recover it by actions at law. 1 High on Injunctions (4th Ed.) §§ 524, 525; Alabama Gold Life Ins. Co. v. Lott, 54 Ala. 499; Tallassee Mfg. Co. v. Spigener, 49 Ala. 264; Mayor, etc., v. Baldwin, 57 Ala. 71, 29 Am. Rep. 712. Appellees refer to section 2345 of the Code of 1907 as affording complainants, appellants, adequate relief at law; but our opinion is that this section does not reach to cases in which grounds of relief peculiar to equity are asserted.
The bill is properly exhibited by complainants on behalf of themselves and other property owners similarly interested.
"And it may be asserted as a general rule governing the joinder of parties complainant in this class of actions, that different property owners and taxpayers, having separate and distinct interests as regards the ownership of property subjected to the burden of a common tax, but suing for themselves and all others similarly interested, may unite to obtain relief by injunction against the collection of such tax; since, although their titles are several and distinct, they nevertheless have such a common interest in the subject-matter of the litigation as to render them proper co-plaintiffs in a proceeding to obtain relief from the burden common to them all." 1 High, § 574.
Complainants' bill was filed on the theory, for one thing, that the proceeding had in May, 1922, fixed the boundaries of school tax district No. 3; that such boundaries remain intact, and hence that the order for an election made in the succeeding July was without authority of law, for the reason that it omitted eight sections of the territory described in the first order, and thereby operated to prevent an expression of choice on the part of 26 electors who, it is averred, would have voted against the tax. Section 4 of article 12 of the act of September 26, 1919, provides that "the county board of education of its own initiative shall fix the boundaries of any school district within its jurisdiction in which it is proposed to levy a local school tax," that a correct description of such boundaries must appear on the minutes of the board of education, and "that the levy of the district school tax shall operate to fix the boundaries of such district for the time of such special levy, except as hereinafter provided;" the exception (section 5) relating to the enlargement or consolidation of districts previously fixed. The import of these provisions of the statute is plain enough. The proceeding of the board of education in May must have been based upon an order fixing the boundaries of school tax district No. 3; but when the...
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