Alabama Advisory Opinions August 24, 2005: AGO 2005-189 (August 24, 2005)

Alabama Attorney General Opinions

2005.

AGO 2005-189.

Dear Mr. Enslen:

This opinion of the Attorney General is issued in response to your request on behalf of the Elmore County Commission.

QUESTIONS

(1) Where an election is held in only part of a school district and a tax is approved by the voters in that part, does a tax levied only in that part of the district comply with the requirements of Amendment 382?

(2) Is it a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution for the citizens who own property on the Elmore County side of the school district to be required to pay more school district taxes than the citizens who own property on the Tallapoosa County side of the same school district?

(3) Should the judge of probate assess and collect this tax on motor vehicles?

FACTS AND ANALYSIS

Amendment 382 of the Constitution of Alabama grants authority to school districts to levy and collect a three mill ad valorem tax. The Tallassee City School District is partly in Elmore County and partly in Tallapoosa County. The qualified electors of a part of the school district, by majority vote, approved such a tax. The part of the school district approving the tax consisted of the Elmore County side of the Tallassee City school district. No similar vote was held in or for the Tallapoosa County side of the Tallassee City school district.

The Elmore County Commission first levied the tax on February 10, 2003. Collection of the ad valorem tax on real property situated within the Elmore County side of the school district commenced thereafter. The Elmore County Judge of Probate's Office, however, has not yet assessed or collected the additional three mills Tallassee City school district tax on motor vehicles.

Amendment 382 of the Constitution of Alabama is now codified as section 269.05 of the Recompiled Constitution of Alabama, as amended. It provides as follows:

In addition to any and all taxes now authorized, or that may be hereafter authorized by the Constitution and laws of Alabama, the several school districts of any [county] in the state shall have power to levy and collect an additional special district school tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such district for public school purposes in addition to that now authorized or that may hereafter be authorized for public school purposes; provided, that a school district under 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.

Ala. Const. art. XIV, § 269.05 (amend. 382) (emphasis added).

In an opinion to Honorable William J. Trussell, this office cited Runyan v. Thompson , 232 Ala. 390, 168 So. 423 (1936), and stated that the procedure for putting into effect the tax authorized by Amendment 382 is contained in section 16-13-180, et seq ., of the Code of Alabama. This Office further stated that these statutory provisions do not allow for the subdividing of a school district once it has been established. Opinion to Honorable William J. Trussell, Attorney, St. Clair County Board of Education, dated May 5, 1997, A.G. No. 97-00174.

Amendment 382 specifically provides that the rate of the tax, the time it is to continue, and the purpose of the tax must be submitted to a vote of the qualified electors of the district, and it must be voted on and approved by a majority of those voting at such election. This constitutional provision does not allow for a vote in only a part of a school district, nor does it allow for any tax levied pursuant to it to apply to only a part of a school district. Consequently, the tax levied does not comply with the requirements of Amendment 382 and the probate judge should not assess and collect this tax on motor vehicles.

It is not the policy of this Office to give opinions on the constitutionality of legislative enactments. Consequently, Question 2 will not be addressed.

CONCLUSION

A tax may not be levied pursuant to Amendment 382 in only part of a school district.

I hope this opinion answers your questions. If this office can be of further assistance, please contact Ron Bowden, Legal Division, Department of Revenue.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/RB

213116/80811

October 14, 2005

Dear Mr. Cottle:

This letter is in response to your request for reconsideration of the opinion issued to Honorable John E. Enslen, Attorney, Elmore County Commission, dated August 24, 2005, A. G. No. 2005-189.

In that opinion this Office concluded that a three mill ad valorem tax may not be levied pursuant to Amendment 382 in only part of a school district. Your request points out that in 2002 the Elmore County Commission, at the request of the Tallassee City Board of Education, ordered and conducted an election in the portion of the Tallassee City school district that lies within Elmore County. The voters approved the tax, and collection of the ad valorem taxes on real property began in February 2003. A portion of the City of Tallassee and the city school district also lies within Tallapoosa County, but a similar election was not held in Tallapoosa County, and no additional taxes are being collected in Tallapoosa County.

After further review of the facts presented, this Office concludes that the Enslen opinion should be rescinded because the issue was and is moot. In this case, the election has already taken place and ad valorem taxes on real property are being collected. This Office is not authorized to issue opinions with respect to the validity of actions already taken. Ala. Code § 36-15-1 (2001). Furthermore, elections are presumed to be valid and only a court of competent jurisdiction may determine otherwise.

I hope this information is helpful. If you have any questions, please do not hesitate to contact me.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS

cc: John E. Enslen

221344v1/80811