Opinion
No. 1010273.
Decided August 2, 2002.
Appeal from Chambers Circuit Court (CV-01-202).
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 in Chambers County 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.
One "mill" equals one-tenth of a cent. Thus, 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.
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 in Chambers County. 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 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 examine the impact of such an election on the Chambers County budget. The Commission specifically noted that the special election the Board was requesting would cost the County 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 budget for Chambers County.
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 in 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 Chambers County Board of Education and the Board of Education for the City of Lanett 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, they had no power to levy a tax and 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, and Amendment No. 202 to the 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 Constitution of Alabama; 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 the special election. The Commission pointed out that the issue of an additional tax assessment could be added to 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 Boards did not have a clear legal right to the relief sought, that the Commission had not refused to perform, and that the Boards had available to them another adequate remedy. In short, the Commission argued that the Board 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 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 regards 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 specify the rate or the term of a special ad valorem assessment proposed pursuant to Amendment No. 202. We further conclude that the Boards have no authority to specify the date upon which such a special assessment must be presented to the qualified voters of the county for consideration. We reverse the trial court's order of September 6, 2001, issuing the writ of mandamus. Because of our resolution of the first two issues, we pretermit consideration of the third issue.
Discussion
Section 44 of the Constitution of 1901 provides that "[t]he legislative power of this state shall be vested in a legislature, which shall consist of a senate and a house of representatives."
"The levying of a tax is a purely legislative power. Opinion of the Justices, 291 Ala. 262, 280 So.2d 97 (1973). Setting the rate of taxation is inherently a part of the power to `levy' taxes [see Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523 (1929)]. Delegation of the power to levy taxes is expressly limited by Article XI, Section 212 of the Constitution of 1901."
Opinion of the Justices No. 263, 379 So.2d 939, 940-41 (Ala. 1980) (bracketed language original).
Article XI, § 212, Ala. Const. 1901, provides: "The power to levy taxes shall not be delegated to individuals or private corporations or associations." This section has been interpreted to prohibit the Legislature from authorizing a public corporation, other than a municipal corporation, to levy taxes. See Opinion of the Justices No. 175, 275 Ala. 386, 155 So.2d 343 (1963) (a legislative bill that proposed to authorize the Mobile County Hospital Board to levy a tax on motor vehicles violated Article I, § 23, and Article XI, § 212, Ala. Const. 1901). See also Opinion of the Justices No. 263 (legislative bill that proposed to authorize the savings and loan commissioner to fix the rate at which savings and loan associations would be assessed offended Article XI, § 212, and Article IV, § 44, Ala. Const. 1901).
Opinion of the Justices No. 211, 291 Ala. 262, 280 So.2d 97 (1973), is of particular significance to the issues raised in this appeal. In that opinion, the Alabama Supreme Court was responding to a request by the Alabama Senate for an advisory opinion as to the constitutionality of a bill authorizing elected boards of education to levy certain taxes. The Court stated:
"[T]he office and powers of the respective boards of education are to administer, supervise, and manage the schools within their jurisdictions. In other words, their duties are administrative, and not legislative.
". . . .
"Boards of education being administrative in nature cannot be deemed municipal corporations having powers of taxation, a purely legislative function.
". . . .
"1. That aspect of the bill authorizing the boards of education . . . to levy taxes, is constitutionally impermissible as being an unlawful delegation of the power to tax to a public corporation which is not a municipal corporation.
"2. That aspect of the bill authorizing the governing body of any county . . . to levy a privilege tax is not a violation of Section 212 of our Constitution.
"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 a governing body of a county."
291 Ala. at 265-67, 280 So.2d at 100-01 (emphasis added).
Thus, this Court has previously held that boards of education are purely administrative in nature, not legislative. Therefore, any attempt by the Legislature to delegate to a board of education the legislative power of taxation is improper. However, as Opinion of the Justices No. 211, supra, recognized, it is not improper for the Legislature to delegate its powers of taxation to the governing body of a county.
Applying these principles to this case, we conclude that the Commission, as the governing body of Chambers County, is the only entity empowered to levy and collect the taxes authorized by Amendment No. 202 of the Alabama Constitution of 1901. See Amend. No. 202, Ala. Const. 1901 ("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 . . ., in addition to all other taxes now or hereafter authorized by the Constitution and laws of Alabama. . . .).
Despite the clear language in the first sentence of Amendment No. 202, 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" authorized in that amendment. The last sentence of Amendment No. 202 provides:
"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]."
The reference to Amendment No. 3 is a reference to § 2 of that amendment, which provides:
"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."
We reject the Boards' interpretation of the last sentence of Amendment No. 202 for several reasons.
The Boards assert that under Amendment No. 202, which references Amendment No. 3, a board of education possesses the power of taxation. As we have already noted, a board of education is not a municipal corporation; it is merely an administrative body, an entity to which, this Court has held, the Legislature may not delegate the power of taxation. See Opinion of the Justices No. 211, supra.
Further, Amendment No. 3 refers only to a three-mill assessment. The Boards in this case demanded a five-mill assessment, but they cite no authority allowing them to seek a five-mill assessment.
Both the joint resolution presented to the Commission and the petition for the writ of mandamus filed with the trial court requested that a special election be held on the issue of a special school district tax of five mills to be levied for a term of 20 years.
Finally, to construe the last sentence of Amendment No. 202 to have the meaning urged by the Boards requires this Court to ignore the first sentence of Amendment No. 202. Such a construction would improperly elevate a provision outlining the procedure for an election over a provision listing the very entities entitled to levy and collect the property tax authorized in that amendment. We decline to read the last sentence of Amendment No. 202 in such a strained manner.
"`A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.'"
Ex parte Welch, 519 So.2d 517, 519 (Ala. 1987), quoting 2A Norman J. Singer, Sutherland Statutes and Statutory Construction § 46.06 (4th ed. 1984). See also Guy H. James Constr. Co. v. Boswell, 366 So.2d 271, 273 (Ala. 1979), in which this Court stated:
"An obvious error in the language of a statute is self-correcting. State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). In such an instance, the Court may substitute the correct word when it can be ascertained from the context of the act. C. Sands, 2A Sutherland Statutes and Statutory Construction § 47.36 (1973)."
Because the last sentence of Amendment No. 202 cannot be harmonized either with the first sentence of that amendment or with long-standing principles of constitutional law relating to taxation, we conclude that the last sentence of Amendment No. 202 contains an obvious scrivener's error that is self-correcting. Ex parte Welch, supra; Guy H. James Constr. Co., supra. After correcting this error, we read the last sentence of Amendment No. 202 as follows:
"The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the special county tax authorized in constitutional amendment III [3]."
(Emphasized words substituted.) Section 1 of Amendment No. 3 empowers the counties in the State to levy and collect a special county tax for public school purposes. Thus, after correction of the scrivener's error, Amendment No. 202 refers to the election procedures and mechanisms governing the special county tax authorized in § 1 of Amendment No. 3. We decide the issues before us assuming the correction of this error.
In Runyan v. Thompson, 232 Ala. 390, 390, 168 So. 423, 423-24 (1936), the Court recognized that, although Amendment No. 3 authorizes the levy of special school taxes, "the machinery for putting it into effect is provided by the Legislature. School Code 1927, § 261-270." Thus, the manner in which a special county tax is to be considered by the voters of a county or of a school district is specified in § 1 of Amendment No. 3, as put into effect by the legislation implementing its provisions.
The parties agree that the legislation implementing Amendment No. 3 is now codified at § 16-13-180 and § 16-13-181, Alabama Code 1975; § 16-13-180 and § 16-13-181 have been declared the "machinery for putting [Amendment No. 3] into effect." Runyan, supra. Accordingly, this Court must consider and construe § 16-13-180et seq., Ala. Code 1975, to determine whether the Boards are entitled to set the rate and term of any ad valorem assessment and the date of a special election authorized under Amendment No. 202 and Amendment No. 3. We examine the text of these statutes in full below.
The successor to the School Code of 1927, §§ 261-270, is found in § 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 relies upon § 16-13-180 and § 16-13-181 in issuing the writ of mandamus to the Commission.
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."
Having identified the applicable constitutional language and implementing legislation, we now turn to the issues presented for decision: whether the Boards have the authority to specify the rate and term of any special ad valorem assessment and whether the Boards have the authority to specify the date on which an election must be called to allow the voters to consider such a special ad valorem assessment. We answer each of these questions in the negative.
The Boards rely upon the following language of § 16-13-181, as authorizing it to set the rate and term of any ad valorem assessment considered under Amendment No. 202; the Boards assert that this language also requires the Commission to call an election upon the date selected by the Boards for consideration of any ad valorem assessment authorized under that amendment:
"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 districts as requested by the respective boards of education. . . ."
Ala. Code 1975, § 16-13-181 (emphasis added).
First, the Boards argue that the language "the county commission shall call an election . . . as requested by the respective boards of education" must be construed to mean that the Commission must set the special election under any terms requested by the Boards. However, because we have corrected Amendment No. 202 to refer to the special county tax authorized in Section 1 of Amendment No. 3, rather than to the special school district tax authorized in Section 2 of Amendment No. 3, we do not find § 16-13-181, Ala. Code 1975, relevant to the issues presented on appeal. Section 16-13-181 addresses the election mechanism relevant to the special school district tax and is therefore inapplicable to Amendment No. 202, after our correction to the scrivener's error found in that amendment. Thus, the language relied upon by the Boards does not support their position.
Even if we were to construe § 16-13-181 to apply to the election mechanism governing the special county tax authorized under Amendment No. 202, we could not interpret the phrase "as requested" so broadly as to contradict Art. XI, § 212, of the Alabama Constitution and our previous opinions.
Further, we find nothing in the implementing legislation that purports to authorize the boards of education to set the rate and term of any special county tax, and we conclude that Amendment No. 202 empowers only the county commission to levy and collect the special ad valorem tax for county educational purposes. Indeed, as we have already recognized, setting the rate of taxation is inherently a part of the power to "levy" taxes, see Opinion of the Justices No. 263, supra. For these reasons, we conclude that the Boards have no authority to set the rate of any special ad valorem assessments considered under Amendment No. 202. This rationale is equally applicable to the question of setting the term of any assessment. We conclude that the Boards have no authority to set the term of any ad valorem assessments authorized under Amendment No. 202.
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. However, as noted above, § 16-13-181 is inapplicable to a special county tax, and we find nothing in § 16-13-180 et seq., that requires the Commission to call an election for consideration of a special county tax on the date specified by the Boards. Therefore, we conclude that the Boards have no authority to specify the date of the election referenced in Amendment No. 202, as corrected by this Court today.
Conclusion
We conclude that the last sentence of Amendment No. 202 contains an obvious, self-correcting scrivener's error, and that that sentence should be corrected to read as follows:
"The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the special county tax authorized in constitutional amendment III [3]."
We conclude that the Boards do not have the authority to set the rate and term of any ad valorem assessment considered under Amendment No. 202; we also conclude that the Boards do not have the authority to set the date of the election for a special county tax proposed pursuant to Amendment No. 202. We reverse the trial court's order of September 6, 2001, and remand the case for the trial court to vacate its writ of mandamus.
REVERSED AND REMANDED.
Houston and Harwood, JJ., concur.
Moore, C.J., and Lyons, Brown, Woodall, and Stuart, JJ., concur in the result.
Johnstone, J., concurs in part and dissents in part as to the rationale, and concurs in the judgment.
I concur in that part of the rationale of the main opinion which corrects the obvious scrivener's error in Amendment No. 202, Ala. Const. 1901. I further concur that Amendment No. 202, so corrected, refers to only the special county tax authorized by Section 1 of Amendment No. 3, Ala. Const. 1901, and does not refer to the special district tax authorized by Section 2 of Amendment No. 3. I further concur that, for enablement, the corrected version of Amendment No. 202 depends only on the very first clause of § 16-13-180, Ala. Code 1975, the part before the first semicolon, which governs the levying of a special county tax, and does not authorize, require, or allow any participation by any school board at all. I further concur that the other clauses of § 16-13-180 and the provisions of § 16-13-181, Ala. Code 1975, are not germane to the case now before us.
This part of the rationale of the main opinion, in and of itself, restricts the authority granted by Amendment No. 202 to counties, excludes boards of education from the five-mill taxing authority granted by Amendment No. 202, and therefore requires reversal of the trial court judgment purporting to effectuate the effort of the Chambers County Board of Education to invoke Amendment No. 202 to levy a five-mill tax. Therefore, I respectfully dissent from the dictum in the main opinion to the effect that boards of education have no taxing power at all (as distinguished from the particular Amendment No. 202 five-mill taxing power that the boards do not have) and that the Legislature cannot delegate taxing power to boards of education. This dictum seems to contradict the provisions of Section 2 of Amendment No. 3, which, although not germane to the case now before us, are valuable to the people of our State. Section 2 of Amendment No. 3 to the Constitution expressly grants three-mill taxing authority to "[t]he several school districts of any county in the state." While, by § 16-13-188, Ala. Code 1975, the Legislature has, in the existing scheme, delegated the actual levying duty to the county governments, the issues in the case before us do not require or entitle us either to foreclose the other options Section 2 of Amendment No. 3 offers the Legislature or to curtail the power Section 2 of Amendment No. 3 expressly grants to school districts.