Opinion
No. 1010273.
Decided November 22, 2002.
Appeal from Chambers Circuit Court (CV-01-202).
Claude E. (Skip) McCoy, Jr., amd Curt M. Johnson of Johnson, Caldwell McCoy, Lanett, for appellants.
W. Gregory Ward, Lanett, for the Chambers County Board of Education and the City of Lanett Board of Education, appellees.
Alan K. Ziegler of Bradley Arant Rose White, L.L.P., Birmingham, for the Chambers County Board of Education, appellees.
Mary E. Pons, Montgomery, for amicus curiae Association of County Commissions of Alabama, in support of the appellants.
David R. Boyd and Dorman Walker of Balch Bingham, L.L.P., Montgomery, for amicus curiae Alabama Association of School Boards in support of the appellees.
On Application for Rehearing
This Court's opinion of August 2, 2002, is withdrawn, and the following is substituted therefor.
The Chambers County Commission and the individual members of that Commission (hereinafter collectively referred to as "the Commission") appeal from an order of the Chambers Circuit Court, issuing a writ of mandamus requiring the Commission to call a special election, as demanded by the Chambers County Board of Education ("the Board"), to allow the voters to consider a five-mill special school-district tax to be levied for a term of 20 years on property in Chambers County. We reverse and remand with instructions.
A "mill" equals one-tenth of a cent. Thus, the references in the Alabama Constitution and in statutes to "fifty cents on each one hundred dollars" and to "thirty cents on each one hundred dollars," are the equivalent of five mills and three mills, respectively. The constitutional and statutory provisions discussed in this opinion use these terms interchangeably; those constitutional and statutory provisions are attached to this opinion as Appendix A ("Applicable Constitutional Provisions") and Appendix B ("Applicable Code Provisions").
Background
At a meeting of the Commission held on August 20, 2001, the Board, in conjunction with the Board of Education for the City of Lanett, presented a resolution requesting that the Commission call a special election to propose the imposition of a special school-district tax. The resolution specified that the election be held on November 13, 2001, and that the assessment be at the rate of 5 mills and that it be imposed for 20 years.
The Board's resolution specified that any proceeds received from the five-mill assessment were to be used only for "capital purposes, including the payment of indebtedness heretofore or hereafter incurred for capital purposes."
However, the Commission did not act on the resolution but instead tabled the issue; the Commission indicated that it was delaying consideration of whether to schedule the requested special election until it could further examine the impact of a special election on the county's budget. The Commission specifically noted that the special election the Board was requesting would cost in excess of $30,000; it further noted that the Commission did not have the money to fund such a special election and that funds for such a special election had not been included in the county's budget.
A motion was made and seconded to call the election as requested by the Board. A motion was then made to table the motion calling for the election. The tabling motion passed by a vote of 4-2.
The day after the Commission tabled the issue, the Board instituted this action, seeking a writ of mandamus compelling the Commission to hold the special election. The Board asserted that, pursuant to Amendment No. 3 and Amendment No. 202 to the Alabama Constitution of 1901, the Commission was required to call the special election, under the terms requested by the Board, for the purpose of considering the special school-district tax. The Board asserted that Amendment No. 3 and Amendment No. 202 authorized it to set the rate and term of any assessment considered for public school purposes and to specify the date for the special election. In its petition for a writ of mandamus, the Board asserted that the Commission had refused to act, and that, if the special election was not held as specified in the resolution, the voters of Chambers County would be deprived of their right to vote on the requested special assessment and the schools of Chambers County would suffer from a loss of funding.
The Commission answered the Board's petition, asserting that the Board of Education for the City of Lanett was an indispensable party to the action. The Board agreed, and the Board of Education for the City of Lanett was added as a petitioner. (The Board of Education for the City of Lanett and the Board are hereinafter collectively referred to as "the Boards.")
In its response, the Commission asserted that, because the Boards are purely administrative bodies, they had no power to levy or collect a tax unless that power had been expressly delegated to them by the Constitution. The Commission argued that because the constitution had not delegated this power to the Boards, the Commission was the sole taxing authority for Chambers County. The Commission asserted that to allow the Boards to call a special election and to dictate the terms of that election would violate Art. XI, § 212, of the Alabama Constitution of 1901, and Amendment No. 202 to the Alabama Constitution.
The Commission argued that § 16-13-180 and § 16-13-181, Ala. Code 1975, which purportedly granted the Boards the power to dictate the date of any special election, as well as the power to set the rate and term of any special tax assessment, must be construed so as not to violate the Alabama Constitution; otherwise, it argues, those statutes must be declared unconstitutional. The Commission notified the Alabama attorney general that it was challenging the constitutionality of a statute. Although the record does not contain a waiver of service from the attorney general, according to the Boards the attorney general declined to participate in this action.
The Commission noted that it had not refused to act but had merely tabled the issue for later consideration. The Commission further argued that the Boards had viable alternatives to holding a special election. The Commission pointed out that the issue of an additional tax assessment could be placed on the ballot for the June 2002 primary election at a cost to the county of only $500, while holding a special election would cost the county over $30,000.
The Commission asserted that the special election demanded by the Board would have cost the county approximately $30,000, whereas if the election was held on the date proposed by the Commission it would cost the county only $500. The Commission also argued that, under the Boards' interpretation of the constitution and the pertinent statutes, the Boards could repeatedly call for special elections regarding additional property taxes and the Commission would have no choice but to fund every such request, regardless of the expense associated with those special elections. The Commission asserted that such an interpretation defeats the Commission's authority to set the budget for Chambers County and to control county funds.
The Commission asserted that the writ should not issue because, it says, the Boards did not have a clear legal right to the relief sought, the Commission had not refused to perform, and the Boards had available to them another adequate remedy. In short, the Commission argued that the Boards had not met the stringent standards required to justify the issuance of a writ of mandamus.
At a hearing before the Chambers Circuit Court on September 6, 2001, the parties submitted stipulated facts and presented oral arguments (no ore tenus evidence was presented to the trial court). On that day, the trial court entered its order issuing the writ of mandamus and holding that Amendment No. 3 and Amendment No. 202 of the Alabama Constitution of 1901 required the Commission to call a referendum in accordance with the terms in the Boards' resolution. The trial court held that the Commission could not ignore its constitutionally mandated duty, regardless of the financial ramifications of performing that duty.
The Commission raises three issues on appeal:
"1. Pursuant to Amendment No. 202 to the 1901 Constitution of the State of Alabama, can [the Boards] dictate to [the Commission] the rate, term, and conditions of an ad valorem tax levy for educational purposes?
"2. Pursuant to Amendment No. 202 to the 1901 Constitution of the State of Alabama, can [the Boards] demand of [the Commission] the call of a special tax election on a date dictated by [the Boards] in regard to a county-wide ad valorem tax?
"3. Did [the Boards] sustain the burden of proof necessary for the Circuit Court of Chambers County, Alabama, to issue a Writ of Mandamus directing [the Commission] to order a special tax election at the tax rate, for the tax term, and on the date demanded by [the Boards]?"
We conclude that the Boards have no authority to invoke Amendment No. 202 at all. Therefore, we reverse the trial court's order of September 6, 2001, issuing the writ of mandamus.
Discussion
The first sentence of Amendment No. 202 provides:
"The court of county commissioners, board of revenue, or other like governing body of each of the several counties in the state shall have the power to levy and collect a special county tax of not to exceed fifty cents on each one hundred dollars of taxable property. . . ."
Despite this clear language, the Boards argue that the last sentence of Amendment No. 202 expressly authorizes a board of education to levy and collect the "additional property tax for county educational purposes," by its reference to Amendment No. 3:
"The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the school district tax authorized in constitutional amendment III [3]."
Amendment No. 3 addresses special school-district taxes in § 2:
"Section 2. The several school districts of any county in the state shall have power to levy and collect a special district tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such district for public school purposes; provided, that a school district under the meaning of this section shall include incorporated cities or towns, or any school district of which an incorporated city or town is a part, or such other school districts now existing or hereafter formed as may be approved by the county board of education; provided further, that the rate of such tax, the time it is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors of the district and voted for by a majority of those voting at such election; provided further, that no district tax shall be voted or collected except in such counties as are levying and collecting not less than a three-mill special county school tax."
The Boards, citing Runyan v. Thompson, 232 Ala. 390, 390, 168 So. 423, 423-24 (1936), point out that, although § 2 of Amendment No. 3 authorizes the levy of a special school-district tax, "the machinery for putting [that tax] into effect is provided by the Legislature." Thus, the Boards argue, this Court must look to the enabling legislation for guidance as to how a special school-district tax levied pursuant to § 2 of Amendment No. 3 is to be implemented. The Boards also assert that this Court must refer to that same enabling legislation for guidance as to how a property tax levied pursuant to Amendment No. 202 is to be implemented.
The enabling legislation for Amendment No. 3 is codified at § 16-13-180 and § 16-13-181, Ala. Code 1975. Accordingly, the Boards argue that we must consider and construe §§ 16-13-180 and 16-13-181, Ala. Code 1975, to determine whether the Boards are entitled to set the rate and term of any property-tax assessment considered pursuant to Amendment No. 202 for county educational purposes and whether the Boards are entitled to set the date of a special election pursuant to Amendment No. 202.
The successor statutes to §§ 261-270 of the School Code of 1927 are found at § 16-13-180 et seq., Ala. Code 1975. Section 16-13-180 is the successor to § 261 of the 1927 School Code; § 16-13-181 is the successor to § 265 of the 1927 School Code.
Additionally, the trial court's order expressly relied upon those Code sections in issuing the writ of mandumus directing the Commission to hold a special election.
Section 16-13-180, Ala. Code 1975, provides:
"Upon a petition signed by 200 or more qualified electors of any county to the county commission, said county commission shall order an election to be held at the time specified in said petition to determine whether or not a special tax shall be levied for public school purposes within said county; and, upon request of the county board of education to the county commission, said court shall order an election to be held at the time requested by the said board of education to determine whether or not a special tax shall be levied for public school purposes within any school tax district in the county under the control of such board; and, upon the request of any city board of education to the county commission, said court shall order an election to be held at the time requested by said board of education to determine whether or not a special tax shall be levied for public school purposes within said city."
Section 16-13-181, Ala. Code 1975, provides:
"Upon the written request of the county board of education or of the board of education of any city having a city board of education for a special election in any school tax district under the control of the respective board, the county commission shall call an election at the time and for the rural or city school tax districts as requested by the respective board of education and shall appoint three managers and one returning officer for each voting place in the school tax district or at such special voting places as may be designated for the special election by the judge of probate of the county who shall locate such voting places, upon the recommendation of the county board of education, and such special voting places shall be set out in the notices of the special election."
The essence of the Boards' arguments is that the last sentence of Amendment No. 202 grants the Boards the substantive five-mill taxing power granted to the county governing body by the first sentence of Amendment No. 202 and that, therefore, the Boards can invoke Amendment No. 202 for the purpose of calling an election and levying the five-mill tax. The last sentence of Amendment No. 202 reads: "The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the school district tax authorized in constitutional amendment III ." Amendment No. 3 authorizes only a three-mill tax.
The Boards' rationale fails for several reasons. First, the only provision in Amendment No. 202 substantively addressing the power to tax is the first sentence, which grants five-mill taxing power only to the county governing body — not to any school board. The last sentence of Amendment No. 202 purports only to provide for an election procedure, not to provide for any extension or expansion of the substantive five-mill taxing power. Second, the last sentence of Amendment No. 202 is a general provision, which, as a matter of construction, cannot countermand the express, specific provisions of the first sentence limiting the five-mill taxing power to the county governing body. Summers v. State, 244 Ala. 672, 673, 15 So.2d 502, 503 (1943); Cherokee County v. Cunningham, 260 Ala. 1, 4, 68 So.2d 507, 510 (1953); and Ex parte E.J.M., 829 So.2d 105, 108-09 (Ala. 2001). Third, the reference to Amendment No. 3 in the last sentence of Amendment No. 202, which grants only three-mill taxing power, can hardly serve as a vehicle to grant the Boards five-mill taxing power.
For these reasons, only the county governing body — not the Boards — has standing to invoke Amendment No. 202 as a matter of right. The effort of the Boards to invoke Amendment No. 202 for its five-mill taxing power was unauthorized and ineffectual. Therefore, § 16-13-180 and § 16-13-181, Ala. Code 1975, cited by the Boards as the enabling legislation for Amendment No. 202, are not germane to this case.
For these reasons, the Boards were not entitled to a writ of mandamus to enforce the Boards' claim to taxing power under Amendment No. 202. Therefore, the order of the trial court issuing the writ is reversed and the cause is remanded with instructions for the trial court to vacate its writ.
APPLICATION GRANTED; OPINION OF AUGUST 2, 2002, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH DIRECTIONS.
See, Lyons, Johnstone, Harwood, and Woodall, JJ., concur.
Moore, C.J., and Houston and Brown, JJ., concur in the result.
Stuart, J., concurs in the result and dissents from the rationale.
APPENDIX A Applicable Constitutional Provisions Art. XI, § 212, Ala. Const. of 1901
The power to levy taxes shall not be delegated to individuals or private corporations or associations.
Amendment No. 202, Ala. Const. of 1901
Additional Property Tax for County Educational Purposes
The court of county commissioners, board of revenue, or other like governing body of each of the several counties in the state shall have the power to levy and collect a special county tax of not to exceed fifty cents on each one hundred dollars of taxable property, in addition to all other taxes now or hereafter authorized by the Constitution and laws of Alabama, for educational purposes, on the value of the taxable property in the county as assessed for state taxation, provided the purpose thereof, and the time such tax is proposed to be continued shall have been first submitted to a vote of the qualified electors of the county and voted for by a majority of those voting at such election. If any proposal to levy the tax is defeated in any election, subsequent elections thereon may be held at any time. The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the school district tax authorized in constitutional amendment III [3].
Amendment No. 3, Ala. Const. of 1901
Special School Tax Amendment
Article XIX, Section 1. The several counties in the state shall have power to levy and collect a special county tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such counties in addition to that now authorized or that may hereafter be authorized for public school purposes, and in addition to that now authorized under section 260 of article XIV of the Constitution; provided, that the rate of such tax, the time it is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors of the county, and voted for by a majority of those voting at such election.
Section 2. The several school districts of any county in the state shall have power to levy and collect a special district tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such district for public school purposes; provided, that a school district under the meaning of this section shall include incorporated cities or towns, or any school district of which an incorporated city or town is a part, or such other school districts now existing or hereafter formed as may be approved by the county board of education; provided further, that the rate of such tax, the time it is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors of the district and voted for by a majority of those voting at such election; provided further, that no district tax shall be voted or collected except in such counties as are levying and collecting not less than a three-mill special county school tax.
Section 3. The funds arising from the special county school tax levied and collected by any county shall be apportioned and expended as the law may direct, and the funds arising from the special school tax levied in any district which votes the same independently of the county shall be expended for the exclusive benefit of the district, as the law may direct.
APPENDIX B Applicable Code Provisions Article 9 County and District Three-Mill School Taxes
§ 16-13-180. Petition for election; calling of election.
Upon a petition signed by 200 or more qualified electors of any county to the county commission, said county commission shall order an election to be held at the time specified in said petition to determine whether or not a special tax shall be levied for public school purposes within said county; and, upon request of the county board of education to the county commission, said court shall order an election to be held at the time requested by the said board of education to determine whether or not a special tax shall be levied for public school purposes within any school tax district in the county under the control of such board; and, upon the request of any city board of education to the county commission, said court shall order an election to be held at the time requested by said board of education to determine whether or not a special tax shall be levied for public school purposes within said city.
§ 16-13-181. Request by board of education for election.
Upon the written request of the county board of education or of the board of education of any city having a city board of education for a special election in any school tax district under the control of the respective board, the county commission shall call an election at the time and for the rural or city school tax districts as requested by the respective board of education and shall appoint three managers and one returning officer for each voting place in the school tax district or at such special voting places as may be designated for the special election by the judge of probate of the county who shall locate such voting places, upon the recommendation of the county board of education, and such special voting places shall be set out in the notices of the special election.
I agree with Justice Stuart that this case is better decided on the principle of the nondelegation of legislative power, rather than on the strained reading of Amendment No. 202 relied upon in the per curiam opinion. School boards are administrative bodies to which the Legislature has not delegated — and cannot delegate — taxing powers that are reserved to it and its subordinate representative bodies by the Alabama Constitution. The constitutional provisions at issue in this case must be given a reasonable reading, one that avoids contradicting the nondelegation principle. Although I cannot adopt the reasoning of the main opinion, I agree with the conclusion it reaches that the Chambers Circuit Court's decision to issue a writ of mandamus to the Commission is due to be reversed.
I concur in the result reached by the per curiam opinion. However, I dissent from the rationale of that opinion, particularly from the following statement: "The essence of the Boards' arguments is that the last sentence of Amendment No. 202 grants the Boards the substantivefive-mill taxing power granted to the county governing body by the first sentence of Amendment No. 202 and that, therefore, the Boards can invoke Amendment No. 202 for the purpose of calling an election and levying the five-mill tax." 852 So.2d at 106. I also dissent from the statement that "§ 16-13-180 and § 16-13-181 . . . are not germane to this case." 852 So.2d at 107.
In arguing that they have the right to set the date of an election for the tax requested and the right to set the rate and the term of the requested tax, the Boards expressly rely upon the language of § 16-13-181, Ala. Code 1975. The Boards also rely upon the fact that Amendment No. 202 expressly provides that an election on the tax authorized in that Amendment is to be conducted in the same manner as an election on the school-district tax authorized in Amendment No. 3. As the per curiam opinion recognizes, § 2 of Amendment No. 3 authorizes the levy of special school-district taxes, but "the machinery for putting [those taxes] into effect is provided by the Legislature." Runyan v. Thompson, 232 Ala. 390, 390, 168 So. 423, 423-24 (1936). It is undisputed that the enabling legislation for Amendment No. 3 is found at § 16-13-180 and § 16-13-181, Ala. Code 1975.
The Boards relied upon § 16-13-181, Ala. Code 1975, before the trial court; additionally, the trial court's order expressly relied upon that Code section in issuing the writ of mandamus to the Commission.
Thus, the reference in Amendment No. 202 to "the manner provided for an election on the school district tax authorized in constitutional amendment III [3]" is not a reference to the first sentence of Amendment No. 202, nor is it a reference to the language of Amendment No. 3; it is a reference to § 16-13-180 and § 16-13-181. The per curiam opinion simply ignores or misconstrues the Boards' arguments. I feel compelled to address them.
I. Do the Boards have the authority to set the rate and term of property-tax assessments considered pursuant to Amendment No. 202?
The Boards argue that the following language of § 16-13-181 authorizes them to set the rate and term of any property-tax assessment considered under Amendment No. 202:
"Upon the written request of the county board of education or the board of education of any city . . . for a special election in any school tax district under the control of the respective board, the county commission shall call an election at the time and for the rural or city school tax districts as requested by the respective board of education. . . ."
(Emphasis added.) The Boards argue that the "as requested" language in § 16-13-181 — "the county commission shall call an election . . . as requested by the respective board of education" — requires the Commission to set the special election under any terms requested by the Boards — including the rate and term of any special property-tax assessment to be considered by the voters. However, I find nothing in § 16-13-180 or § 16-13-181 that grants the boards of education of this state the authority to set the rate and term of a property-tax assessment considered under Amendment No. 202.
As this Court has previously recognized, setting the rate of taxation is inherently a part of the power of "levying" taxes. See Opinion of the Justices No. 263, 379 So.2d 939, 940-41 (Ala. 1980). If this Court interpreted "as requested" to mean that the Boards possessed the power to set the rate of the property-tax assessments considered pursuant to Amendment No. 202, we would be interpreting a legislative enactment to grant boards of education the power to levy taxes. I cannot interpret that phrase so broadly as to contradict Art. XI, § 212, of the Alabama Constitution of 1901, which provides: "The power to levy taxes shall not be delegated to individuals or private corporations or associations." See Opinion of the Justices No. 211, 291 Ala. 262, 266, 280 So.2d 97, 101 (1973) ("Boards of education being administrative in nature cannot be deemed municipal corporations having powers of taxation, a purely legislative function.").
This rationale is equally applicable to the question of setting the term of any assessment to be considered under Amendment No. 202. For the same reason that setting the rate of taxation is inherently a part of the power to levy a tax, setting the term of a tax is also part and parcel of that same power. I find no other express grant of authority in Amendment No. 202 or in §§ 16-13-180 and 16-13-181 empowering the Boards to dictate the rate or term of the property-tax assessments considered pursuant to Amendment No. 202.
For these reasons I agree with the conclusion reached by the per curiam opinion that the Boards have no authority to set the rate of special property-tax assessments considered under Amendment No. 202; also for these reasons, I agree with the per curiam opinion that the Boards have no authority to set the term of any special property-tax assessments considered under Amendment No. 202.
II. Do the Boards have the authority to set the date of the election?
The Boards also argue that the language found in § 16-13-181 — "the county commission shall call an election at the time . . . requested by the respective board of education" — requires the Commission to call an election for consideration of a special property tax proposed pursuant to Amendment No. 202 on any date selected by the Boards. I also note that § 16-13-180 contains similar language:
"[U]pon request of the county board of education to the county commission, said court shall order an election to be held at the time requested by the said board of education to determine whether or not a special tax shall be levied for public school purposes within any school tax district in the county under the control of such board. . . ."
These statutes repeatedly use mandatory language; they specifically provide that the Commission "shall" call the election at the time requested by the Boards. Thus, as written, § 16-13-180 and § 16-13-181 require the Commission to call the election on the date selected by the Boards. I note that the county is required to fund these elections, which, because of the language of Amendment No. 202, may be called repeatedly.
Amendment No. 202 provides that "[i]f any proposal to levy the tax is defeated in any election, subsequent elections thereon may be held at any time."
I find this purported grant of power to boards of education problematic. A legislative enactment that allows a board of education to determine the date on which an election shall take place, particularly with no limitation as to how often that power may be exercised and that gives no discretion to the county's governing body to control that process, gives the board of education unfettered control over a county's budget. Although there is no absolute and universal standard for determining those powers that a legislative body must itself exercise and those that may be delegated to an administrative agency, see State v. Vaughan, 30 Ala. App. 201, 4 So.2d 5 (1941), it is clear that the power to control the financial affairs of a county belongs to the governing body of a county and not to a board of education. See § 11-8-1 et seq., Ala. Code 1975 (placing the financial control of a county in the hands of the county commission); see also Geneva County Comm'n v. Tice, 578 So.2d 1070 (Ala. 1991), in which this Court stated:
"We reiterate the holding in Morgan County Comm'n v. Powell[, 292 Ala. 300, 293 So.2d 830 (1974),] that `the true intent of the legislature was to place in the county governing body, which body appropriates the public monies, the final say-so in the disposition of such funds, and thus centralize in the legislative body a function lawfully and traditionally delegated to that body by the legislature.' 292 Ala. at 310, 293 So.2d at 839."
Determining the proper expenditure of county funds is a legislative function; it is not an administrative one. For the same reason the Legislature may not delegate the power to levy taxes to an administrative board, it may not delegate the power to control the county's budget to the county board of education. See Freeman v. City of Mobile, 761 So.2d 235, 236-37 (Ala. 1999) ("although the Legislature can delegate the power to make rules and regulations for the `purpose of carrying [the law] into practical effect and operation . . . and to secure an effective execution of the same,' . . . it cannot delegate the power to repeal, amend, or otherwise supplant an act of the Legislature"); Folsom v. Wynn, 631 So.2d 890, 894 (Ala. 1993) ("the Legislature may not constitutionally delegate its powers, whether the general power to make law or the powers encompassed within that general power, including the `power of the purse'").
Because other constitutional amendments also adopt the election mechanism referenced in § 2 of Amendment No. 3 governing school-district taxes, § 16-13-180 and § 16-13-181 purport to grant this same power to set election dates to boards of education in other seemingly illogical contexts. See, e.g., Amendment No. 269 (authorizing the levy of a tax for "public library purposes" in any county or incorporated municipality and adopting the election mechanism applicable to school-district taxes referenced in Amendment No. 3, § 2); Amendment No. 311 (authorizing the levy of a tax for "general health purposes" in Lawrence, Limestone, and Morgan Counties and adopting the election mechanism applicable to school-district taxes referenced in Amendment No. 3, § 2). Thus, if § 16-13-180 and § 16-13-181 are enforceable, a county commission must call a special election whenever its county board of education so demands for the purpose of considering a special property tax for "public library purposes"; likewise, the county commissions in Lawrence, Limestone, and Morgan Counties must call a special election whenever the boards of education in those counties so demand for purposes of considering a special property tax for "general health purposes."
Additionally, I read § 16-13-180 to require a county commission to levy the tax if approved by the voters of that county. (See § 16-13-180, which provides, in part: "upon request of the county board of education to the county commission, said court shall order an election to be held at the time requested . . . to determine whether or not a special tax shall be levied" (emphasis added).) Requiring such action by a county commission conflicts with the permissive nature of the powers granted county commissions in Amendment No. 202 ("The court of county commissioners . . . shall have the power to levy and collect a special county tax. . . ."). The statute's mandatory language also violates governing legal principles recognized in Opinion of the Justices No. 211:
"The provision in the bill permitting the question of whether to permit the question of levying the tax be submitted to the qualified voters is constitutionally permissible if such question is submitted by the governing body of a county, and not by a board of education, and provided further that the result of such vote be considered as advisory only, it being clear under governing legal principles that the ultimate question of levying such tax can be accomplished only by an ordinance enacted by the governing body of a county."
291 Ala. 262, 267, 280 So.2d 97, 101. See also Opinion of the Justices No. 168, 270 Ala. 42, 115 So.2d 475 (Ala. 1959) (recognizing that the actual and final decision whether to levy a tax must be made by the governing body of a county, even if that governing body refuses to levy a tax approved by the voters).
For these reasons, I believe that § 16-13-180 and § 16-16-13-181, Ala. Code 1975, improperly allow the boards of education to control the financial affairs of the county and represent an improper delegation of legislative power to an administrative agency. I would also find that § 16-13-180 and § 16-13-181, to the extent they purport to require county commissions to set an election on the date requested by the boards of education, are unenforceable as written. I would also find that § 16-13-180 improperly attempts to require county commissions to exercise their powers of taxation.
III. Does § 2 of Amendment No. 3 authorize boards of education to levy a special school-district tax?
In its application for rehearing, the Chambers County Board of Education asserts that, although it is not now seeking and has never sought the power to levy a tax, boards of education possess this power by virtue of § 2 of Amendment No. 3. Because whether § 2 of Amendment No. 3 grants the boards of education the power to levy a special school-district tax is not essential to resolution of the issues raised on appeal, I need not address the validity of this argument in this writing. That issue must await another day.
Only the Chambers County Board of Education sought a rehearing of this Court's earlier opinion; the Board of Education for the City of Lanett did not join in the application for rehearing. The Chambers County Board of Education argues in its application for rehearing that this Court's original per curiam opinion, in which this Court stated that "any attempt by the Legislature to delegate to a board of education the legislative powers of taxation is improper" was "overbroad and wrong."