| Ala. | Nov 15, 1900
The 17th section of the act, “To bettor provide for the working of the public roads of St. Olair, Cherokee, Franklin and Shelby counties,” approved December 13th, 1898, (Acts, 1898-99, p. 189), provides “That the court of county commissioners of said counties, shall levy a special tax of not less than one-tenth nor more than one-fifth of one per centum on all taxable property of St. Clair, Cherokee, Franklin ■and Shelby counties, to be assessed and collected as other taxes, and when paid into the treasury, it shall be kept separate from other funds and used only for the
The coniplaint alleges that “said commissioners’ ■court, disregarding said provisions of said act, levied a regular county tax rate for county purposes, to the full limit of the constitution, for the year ,1899 to-wit, one-lialf of one per centum for said year 1899 on the value of the taxable property in said county, and in addition thereto, in the same year, levied a special tax of one-tenth of one per centum on the value of the taxable property in said county, claiming that said last named rate Avas authorized by said act.” It further alleges, that plaintiff paid the taxes due by it, of one-half of one per centum levied for county purposes and refused to pay said special tax of one-tenth of one per centum, on the ground that the assessment of the same was null and void, but paid it under protest and compulsion, and to avoid a sale of its property levied on.
Section 5 or Art. XI of the constitution limits the tax rate of the counties, providing, that “No county in this State shall be authorized to levy a larger rate of taxation, in any one year, on the value of the taxable property therein, than one-half of one per centum.” The section further provides, that to pay any debt hereafter created for- the erection of necessary public buildings or bridges, any county may levy and collect such special taxes -as may be authorized by law.
The language of said section, 17, is, that this “special tax shall be a part of that Avhich is authorized by the constitution for county purposes.” It is thus made to appear, that this special tax of one-tenth of one per centum, Avas in excess of the one-half of one per centum authorized bA the constitution to be levied for county purposes, and in addition thereto, said special tax of one-tenth of one per centum, avus levied and collected, making a sixty instead of fifty,per centum taxation on plaintiff’s property in the same year for county purposes, — opposed alike to the proAlsions of said section of the constitution and of said act of the legislature. When the commissioners levied a tax of one-half of
Under the averments of the complaint, the plaintiff had the right to sue for and collect from the defendant the amount of said special tax, paid by him under protest, and to protect his property from sale.
Affirmed.