Thorn v. Jefferson County

Decision Date07 September 1979
Citation375 So.2d 780
PartiesWayne THORN et al. v. JEFFERSON COUNTY et al. Charles CLARKSON, a general partner in Old Mountain Properties, a partnership, et al. v. JEFFERSON COUNTY et al. 78-286, 78-287.
CourtAlabama Supreme Court

John W. Haley, of Noojin, Haley & Ashford, Birmingham, for appellants.

Edwin A. Strickland, and John S. Foster, Birmingham, for appellee, Jefferson County.

Donald B. Sweeney, Jr., Birmingham, for appellee, Jefferson County Bd. of ed.

Hobart A. McWhorter, Jr., Birmingham, for appellee, City of Birmingham.

William G. Somerville, Jr., Birmingham, for appellees, City of Birmingham Bd. of Ed. and City of Mountain Brook Bd. of Ed.

J. M. Breckenridge, Birmingham, for appellee, City of Mountain Brook.

J. Howard McEniry, Jr., Bessemer, for appellees, the City of Bessemer, City of Hueytown and the Bessemer Bd. of Ed.

John W. Williams, Jr., Birmingham, for appellee, City of Homewood.

Jack H. Harrison, of Harrison, Jackson & Lee, Birmingham, for appellee, the City of Hoover.

Irvine C. Porter and James W. Porter, II, Birmingham, for appellees, City of Irondale and City of Homewood.

Patrick H. Boone, Birmingham, for appellees, City of Vestavia Hills and Bd. of Ed. of Vestavia Hills.

MADDOX, Justice.

Can the Legislature require citizens in Jefferson County to pay a higher rate of ad valorem tax on the same class of property than citizens in other counties of the state are required to pay? We hold that, based on the material before us, we cannot find, as a matter of law, that the classification made by the Legislature is rational. We reverse and remand.

Plaintiffs, as taxpayers, brought a class suit to recover what they claim were "excess taxes" paid to the Jefferson County Tax Collector based upon the assessment ratios provided for in Title 51, § 17, Code of Ala. 1940 (Recompiled 1958), now § 40-8-1, Code 1975. They claimed that the levy of taxes based upon § 40-8-1, Code 1975, is unconstitutional because it constitutes a denial of equal protection and violates the Fourteenth Amendment to the Constitution of the United States in that they were required to pay ad valorem taxes to the Jefferson County Tax Collector on Class III based upon an assessment rate of 20% Of the market value of the property while taxpayers in other counties were required to pay only at the rate of 15% Of the market value of the property. In a final order granting the defendants' motions to dismiss, denying the plaintiffs' motion for partial summary judgment, the trial court opined:

"Plaintiffs' motion for partial summary judgment seeks a declaration that Section 40-8-1(e), Code of Alabama 1975 (and its predecessor, Tit. 51, § 17(5), Ala.Code 1940, as amended), is unconstitutional on its face, there being no issue as to any material fact with respect to that claim, thus entitling plaintiffs to judgment as a matter of law. In raising the constitutionality Vel non of Section 40-8-1(e), plaintiffs submit no supporting affidavits or other evidence or testimony as provided by Rule 56, as plaintiffs contend that the question is solely a matter of law and should be considered as such. In the memorandum brief filed by plaintiffs they observe that Section 40-8-1(e) provides for an assessment for municipal and county tax purposes of fifteen percent (15%) of all Class III property in all counties except Jefferson and Morgan which provides for a twenty percent (20%) assessment, and claim that there is no rational basis for this distinction in assessment rates, and that the distinction 'demonstrates a patent denial of equal protection in that residents of Jefferson County . . . who own Class III property are not being treated equally with other Class III taxpayers'. Plaintiffs make the claim, unsupported by any facts or evidence, that this distinction constitutes a denial of equal protection and violation of the Fourteenth Amendment to the United States Constitution.

"The plaintiffs contend that Section 40-8-1(e), Code of Alabama 1975, and its predecessor Section 17(5), Title 51, Code of Alabama of 1940, as amended, violate the equal protection of the laws provision of the Federal Constitution. The plaintiffs thusly state the theory of such contention:

" 'The statutory scheme at issue permits and compels the assessment of property of the same class at different ratios in different counties.' (First sentence in last paragraph on page 3 of plaintiffs' brief).

"To sustain such theory the plaintiffs rely on Weissinger vs. Boswell, D.C., 330 F.Supp. 615, herein called 'Weissinger'.

"The Court agrees with the defendants that Weissinger does not hold that the equal protection of the laws clause of the Federal Constitution prohibits the assessment for municipal and county taxation of property of the same class at different ratios in different counties. Footnote 1 to the opinion in McCarthy v. Jones, (D.C.) 449 F.Supp. 480, decided subsequent to Weissinger and after the adoption of Amendment 325 to the Alabama Constitution says this:

" 'Clearly there is No constitutional proscription against the adoption of different rates of taxation by the various local governmental units.' (emphasis added)

"By the sentence next quoted above, the Court in McCarthy repudiated the principle for which the plaintiffs cite Weissinger. Court decisions, legal encyclopedias and preeminent text writers sustain such repudiation.

" 'On the other hand, taxes in different taxing districts in the state need not be uniform, where they are equal and uniform throughout the district for which the tax is levied. For instance, a county tax in one county may be based on a higher valuation or a higher rate than in another county.' (underscoring supplied) 1 Cooley's Law of Taxation (4th Ed.), pp. 649 and 650.

" 'It does not mean, however, that the taxes levied by or with respect to the various political subdivisions or taxing districts of the state must be at the same rate.' " (Underscoring supplied) 71 Am.Jur.2d 472, § 152 of State and Local Taxes.

" 'Hence, there may be different rates of local taxation in such different subdivisions, provided there is uniformity within each particular county, municipality, or taxing district, and provided the purpose to be accomplished by the tax pertains to the district taxed, as discussed infra subdivision b of this section.' (Underscoring supplied) 84 C.J.S. 128, et seq., Section 38 of Taxation.

"Plaintiffs rely principally on the decision of the United States District Court for the Southern District of Alabama in McCarthy v. Jones, 449 F.Supp. 480 (1978). In McCarthy the District Court held that the application of Section 40-8-1(e) to seventeen counties involved in the case with respect to the assessment of Class II property at different rates so as to reduce assessment ratios as therein provided violated the equal protection clause of the Fourteenth Amendment to the United States Constitution as to the school of children who were plaintiffs in that case. The Court expressly held that the rates of assessment for county and municipal taxation in Jefferson County (were) not an issue in the litigation since the Jefferson County rates (as to Class III property) exceed the statutory rates for other counties. In McCarthy, the Court did hold that Amendment 325 to the Alabama Constitution was valid and that an assessment ratio in a county different from the assessment ratio in other counties could in a proper case be established by the Legislature.

"Section 1-1-16, Code of Alabama 1975, and Section 2 of Act No. 1216 of the 1973 Regular Session of the Legislature (Acts 1973, p. 2062), which act amended Title 51, Section 17(5), Code of Alabama 1940, each provide a severability clause which authorizes the Court to consider Section 40-8-1(e) (and its predecessor, Tit. 51, § 17(5), Ala.Code 1940, as amended) as they apply to Jefferson County alone, unaffected by provisions applicable to other counties. The United States Supreme Court has held that the equal protection clause of the United States Constitution relates to equality between persons rather than between areas. Salsburg v. State of Maryland, 346 U.S. 545, (74 S.Ct. 280, 98 L.Ed. 281) (1954); McGowan v. State of Maryland, 366 U.S. 420, (81 S.Ct. 1101, 6 L.Ed.2d 393) (1961); Toyota v. Hawaii, 226 U.S. 184, (33 S.Ct. 47, 57 L.Ed 180) (1912). The Supreme Court of the United States has held that State legislatures are presumed to have acted within their constitutional power despite the fact that in practice, their laws result in some inequality and that a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, supra; Allied Stores of Ohio v. Bowers, 358 U.S. 522, (79 S.Ct. 437, 3 L.Ed.2d 480) (1959).

"The Alabama Supreme Court and the Court of Civil Appeals have held as valid laws relating to assessment of property in Jefferson County different from similar laws relating to most other counties in the State. Phillips v. Hinkle, 262 Ala. 330, 78 So.2d 800 (1955); Smith v. Pullman, Inc., 280 Ala. 295, 193 So.2d 516 (1966); State v. Kennedy, 52 Ala.App. 470, 294 So.2d 439 (1974).

"After consideration of the pleadings, arguments of counsel, and the authorities submitted by counsel, the Court is of the opinion and finds that the provisions of Section 40-8-1(e), Code of Alabama 1975, and of Tit. 51, § 17(5), Ala.Code 1940, as amended, separately and severally, providing that in Jefferson County taxable property shall be assessed for municipal and county taxation at the ratio of assessed value to fair and reasonable market value as to Class III property at twenty percent (20%), does not violate the equal protection clause of the Fourteenth Amendment to the United States Constitution, nor is invalid as being repugnant to the provisions of the Constitution of Alabama, or for any other reason alleged in the complaint as last amended. The Court accordingly further...

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