Commissioners Court of Calhoun Co. v. City of Anniston

DOWDELL, C. J. This appeal is taken from the judgment of the city court of Anniston on the petition of appellee, awarding a peremptory writ of mandamus to issue requiring the commissioners’ court of Calhoun county to pay over to the city of Anniston a pro rata of the road tax levied and collected by the commissioners’ court for certain years mentioned in the petition. Motion was made to strike the petition, and de [607] murrer interposed, Avhich motion and demurrer Avere overruled by the court; and the cause Avas then heard on the facts and a judgment rendered in faAror of the petitioner. There are three assignments of error, but, as counsel for appellant say in brief, they raise one and the same question, and are argued together; and Ave Avill here so .treat the case. There is no distinction in principle on the facts between this case and the case of the Board of Revenue v. Birmingham, decided at the last term of this court, and to be found reported in 172 Ala. 138, 54 South. 757. It appears from the record in the present case that in the years 1907, 1908, 1909, and 1910, under the proAdsions of an act of February 28, 1889, and an amendatory act thereof, approved February 11, 1891, to authorize the commisisoners’ court of Calhoun county to levy taxes for Avorking the public roads of said county, a special tax of 3/20 of 1 per cent, on the taxable property of the county Avas levied for the purpose of repairing and building public roads in the county, and that this tax Avas a part of the /ó of 1 per cent, authorized by section 215 of the Constitution of 1901 for general purposes. The act of February 28, 1889 (Acts 1888-89, p. 866, § 2), authorized the levy of a special tax of 1/10 of 1 per cent, for road purposes, and expressly provided, ‘“which shall be a part of the one-half one per cent. noAV authorized by the Constitution for county purposes.” And the amendatory act of February 11, 1891 (Acts 1890-91, p. 561), AAdiich authorized the levy of 3/20 of 1 per cent., provided as folloAvs: “That the said commissioners’ court shall levy a special tax not to exceed tliree-tAventieths of one per cent, on the taxable property of the county, AA’hich shall be a part of the one-half one per cent, uoav authorized, to be assessed and collected as other taxes, and when paid into the treas [608] ury it shall he kept separate from, other taxes and used only for the purposes indicated in this act.” The purposes indicated in the act were the working of the public roads of Calhoun county. It was evidently the intention and purpose of the Legislature in the enactment of this law not to exceed, but to keep within, the constitutional limit of y2 of 1 per cent, authorized to be levied by the county for general purposes, and the effect was to appropriate so much of the tax levied and collected within the constitutional limit for the purposes mentioned in the act, and which it was within the power of the Legislature to do. Section 2 of an act approved August 26, 1909 (Acts Sp-. Sess. 1909, p. 304), provides as follows: “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.” So it would seem to be of no consequence and make no difference whether the levy for roads in Calhoun county be considered as made under the special acts of 1889 and 1891, or under the general act of September 30, 1903 (Code, vol. 1, § 134), as in either ‘case the apportion act of 1909, above mentioned, applies so long as the levy of the commissioners’ court does not exceed the constitutional limit of % of 1 per cent, which was true of the levy in the case before us. The evidence in the case sufficiently justified the court below in finding that the tax levied had been collected, and that there was still on hand and unappropriated, and under the control of the commissioners’ court, and [609] subject to the claim of the city of Anniston, the amounts specified in the judgment of the court in awarding the peremptory writ. We are of the opinion that on the undisputed evidence this case clearly falls within the influence of the case of Board of Revenue v. Birmingham, supra. There is nothing offensive to the Constitution in the act authorizing the levy of the tax, since the same is within the constitutional limit of y.± °f 1 per cent, authorized to the county. We find no error in the judgment of the trial court, and the same is affirmed. Affirmed. Simpson, Anderson, Sayre, and Somerville, JJ., concur. McClellan and Mayfield, JJ., not sitting.