State ex rel. Tallapoosa County v. Butler

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: State ex rel. Tallapoosa County v. Butler, 227 Ala. 212, 149 So. 101 (Ala. 1933)
• Decision Date: 08 June 1933
• Docket Number: 3 Div. 55.
• Parties: STATE ex rel. TALLAPOOSA COUNTY v. BUTLER, State Tax Com'r.

149 So. 101

227 Ala. 212

STATE ex rel. TALLAPOOSA COUNTY v. BUTLER, State Tax Com'r.

3 Div. 55.

Supreme Court of Alabama

June 8, 1933

Rehearing Denied June 29, 1933.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Petition of the State, on the relation of Tallapoosa County, for mandamus to S. R. Butler, as State Tax Commissioner. From a judgment dismissing the petition, relator appeals.

Affirmed.

James W. Strother, of Dadeville, and Rushton, Crenshaw & Rushton of Montgomery, for appellant.

Thos E. Knight, Jr., Atty. Gen., and A. A. Evans, Asst. Atty. Gen., for appellee.

THOMAS Justice.

The motion of the state of Alabama to dismiss the "application for the writ of mandamus" was challenged by demurrer, which, on due consideration, was overruled, the motion of the state granted, and the application for writ of mandamus dismissed. From the action of the trial court in sustaining the state's motion, this appeal was taken.

The decisions in State ex rel. Chilton County v. Butler, State Tax Com'r, 225 Ala. 191, 142 So. 531, and State ex rel. Foshee v. Butler, State Tax Com'r, 225 Ala. 194, 142 So. 533, touch some phases of this case. In the Foshee Case, the holding was that generally the individual "cannot enforce right owing to the state"; that mandamus proceeding by the state on the relation of a taxpayer to compel the state tax commissioner to assess property of public utility was an "interest of state in sovereign capacity, requiring consent of Attorney General."

The Chilton County Case was more comprehensive; (1) that the state may, through its Attorney General, dismiss unauthorized proceedings to "enforce rights affecting state in sovereign capacity" (sections 854, 861, 872, Code 1923); (2) remedy by petition for mandamus to enforce private rights may be pursued without using the name of the state (section 8978, Code); (3) mandamus sought against a public officer to require the performance of "duty to the general public as distinguished from the state in its sovereign capacity," is properly brought in the name of the state "on relation of petitioner having the right" (section 8978, Code); (4) the state tax commissioner is a public officer of the state, and a county tax levy for "general purposes must be based upon assessment by state tax commissioner in so far as concerns public utility" (Gen. Acts 1919, p. 330, § 165; Gen. Acts 1923, p. 192, § 74; Const. 1901, § 215); (5) a "county" is merely a governmental agency possessing no power and subject to no duty not "originating from law creating it" or in "the statutes declaring the power and duty"; (6) the right of the county to levy tax is bounty conferred by the state; only such as the state may deem expedient-"not greater nor other than it possesses"; (7) that mandamus proceeding by the state on the relation of the county to compel the state tax commissioner to assess property of public utility affects the interest of the "state in sovereign capacity," and requires the consent of the Attorney General to "appeal from adverse judgment" (Code 1923, §§ 854, 861, 872; Gen. Acts 1919, p. 330, § 165; Gen. Acts 1923, p. 192, § 74; Gen. Acts 1931, p. 5).

Thus it is apparent that the court held in the Chilton County Case that a county had no right to interfere with the state tax commission in its assessment of property of the power company in that county. Appellant concedes the soundness of that decision, but insists that the allocation made by that commission does not fall within that class-as that of an assessment.

It is well to note that the same section of the statute that places the duty to "assess" upon the tax commission, likewise places upon it the duty to "allocate." For convenience of reference we supply italics and subdivide that section:

"(a) The State tax commission shall carefully examine and consider said statements and information, and shall hear evidence and secure further and additional information as far as may be in its power, whenever it may deem it necessary to do so, to show the true value of properties of such corporations, associations, companies, and individuals, and the true value of that portion thereof which is situated within this State and within the respective counties and cities and towns in this State; and each interested company, corporation, association or individual may appear before said commission and introduce material and relevant testimony before the same touching the true value of said property within this State and the apportionment thereof. (b) From these statements, evidence and information adduced before it, the State tax commission shall ascertain, fix and determine the true value of such property; and of the portion thereof which is situated within this State, and the respective value of the several portions within the different counties and cities, towns and school districts having a special assessment, in this State, in which such portions are taxable, (c) and for that purpose said commission may require and compel by subpoenas to be issued by it, any person or persons, or the officers and agents, or any of them, of any company, corporation, or association embraced by the provisions of this act, to appear before it with such books, papers, documents, and information as the commission may require, and to submit themselves to examination by said commission, and it shall have all the powers with respect thereto conferred upon it by this act." Section 113(89), Compilation of the Revenue Laws of 1929, Gen. Acts 1919, pages 282, 336. § 174.

From the foregoing statute it appears that the allocation is but the natural result and necessary act in and of the assessment by the state tax commission. In fact it inures in the assessment itself. The statute expressly places upon the tax commission the duty of " ascertaining, fixing and determining the true value" of the properties of the corporation that lie (1) "within the different counties and (2) cities, towns and (3) school districts having a special assessment, in this state in which such portions are taxable." (Italics and numbers supplied.) When the tax commission executes such power as the statute commands, the values so fixed by it are, by force thereof, allocated and apportioned to the respective counties, cities, and school districts, as the case may be. If the allocation or apportionment is to be changed or set aside, then the assessment, as required by the law to be made, must necessarily be changed. If the county, as declared in the Chilton County Case, supra, has no right to interfere directly with the tax commission in the assessment, then has it a right to do this indirectly by mandamus-by having the "allocation" or "apportionment" changed or set aside? This effort, if effective, would of necessity change the allocation made as required by law to be made, in that the statute directed the state tax commission to value the property of the Alabama Power Company that lies in Chilton, Elmore, and Tallapoosa counties; to report that valuation to the tax assessors of said counties, and then the respective counties will make their levies as the law directs.

The state's counsel illustrate the effect of several assessments as they are more or less dependent upon the other; for example, if the tax commission had found "the total value of the property of the Alabama Power Company" to be at a fixed amount; found that part of the property in East Tallassee was worth...