W. S. Brewbaker, Inc. v. City of Montgomery

PER CURIAM. Petitioner filed suit against the City of Montgomery to recover taxes paid on October 16, 1951, allegedly under mistake of fact or law. Demurrers to the six counts of the complaint, as amended, were sustained and petitioner took a nonsuit with leave to appeal. The Court of Appeals affirmed the judgment of the Circuit Court. Count 4 of the complaint was a common count in code form. The Court of Appeals held that the demurref 'to that count was correctly sustained because of a misjoinder of the Tax Assessor with the City. This point was raised by ground 15 of the demurrer, which reads: “There is a misjoinder of parties defendant.” This ground is too general and the court erred in sustaining the demurrer on this ground. Findlay v. Hardwick, 230 Ala. 197, 160 So. 336; Inland Waterways Corporation v. Sloss Sheffield Steel & Iron Co., 223 Ala. 397, 136 So. 849; Bright v. Wynn, 210 Ala. 194, 97 So. 689. Moreover, the demurrer was joint and the count being good as to the City, the demurrer should have been overruled even though the Tax Assessor was improperly joined, where the Tax Assessor did not demur separately. Louisville & Nashville Railroad Co. v. Lynne, 199 Ala. 631, 75 So. 14; 41 Am.Jur., Pleading, § 230, p. 454; 71 C.J.S. Pleading § 260, p. 509; Jones Alabama Practice & Forms, Vol. 3, §§ 9780, 9785. The demurrer to Count 4 should have been overruled. Counts 1 and 2 allege that there was no tax levy made by the City for the tax year 1950-51, nor any levy for the preceding year. It is elementary that there can be no tax due until there is a levy. State v. Board of Revenue & Road Commissioners of Mobile County, 73 Ala. 65; 51 Am.Jur., Taxation, § 647. The demurrer to each of these counts should have been overruled. Counts 3, 5 and 6 show on their face that they are based on the case of City of Montgomery v. Graham, 255 Ala. 685, 53 So.2d 363, which case is referred to in each of the counts. Inasmuch as we feel that the holding in that case must be modified to the extent that it would not support Counts 3, 5 and 6, we hold that the demurrer to each of those counts was properly sustained. The first clause of Sec. 216 of the Constitution of Alabama of 1901 reads: “No city, town, village, or other municipal corporation, other than as pro [464] vided in this article, shall levy or collect a higher rate of taxation in any one year on the property situated therein than one-half of one per centum of the value of such property as assessed for state taxation during the preceding year; * * This clause is followed by several provisos; the pertinent part of the one relating to Montgomery reading “ * * * and, provided further, that this section shall not apply to the city of Montgomery, which city shall have the right to levy and collect a tax of not exceeding one-half of one per centum per annum upon the value of the taxable property therein, as fixed for state taxation, for general purposes, * * *.” A comparison of the two provisions reveals that cities under the first clause must base their levies upon the value “as assessed for state taxation during the preceding year,” while the proviso relating to Montgomery is silent as to what year, requiring only that the tax be on the value “as fixed for state taxation.” This means that the City of Montgomery had a latitude for selecting the basis of taxation not enjoyed by the municipalities operating under the first clause of Sec. 216. This first clause has the same meaning as the first clause of its predecessor, Article XI, Sec. 7, Constitution of Alabama of 1875. It was construed to be a limitation upon the exercise of the inherent power of the Legislature to tax, rather than a grant of the power to tax in Hare v. Kennerly, 83 Ala. 608, 3 So. 683, 685, where the court said: “ * * * We repeat, that these several clauses are not grants of the power to levy taxes, but limitations upon that taxing power which has always been inherent in the state, and vested in the legislative branch of the State government, which is the depositary of all authority on the subject. * * *” Later, the Legislature provided for an “Optional Method Of Collecting Municipal Taxes,” now codified in Tit. 37 as Article 2, §§ 698-732. It permits “any municipality” to use the state and county tax machinery for the collection of municipal taxes, provides for compensation of the tax assessor and collector, and provides a public service to the taxpayers of municipalities by permitting them to pay their full state, county and municipal property tax at one place at one time. Tit. 37, § 700, provides for the levying of taxes for municipalities adopting this optional method and also provides that the levy shall be continued for any year in which the city governing body shall fail to make a levy. It directs the municipality, during May of each year, to levy the tax for the next succeeding year on the value of the property as assessed for state taxation for the tax year ending September 30th, next succeeding the levy. We can find no conflict in this provision in § 700 with the constitutional provision in Sec. 216 relating to Montgomery. It, therefore, follows that there is no constitutional prohibition in Sec. 216 to keep Montgomery from adopting the optional method of collecting municipal taxes (Tit. 37, §§ 698-732) anything in City of Montgomery v. Graham, 255 Ala. 685, 53 So.2d 363, to the contrary notwithstanding. The statements in that case that the City of Montgomery cannot levy its taxes pursuant to § 700, Tit. 37, Code 1940, and cannot levy taxes for the next succeeding year upon the state valuation for the then current year, are not to be followed since they were not necessary to a decision in that case. It is argued that the proviso in Sec. 216 of the Constitution relating to Montgomery is mandatory and that Montgomery must levy city taxes based on a valuation for the current year and cannot levy taxes on a valuation for the preceding year. The Graham case does so indicate, but as already noted, these statements are not to be followed. We have previously shown that the provision in Sec. 216 does not prohibit Montgomery from using the valuation for the preceding year as a basis for the levy, but allows Montgomery a latitude in the choice of years of a basis for taxation. [465] We cannot agree that Sec. 216 was intended to prohibit Montgomery from using any certain basis when it is entirely silent on the subject of what basis is to be used; and we do not think the Legislature intended to bar or prohibit Montgomery or any municipality so situated from using the optional method of collecting municipal taxes, Tit. 37, §§ 698-732. Such a holding would be chaotic to a settled, practically uniform and accepted plan for the assessment, collection and handling of municipal ad valorem taxation in Alabama. The proceedings of the Constitutional Convention of 1901 show that of the seven members of the Convention from Montgomery County, only Mr. Sanford was in favor of the Amendments referred to in the minority opinion, and the Convention voted to table each of the Amendments offered by Mr. Sanford, thereby presumably rejecting his arguments and interpretations, Vol. 4, Official Proceedings, Constitutional Convention of 1901, pp. 4816, 4821, 4824, 4828, 4830. The judgment of the Court of Appeals is affirmed in part, reversed in part and remanded. LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur. LIVINGSTON, C. J., and COLEMAN, J., dissent in part.