Opinion
4 Div. 114.
February 5, 1935.
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Petition of K. C. Tigner for mandamus to I. I. Moses, A. W. Pitts, and A. A. Dozier, as Commissioners (governing board) of Russell County, requiring payment of salary to petitioner, as Tax Assessor of said county under Acts, Extra Session 1933, p. 120. From a judgment awarding the writ, respondents appeal.
Reversed and rendered.
Conforming to answer to certified question in 229 Ala. 645, 159 So. 258.
Roy L. Smith, of Phenix City, for appellants.
The act of 1933 is a local law guised as a general law, and is void for failure of compliance with section 106 of the Constitution. State ex rel. v. Gullatt, 210 Ala. 452, 98 So. 373; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; Walden v. Montgomery, 214 Ala. 409, 108 So. 231; State v. Williams, 207 Ala. 517, 93 So. 381; State ex rel. v. Weakley, 153 Ala. 647, 45 So. 175; Carnley v. Moore, 218 Ala. 274, 118 So. 409.
J. W. Brassell, of Phenix City, for appellee.
The act in question is not a special, private, or local law within the purview of the Constitution. While it may, when passed, have applied to only one county, yet it has a field of operation, and can in future apply to other counties. Board of Revenue v. Huey, 195 Ala. 83, 70 So. 744; Stone v. State ex rel. Berney, 20 Ala. App. 69, 101 So. 58. The paramount question to be determined is the legislative intent. Davis v. State, 68 Ala. 58, 44 Am.Rep. 128; State ex rel. Turner v. Henderson, 199 Ala. 244, 74 So. 344, L.R.A. 1917F, 770.
The petition for mandamus is based upon an act of the Legislature of 1933, approved April 11, 1933, entitled "An Act To provide for the more efficient and convenient assessment and collection of State and County taxes in every county of the State of Alabama whose boundary lines have been altered or rearranged by the addition of new territory thereto, or by the transfer of territory therefrom, or both, and to provide compensation therefor." Acts 1933, Ex. Sess., p. 120.
The judges of this court having reached the unanimous conclusion that said act was in violation of the Constitution of 1901, and was therefore void and of no effect, referred the question to the Supreme Court under and by authority of section 7322 of the Code of 1923, to which was the following response:
"The Act limits its application to counties, the boundary lines of which have been, since January 1, 1931, or hereafter may be, 'altered or rearranged by the addition of new territory taken from any other adjoining county * * * if the county to which such territory is added have two courthouses, or two offices where the Probate Court of said county is held and conducted,' a classification which, as a matter of judicial knowledge, can only apply, in the absence of future legislation, to the county of Russell. Henry, County Treasurer, v. Wilson, 224 Ala. 261, 139 So. 259.
"While the act is general in form, it is clearly local in its application and effect, and the attempted classification must be condemned as designation rather than a classification. Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; Birmingham Electric Co. v. Harry, 215 Ala. 458, 111 So. 41.
"The act was passed in violation of the provisions of section 106 of the Constitution, and must be pronounced unconstitutional and void. Const. 1901, §§ 106, 110.
"It is a matter of serious doubt whether it could be upheld, even if section 106 of the Constitution had been complied with. See Bridges v. McWilliams, Chairman of Democratic Executive Committee, 228 Ala. 135, 152 So. 457, and Crow v. Board of School Com'rs of Mobile County, 228 Ala. 107, 152 So. 26.
"Let this response be certified to the Court of Appeals.
"All the Justices concur."
The act above being void, the judgment is reversed, and a judgment will here be entered dismissing the petition.
Reversed and rendered.