67 So. 311 | Ala. | 1914
Lead Opinion
This is an action at law by the city of Montgomery against the county of Montgomery. Its purpose and object is to recover of the county of Montgomery $30,000 as the city’ of Montgomery’s as
“And plaintiff avers that one-half of the said proportion of said sum so transferred to the road and bridge fund, which was collected on the property located in the corporate limits of the plaintiff, amounted to the sum of thirty thousand ($30,000) dollars, ’ or other large sum; that the said defendant failed and refused to pay the said money, or any part thereof, to the plaintiff, and still refuses to pay the same, and used the same for other purposes; and plaintiff claims the said sum as now due to it, with interest thereon from, to wit, the first day of March, 1912.”
The agreed statement of facts is as follows: “It is agreed by and between the attorneys of record in this cause that the board of revenue of Montgomery county
“It is further agreed that under the general levy of one-half of 1 per cent, made in June, 1911, by the board of revenue, there was collected between October 1, 1911, and September 30, 1912, the sum of $155,553.39, and that during this period there was collected from sources other than the one-half of 1 per cent, levy approximately $80,000; the total receipts derived from one-half of 1 per cent, and other sources approximated $235,555.39, of which sum $102,211.19 was expended for county purposes other than road purposes, leaving a balance of $133,311.20, out of which the $85,000 was transferred to the road and bridge fund, which was expended by the county before this suit was commenced; that the books of the county do not show the assessed values of city property separately from the assessed values of the property outside of the city; that this however, is shown by the books kept by the city, in which all assessed values of property within the city were taken from the county books of assessment.
“That for the year 1911 the total assessed tax value for the.county was $31,861,679, as shown by the books
The city’s claim is- based upon sections 1 and 2 of the act approved August 26, 1909. — Acts Sp. Sess. 1909, pp. 303, 304. Those sections read: “Section 1. That the maintenance of streets of municipalities in the state of Alabama is hereby, for the purposes of this act, declared to be a county matter.
“Sec. 2. That courts of county commissioners and boards of revenue, where there is levied a road tax, general or special, or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing, repairing or maintaining roads or highways of any description in the county, shall pay over each year to each municipality therein one-half of the money collected on such road tax on the property located in such municipality.”
Pretermitting the consideration of all other questions that might be proposed on the record for review, a controlling meritorious issue of law presented is whether the sum claimed is a fund to which the city has a legal right.
We come, then, to this'unclouded inquiry: Did the act of 1909 (quoted ante) effect to invest the city of
It is apparent that the first phrase, viz., “where there is levied a road tax, general or special,” had and has reference to a specific levy of a tax for the construction, repair and maintenance of public county roads. And it is equally obvious that the fund here sued for is not of the character of fund defined in the first phrase of section 2, just quoted. While this is manifestly true, the mentioned phrase is of consequence and importance in the ascertainment of the legislative intent sought to be expressed in the next succeeding phrase of section 2 of the act, viz.: “Or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing, repairing or maintaining roads or highways of any description, in the county.”
It is upon the interpretation of the last-quoted language of section 2, read in connection with the other' provisions of the act, that the decision here 3nust turn.
It is entirely clear that the lawmakers purposed to require the payment over to municipalities of a proportion of certain funds that had come into the control of the county authorities! What fund — what description or character of funds — was required to be so paid over? In defining or describing ,tbe funds to be so paid over the statute writers employed both general
These general, descriptive terms plainly show that in the legislative mind a particular character of tax, or a tax the product of which was to' have application to a particular government purpose, viz., public roads or “highways,” was the basis of the dominant idea. It is not possible to read the act and entertain any other •conclusion with respect to the intent of the lawmakers.
When the particular terms employed in this act by the lawmakers, viz., “or where by the tax levy a portion of the tax is levied for or devoted to the purpose” •described, are read and considered in connection with the general terms before quoted in this opinion, it is clear, beyond any doubt, that the Legislature was seeking, in the use of particular terms in perfect accord with the general terms indicated, to define or describe the product of a tax that in some law-fixed manner was Impressed, when exacted of the taxpayer by the taxing authority of the "county, with the governmentally or-
In the first place, the very plain letter of the act (section 2) defines the fund to be affected as the product of a tax levy, for it says: “Where by the tax levy a portion of the tax is levied for or devoted to” road or highway purposes. Taxes are annually levied, as section 2 contemplated, by courts of county commissioners and boards of revenue, at a definite time. — Code, § 2155. “The levy of taxes is a legislative function, and declares the subjects and'rate of taxation.” — Perry County v. Railroad Co., 58 Ala. 559. The authority to levy county taxes is conferred, as stated, on the county government. — Perry County v. Railroad Co., supra. The levy of taxes is the act of establishing a “rule of action,” and assessment is the administration of the rule. — -Perry County v. Railroad Co., supra. When authority to do so is conferred on the county government, the levy is the first step in the gathering of'taxes. In the act, if we do not unnecessarily repeat, it was plainly provided, by the terms last quoted, that the condition to the right of the municipality to the therein stipulated portion of the fund was a tax levy in or by which provision was made for the application' — devotion — of a portion of the money (tax) to road or highway purposes. Unless such provision was thus inceptively made, viz., when the tax levy was' made, it could not, under this 'act, be thereafter introduced into the levy by a mere order of the county body. So, when it
It is insisted that a proper consideration and interpretation of the word ’‘devoted,” in section 2 as several times before quoted, should and would lead to the conclusion that the city’s right to the fund claimed would be entirely vindicated, for that the act ■ wotild then have and should have application to funds not impressed by the tax levy with the promised purpose to apply a portion of the product of the tax to road or highway objects, but application to money devoted by order of the county body to the construction, etc., of roads or highways.
This insistence is refuted by the plain words and clear grammatical relation associated with and component, of the expression in which the word “devoted” occurs. If we omit the words “levied for or” (preceding the word “devoted”) the sentence reads: “Or where by the tax levy a portion of the tax is * * * devoted to the purpose,” etc. The subject of the sentence is “tax.” The verb is “devoted.” The phrase, “where by the tax levy a portion of the,” is related to and descriptive of the subject, “tax.” The tax devoted is the tax .answering to the related descriptive phrase just mentioned. There is no other way to read the sentence. There- is no other possible subject of the verb “devoted.” It is lthe"word “tax.” Without obvious violence
Now it is also suggested that to interpret the act as we have done effects to read the “where by the tax levy” sentence to the same legislative result as the antecedent thereto provisions of section 2 plainly contemplates. Not so. The provisions of section 2, preceding the sentence employing the word “devoted” has reference to a road tax, apart from the taxes laid for general county purposes, in which a part of the money derived for general county purposes was designated by law for use in constructing, repairing, or maintaining county roads, etc.
Some collateral legislative circumstances may be here noted, for they are of service in this.«matter:
By virtue of an act, applicable to Tuscaloosa county, approved September 29, 1903 (Local Acts 1903, p. 433), the order of the commissioner’s court, considered in the last-cited decision, was made. See 180 Ala. 484, 61 South. 431. That local act was amended, as appears in Local Acts 1907, p. 227. The local act of 1903, in an effort to promote road improvement, provided that at the first regular meeting of the commissioners’ court after December 1, 1903, and in each year thereafter, “said court shall appropriate and set apart out of the taxes levied for general purposes in said county such sum as the condition of the county treasury shall warrant, but in no case less than one-sixth of 1 per cent, of the total assessed valuation of property in said county, which sum shall be a part of the one-half of 1 per cent authorized by law for general county purposes.” Provision was then made with respect to the special road tax levied under section 215 of the Constitution, which this court considered when the decision reported in 173 Ala. 724, 54 South. 763, was delivered. It will-be seen that a minimum proportion of the product of one-sixth of 1 per cent, on the total assessed value of all property tax laid and collected in Tuscaloosa county for general county-purposes was fixed by the local act, thereby directly impressing that part of the tax levied for general county purposes with the law’s imperative order devoting the sum so produced to the purpose
In Tuscaloosa County v. City of Tuscaloosa, 180 Ala. 479, 61 South. 431, no account appears to have been taken or consideration invited by the litigants looking to the separation from the one-sixth of 1 per cent, minimum — prescribed by the local act and designated to the local act as a marked part of the product of the levy for general county purposes — of the sum in excess thereof that the county body transferred to the road and bridge fund in the exercise of the discretion reposed in them by the local act. Hence that decision had ro invitation to separate from a larger mass that to ivhich, under the act of 1909, the city of Tuscaloosa was entitled, viz., one-half of one-sixth of 1 per cent, of taxes paid on property in the city of Tuscaloosa. So the. decision reported in 180 Ala. 479, 61 South. 431, is. Avithout bearing on- this appeal.
The first count of the complaint was subject to the demurrer. On the agreed statement of facts the city of. Montgomery-was without rights to - recover the sum
Under and by authority of the foregoing opinion, like judgments will be entered in causes numbered 86 to 91, inclusive.
Reversed and rendered.
Dissenting Opinion
(Dissenting.) — -I cannot concur in the opinion or decision in this case, for the reason that, to my mind, the certainly, if not clearly, expressed will of the Legislature is thereby defeated. It is in effect held that the statute construed applies only to cases in which the counties have levied a special road tax, and not to cases like this, where a part of the general levy is thereafter applied or devoted to road purposes. Such is not, in my humble judgment, a proper construction of the statute in question. If the construction stated is the proper one, then the statute was and is wholly useless, for the reason that there is no field of operation for it.
Section 1335 of the Code provides for exactly what the court now holds is the only effect to be- given to the later act of August 27, 1909 (Acts 1909, pp. 303,-304). I am of the opinion that the later act was passed to provide for cases like the one in question, where there was no levy of a special road or bridge tax, but where the funds or .proceeds- of a tax?!evy< were devoted
If I correctly understand the majority opinion, it holds that, in order for the city to be entitled to any part of the county taxes under this statute, the fund or tax must be “devoted to the purposes” mentioned in the statute, by the tax levy; that is, if the levy by which the tax is raised does not so provide, then, no' part of the county’s taxes is available to the city, no matter if it is subsequently used or devoted by the county authorities to the purposes mentioned in the statute. I may be in error in construing the opinion, but this is what the opinion seems to hold. If the fund is to be “devoted to the purposes mentioned in the statute, by a tax levy” — that is, if the levy is the sole authority or agency for appropriating or devoting the fund — then I cannot conceive how it is possible to so “devote” it. It may be that a “tax levy” can “devote” the proceeds of the levy; but I think it safe to say that such a thing has never been attempted. The levy can, of course, be made for a general or special purpose, and such is usually done; but I never before heard of a levy “devoting” the taxes or proceeds. The levy might provide that when the taxes were collected they should be.devoted to the purposes for which the levy was made; but I cannot understand how the levy can actually devote the proceeds, which are not then ascertainable, much less available for the purposes of the levy. A county tax levy is only the fixing of the tax
Surely there is more difference between the levy and the devotion of the taxes than there is between the levy and the assessment. I concede that the statute is not as clear in its meaning as it could be made; but I do think the meaning and intention is made certain, when it is construed in connection with other statutes on similar subjects especially section 1335 of the Code. It is true that section 1335 was held invalid (see the case of Anniston v. Calhoun County, 158 Ala. 68, 48 South605) ; but that defect was cured by a readoption of the Code on the very day the subsequent statute here construed was approved. It has also been held that neither of the statutes could be applied to special levies made under subdivision “a” of section 215 of the Constitution, but that they were applicable to tax levies, general or special, where the levy Avas not in excess of fifty cents on the $100 worth of taxable property. See case of Tuscaloosa County v. Tuscaloosa City, 180 Ala. 479, 61 South. 431, Avhich reviews and cites the authorities.
I cannot concur in that part of the majority opinion which attempts to distinguish this case from that of Tuscaloosa County v. Tuscaloosa City, supra. The fund there subjected to the city was not a general or special levy for road purposes; but it was a part of the fund levied and collected for general county pur
The local act of 1903 (page 433), above referred to, had nothing to do with special or general levies for road purposes, but related to the authority for setting apart portions of the general fund, and general levies, as distinguished from special levies, to the road and bridge fund, just as was done in this case, under a general statute. That local act, in part, provided as follows : “At the first regular meeting of the court of county commissioners of Tuscaloosa county, Alabama, to be held after the first day of December, 1903, and at the first regular meeting of said court in each year thereafter said court shall appropriate and s'et apart out of the taxes levied for general purposes in said connty such sum as the condition of the county treasury shall warrant, but in no case less than one sixth of one per centum of the total assessed valuation of property in said county, which sum shall be a part of the one-half of one per centum authorized by law for general county purposes.”
The only special road tax for Tuscaloosa county was the one-fourth of 1 per centum levied under subdivision “a” of section 215 of the Constitution, which this court had, in a previous case, decided could not be subjected by the city; so the only fund which could have been subjected in Tuscaloosa county was a part of the general fund for general county purposes, which was set-aside to road purposes. The only difference between the Tuscaloosa County Case and the case in hand is' that the same fund, in the one case, was set aside under
To show that the construction placed upon the statute by the majority opinion cannot be the correct one, and cannot be applied, is well illustrated by the Tuscaloosa Cases. In that county, the court of county commissioners, who levy the general and special taxes, and set apart the funds for the roads and bridges, have nothing whatever to do with the “devotion” or expenditure of the funds. This is done exclusively by another and a different board, viz., the board of public works; that is, the power that levies and sets apart can have nothing whatever to do with the expending or devotion of the funds. They have nothing to do with the repairing or maintenance of the public roads so far as these funds are concerned; but it is done by a board which has no power to levy any tax.
To sustain the construction placed on the statute by the majority, the courts take judicial knowledge of the facts that a member from Jefferson county introduced the bill, and that Jefferson county has local laws for levying road taxes, which other counties have not, thereby intending to meet the needs of Jefferson county. If the court can take judicial knowledge of these facts, •can and should it not take notice of the fact that the Jefferson County Case, so far as its special levy for road purposes is concerned, is covered as by a blanket by section 1335 of the Code, and that the whole statute would be useless so far as the special road levy was ■concerned?
It seems to me that the last statute was enacted to reach funds which were taken from the general fund
I cannot agree to the grammatical analysis and parsing of the statute, as contained in the majority opinion, by means of which the subject of the important and controlling passive verb “is devoted” is said to be the noun “tax.” That part of the opinion to which I cannot agree reads as follows: “If.we omit the words ‘levied for or’ (preceding the word ‘devoted’), the sentence reads: ‘Or where by the tax levy a portion of the tax is * * '* devoted to the purpose,’ etc. The subject of the sentence is ‘tax.’ The verb is ‘devoted.’ The phrase ‘where by the tax levy a portion of the’ is related to and descriptive of the subject, ‘tax.’ The tax devoted is the tax answering to the related descriptive phrase just metioned. There is no other way to read the sentence. There is no other possible subject of the verb ‘devoted.’ It is the word ‘tax.’ ”
The word “tax” occurs twice in the sentence which is analyzed and parsed; but in neither case, in my judgment, is it the subject, of the passive verb “is devoted.” Where the word “tax” first occurs it is not even a noun, but is an adjective, describing the nofin “levy,” which noun is in the objective case, governed by the preposition “by.” Where it occurs the second time it is' a noun, but not in the nominative case, or the subject of the passive, verb “is devoted,” but is in the possessive case,
The very object of the alternative sentence is to reach cases like this, in which there is.no road tax levy; but a portion of the proceeds of some other tax levy is devoted to road purposes. In such a case, the portion so devoted must then be prorated as the statute directs. If the tax is the unit which must by the levy be devoted to the purposes mentioned, the word “portion,” the real subject of the verb, is wholly useless.