Weissinger v. Boswell

• Citation: 330 F. Supp. 615
• Parties: Susan Lee, Alan B., Lois and Andy WEISSINGER, minors, suing by and through their parent and next friend, A. B. Weissinger, et al., Plaintiffs, v. Charles A. BOSWELL, Commissioner of Revenue for the State of Alabama, and his successors in office, Defendant. (Formerly Hornbeak et al. v. Rabren).
• Decision Date: 29 June 1971
• Court: U.S. District Court — Middle District of Alabama

330 F. Supp. 615

Susan Lee, Alan B., Lois and Andy WEISSINGER, minors, suing by and through their parent and next friend, A. B. Weissinger, et al., Plaintiffs, v. Charles A. BOSWELL, Commissioner of Revenue for the State of Alabama, and his successors in office, Defendant (Formerly Hornbeak et al. v. Rabren).

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

June 29, 1971.

COPYRIGHT MATERIAL OMITTED

Barry Hess, Matranga, Hess & Sullivan, Mobile, Ala., and Cooper, Mitch & Crawford, Birmingham, Ala., for plaintiffs.

William J. Baxley, Atty. Gen., and Willard W. Livingston, Asst. Atty. Gen., State of Ala., for defendant.

Before GODBOLD, Circuit Judge, and GROOMS and JOHNSON, District Judges.

PER CURIAM:

This is a class action challenging the federal constitutional validity of Alabama's present ad valorem tax program. The crucial question presented in the case is whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment require the State of Alabama to assess all property within the state at a uniform ratio for ad valorem tax purposes.

Plaintiffs, all of whom are citizens of the United States and the State of Alabama, generally comprise two separate groups. Group I is comprised of corporate taxpayers owning taxable real property in Jefferson County, Alabama; these corporate taxpayers allege that their property is assessed for ad valorem tax purposes at 30 percent of its fair and reasonable market value. Group II consists of minors, suing by and through their parents or next friends, who attend public schools in the State of Alabama. A third group of plaintiffs consisted of adult taxpayers who own taxable property in various counties throughout the state; these adult taxpayers claimed that ad valorem assessments on real property in the counties wherein this property is situated range from 15 percent to 30 percent of the property's fair and reasonable market value.

On June 5, 1969, the then Commissioner of Revenue, Harvey L. Rabren, filed a motion to dismiss, the main thrust of which was to challenge the Court's jurisdiction over the subject matter. This Court, consisting of three judges as required by 28 U.S.C.A. § 2284, in an order issued on October 29, 1969, ruled that the due process claim made by the adult and corporate plaintiffs was not within the purview of 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343, since it involved only a "property" right capable of pecuniary valuation.¹ Since none of the adult taxpayers was able to allege a pecuniary interest sufficient to satisfy the jurisdictional amount under 28 U.S.C.A. § 1331 and since their individual claims could not be aggregated,² this Court granted defendant's motion against all the group of adult plaintiffs. Defendant's motion was denied, however, as to the two corporate defendants, each alleging an amount in controversy in excess of $10,000.

This Court further ruled in its order of October 29, 1969, that the plaintiff-schoolchildren's due process and equal protection claim stated a cause of action under 42 U.S.C.A. § 1983 and its jurisdictional counterpart, 28 U.S.C.A. § 1343, for the reason that plaintiffs' right to use and enjoy the public schools, free from arbitrary and unreasonable conduct (or lack of conduct) on the part of the Government, is clearly a "civil" right within the meaning of Section 1343.³ Defendant's motion to dismiss was therefore denied as to the Group II plaintiffs.⁴

All plaintiffs sue on their own behalf and on behalf of all others similarly situated. Defendant Boswell is the State Commissioner of Revenue for the State of Alabama.

In their complaint filed with this Court on May 22, 1969, plaintiffs allege that the taxable values of and the assessment rates on real property in the State of Alabama have varied, and continue to vary, significantly from county to county contrary to and in violation of Section 211 of the Alabama Constitution, which requires that the assessments of property in the state be made in exact proportion to the fair and reasonable market value thereof. Plaintiffs further allege that this lack of uniformity in assessments has resulted from the failure of defendant and his predecessors in office to comply with and to discharge their statutory duties imposed by Title 51, Sections 131⁵ and 133⁶ of the Code of Alabama.

The corporate (Group I) taxpayers contend that defendant's failure to perform his duties in accordance with state law, and the resultant disparity and inequality in the assessment and taxation of real property in the state, has deprived and continues to deprive them of property, in the form of ad valorem taxes, without due process of law, in violation of the Fourteenth Amendment to the United States Constitution. The plaintiff-schoolchildren (Group II) contend that since a fixed percentage of the state's ad valorem tax revenue is distributed each year to the various public school districts in the state,⁷ defendant's systematic refusal to equalize assessments has deprived these school districts of monies to which they would otherwise be entitled for the education of plaintiffs and all others similarly situated,⁸ thus denying plaintiffs due process and equal protection of the law under the Fourteenth Amendment.

Plaintiffs also challenge the constitutionality of Title 51, Section 17(1),⁹ of the Code of Alabama. Plaintiffs contend that Section 17(1), in granting state and local tax officials wide discretion in the setting of ad valorem assessment rates, is so vague and indefinite as to violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The constitutionality of Section 17(1) is further attacked by plaintiffs on the ground that Act No. 502, the revenue bill from which Section 17(1) is derived, originated in the Alabama Senate, contrary to the express mandate of Article IV, Section 70, of the Alabama Constitution, which requires that all bills for the raising of revenue originate in the House of Representatives.

Plaintiffs seek a permanent injunction, restraining defendant from complying with or enforcing Section 17(1) and ordering him to take whatever affirmative steps are necessary to equalize the assessment of all like taxable property in the state as required by Title 51, Sections 131 and 133.

Preliminarily, it should be noted that this case does not question the right of a state to establish different classes of property. Nor does it question the right of a state to subject one class of property to one rate of assessment and another class of property to a different rate.¹⁰ The sole question presented in this case, as will be seen, is whether a state has the right to assess property in the same class at different ratios.¹¹

Section 211 of the Alabama Constitution provides in pertinent part that:

All taxes levied on property in this state shall be assessed in exact proportion to the value of such property. * * *

Section 217 of the Alabama Constitution provides as follows:

The property of private corporations, associations, and individuals of this state shall forever be taxed at the same rate; provided, this section shall not apply to institutions devoted exclusively to religious, educational, or charitable purposes.

These constitutional provisions have been consistently interpreted by the Supreme Court of Alabama as requiring "uniformity and equality among all taxpayers, `private corporations, associations and individuals alike', both as to ratio and percentage of taxation and also as to rate of taxation."¹² In other words under Sections 211 and 217, all taxable property, by whomsoever owned, in the State of Alabama must be assessed and taxed at uniform ratios for ad valorem purposes. Thus, rather than establishing various classes of taxable property, the State of Alabama has chosen to place all taxable property within the state in a single class for ad valorem tax purposes.

The initial responsibility for assessing the taxable property, other than railroad and utility property,¹³ within the state rests with the various county tax assessors. After the county assessor has finished assessing the property and compiling the assessment lists for his particular county, the lists are presented to the county board of equalization, whose duty it is to equalize the assessment of all property within the county.¹⁴

The State Department of Revenue is charged with the responsibility of equalizing the various county equalization board assessments and its own assessments on railroad and utility property, so that all taxable property in the state will be assessed in accordance with Sections 211 and 217. Sections 131 and 133 of Title 51¹⁵ of the Code of Alabama authorize the Department of Revenue to exercise general and complete supervision over and control of valuation, equalization, and assessment of property "to the end that all taxable property in the state shall be assessed and taxes shall be imposed and collected thereon in compliance with the law, and that all assessments on property * * * shall be made in exact proportion to the fair and reasonable market value thereof."

The defendant, as the chief executive officer of the Department of Revenue,¹⁶ thus has the responsibility for seeing that all taxable property in the state is assessed at uniform assessment ratios for ad valorem tax purposes. The evidence reflects, however, that nonuniformity, rather than uniformity, in ad valorem assessment ratios predominates in the State of Alabama.

In 1969 the State Department of Revenue commenced an assessment-sales ratio study to determine the ad valorem tax assessment ratio of fair and reasonable market value of real property in each county in the state and to determine the statewide median ratio.¹⁷ The results of this study, the reliability¹⁸ of which is not in issue, reveal that the median ratios for the individual counties in the State of Alabama range from lows of 6.7 and 7 percent of fair market value in rural Hale and Washington Counties to...