Alabama Advisory Opinions January 15, 1999: AGO 1999-089 (January 15, 1999)
Collection: Alabama Attorney General Opinions
Docket: AGO 1999-089
Date: Jan. 15, 1999
Advisory Opinion Text
AGO 1999-089.
Mobile County Attorney
205 Government Street
Mobile, Alabama 36644-1001
Dear Mr. Wettermark:
This opinion of the Attorney General is issued in response to your request.
Does the Act's reference to a tax "in addition to all other taxes now or hereafter authorized," and its failure to specify that it is for the purpose of approving the increase of a designated existing tax, cause the Act to fail to meet the requirements for the increase of an existing ad valorem tax set forth in subsection (f) of Amendment No. 373 to the Alabama Constitution?
Your request involves a resolution adopted by the Mobile County Commission to raise an ad valorem tax it now levies and collects to be used for educational purposes. The pertinent parts of the resolution are as follows:
Section 2. Findings . The Board [of School Commissioners of Mobile County] has ascertained and does hereby find and declare as follows:
(a) The [Mobile] County is presently authorized to levy and collect the Special School District Tax at a rate of $.35 on each one hundred dollars (3.5 mills on each dollar) of assessed value pursuant to Amendment No. 3 [of the Alabama Constitution] and proceedings heretofore taken by the Commission under Amendment No. 325 to the Constitution.
(b) The Board [of School Commissioners of Mobile County] has requested that the County increase the rate at which the Special School District Tax is levied to a maximum rate, for any tax year of the County, which is equal to $1.85 on each one hundred dollars (18.5 mills on each dollar) of assessed value.
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Section 3. Proposed Increase in Rate of Special School District Tax . Pursuant to subsection (f) of Amendment No. 373 and after the said special public hearing, the Commission, acting pursuant to the request of the Board [of School Commissioners of Mobile County], proposes to increase the rate at which the County is authorized to levy and collect the Special School District Tax to a maximum rate, for any tax year of the County, which is equal to $1.85 on each $100 (18.5 mills on each dollar) of assessed value.
Mobile County Commission Res. Agenda #15 (1998) (emphasis added).Section 4. Proposed Increase Subject to Approval of Legislature and Electorate . The proposed increase in the rate at which the Special School District Tax may be levied and collected pursuant to this Resolution and Order is subject to (a) the approval of the Legislature to be evidenced by an act thereof, and (b) the approval of a majority of the qualified electors residing in the Mobile School Tax District who vote on the proposed increase at a special election called and held for such purpose pursuant to the provisions of subsection (f) of Amendment No. 373 [of the Alabama Constitution].
This resolution was introduced as House Bill 664. A recitation of the entire bill is not necessary. The pertinent language of the bill is quoted here:
H.B. 664 (Ala. 1998) (emphasis added).Section 2. Pursuant to subsection (f) of the Amendment No. 373 and a resolution heretofore adopted by the commission after a public hearing, the commission is hereby authorized to increase the rate at which the county is authorized to levy and collect the Special School District Tax to a maximum rate, for any tax year, which is equal to $1.85 on each $100.00 (18.5 mills on each dollar) of assessed value, which is an increase of $1.50 on each $100.00 (15 mills on each dollar) of assessed value from the present rate of $.35 on each $100.00 (3.5 mills on each dollar) of assessed value.
From a reading of the resolution and the subsequent House Bill 664, it appears the intention of the Mobile County Commission was to increase an existing ad valorem tax, namely the Special School District Tax authorized by Amendment No. 3 to the Constitution of Alabama. This tax may be used for general education purposes.
The analysis now must turn to the final act passed by the legislature. It reads in pertinent part:
Section 1. The county commission, or other governing body by whatever name called, of Mobile County is authorized and shall have power to levy and collect a special property tax in addition to all other taxes now or hereafter authorized by the Constitution of Alabama of 1901 and the laws of the State of Alabama, of one percent (1%), being 10 mills on each dollar, on the value of the taxable property in the county, as such property was assessed for taxation during the preceding year. The proceeds of such tax shall be used exclusively for the following purposes: (1) For payment of the costs of capital improvements, as provided below, or for the payment of principal and interest on debt obligations incurred for the purpose of financing such capital improvements; (2) for the payment of the costs of maintenance and renovation of buildings; and (3) for the payment of the costs of school-based operations, excluding central office expenditures. Capital improvements financed from the proceeds of the tax herein authorized must be included in the capital improvement program approved from time to time by the Board of School Commissioners of Mobile County or any successor governing body or bodies of public schools within the county. . . .
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1998 Ala. Acts No. 98-605 (emphasis added).Section 2. The increase in the rate at which the tax may be levied and collected pursuant to this act is subject to the approval of a majority of the qualified electors residing in Mobile County who vote on the proposed increase at a special election called and held for such purpose pursuant to the provisions of subsection (f) of Amendment No. 373 on the first Tuesday of May 1999.
Amendment No. 373(f) to the Constitution of Alabama states the following:
ALA. CONST. amend. 373(f).On or after October 1, 1979, any county, municipality or other taxing authority may at any time increase the rate at which any ad valorem tax is levied above the limit otherwise provided in this Constitution; provided, that the proposed increase to be made pursuant to this subsection shall have been (1) proposed by the governing body of the taxing authority after a public hearing on such proposal, (2) thereafter approved by an act of the legislature, and (3) subsequently approved by a majority vote of the qualified electors residing in the taxing authority who vote on the proposal at a special election called and held in accordance with the law governing special elections. Any adjustments or other actions authorized to be made or taken pursuant to this subsection and subsection (e) hereof shall be made or taken by resolution of the governing body of such taxing authority, or if there is no such governing body and in the case of a taxing authority other than a municipality, by resolution of the governing body of the county in which such taxing authority is located acting on behalf of such taxing authority. The provisions of subsections (c), (e) and (f) of this section shall not apply to ad valorem taxes levied by the state.
To restate, your question asks if Act 98-605 authorizes a new tax rather than an increase in an existing one, thus violating the provisions of Amendment No. 373(f) to the Constitution of Alabama. It is the opinion of this Office that an existing tax was increased by the Act, thus complying with the requirements of Amendment No. 373(f).
Amendment No. 373(f) to the Constitution of Alabama sets out the requirements necessary to "increase the rate at which any ad valorem tax is levied above the limit otherwise provided in this Constitution." ALA. CONST. amend. 373(f). Act 98-605 states in Section 1, "Mobile County is authorized and shall have power to levy and collect a special property tax, in addition to all other taxes now or hereafter authorized by the Constitution of Alabama of 1901 and the laws of the State of Alabama. . . ." In Section 2 the Act states, "The increase in the rate at which the tax may be levied and collected pursuant to this act. . . ." 1998 Ala. Acts No. 98-605.
It might appear that sections 1 and 2 of Act 98-605 are at odds, but the facts and circumstances leading to its passage indicate that such is not the case; section 1 enacts a property tax, and section 2 makes it clear that tax is an increase in the rate of an already existing tax.
Based on this analysis, this Office can only interpret that Act 98-605 was passed in compliance with subsection (f) of Amendment No. 373 to the Constitution of Alabama.
Based on the foregoing, Act 98-605 complies with the requirements of subsection (f) of Amendment No. 373 to the Constitution of Alabama.
If the answer to the preceding question is "yes," what are the duties and responsibilities of the Mobile County Commission regarding the special election to be held on the first Tuesday of May 1999 pursuant to section 2 of the Act?
Because our answer to your Question 1 is "no," this question need not be considered.
If the answer to Question 1 is "no," would any additional 10 mills of ad valorem tax levied pursuant to the Act be a new special ad valorem tax, or would it be an increase of one of the existing ad valorem taxes now levied by either the Mobile County Commission or the School Board?
Based on the analysis of Question 1, any additional 10 mills of ad valorem tax levied pursuant to the Act would be an increase of one of the existing ad valorem taxes now levied.
If the answer to Question 3 is that a new special ad valorem tax would be created, would this be in violation of Article XI, section 211 and section 217 and Amendment Nos. 325 and 373 to the Alabama Constitution?
Based on our answer to Question 3, this question need not be answered.
If the answer to Question 3 is that an existing ad valorem tax would be increased, which of the various taxes levied by either the Mobile County Commission or the School Board would be increased?
Based upon information provided by you to this Office, the Mobile County Commission levies each year the following ad valorem taxes for the School Board in the county:
1. 3-1/2 mills. Pursuant to section 1 of Amendment 3 to the Alabama Constitution. This tax may be used for general educational purposes.
2. 3-1/2 mills. Pursuant to section 2 of Amendment 3 to the Alabama Constitution. This tax may be used for general educational purposes.
3. 2-1/2 mills. Pursuant to Amendment 16 to the Alabama Constitution. This tax may be used for general educational purposes.
4. 6 mills. Pursuant to Amendment 179 to the Alabama Constitution. This tax is restricted to capital outlay purposes.
The resolution passed by the Mobile County Commission proposes a rate increase to the "Special School District Tax." That same resolution defines the "Special School District Tax" as the "special ad valorem tax for public school purposes that is authorized in Section 2 of Amendment No. 3 to be levied and collected on taxable property in the Mobile School Tax District."
Section 2 of Amendment No. 3 to the Constitution of Alabama states:
ALA. CONST. amend. 3(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 2 of Amendment No. 3 to the Constitution of Alabama only calls for this special ad valorem tax to be used for "public school purposes." You state that the tax now levied and collected under section 2 of Amendment No. 3 is used for "general education purposes." Act 98-605 clearly calls for the increase to be used for educational purposes, but with certain restrictions. These restrictions are:
1998 Ala. Acts No. 98-605.(1) For payment of the costs of capital improvements, as provided below, or for the payment of principal and interest on debt obligations incurred for the purpose of financing such capital improvements; (2) for the payment of the costs of maintenance and renovation of buildings; and (3) for the payment of the costs of school-based operations, excluding central office expenditures.
The Act further states the capital improvements to be financed from the tax increases must be authorized under a capital improvement program approved from time to time by the Board of School Commissioners of Mobile County.
This Office is of the opinion that the restrictions placed on the 10-mill increase do not alter the fact that the additional revenue will be used for "general education purposes." Section 2 of Amendment No. 3 to the Constitution of Alabama does not contain language that would disallow restrictions deemed fit by the Legislature. It is a generally accepted rule of statutory construction that the courts will not apply language to a statute to an event for which no provision was made. Pace v. Armstrong World Industries, Inc. , 578 So. 2d 281 (Ala. 1991).
The property tax now levied and collected by the Mobile County Commission under section 2 of Amendment No. 3 to the Constitution of Alabama would be increased.
If the Act authorizes the increase of an existing ad valorem tax, do the specific limitations on the use of the tax proceeds contained in the Act conflict with the general education purposes described in the various constitutional provisions and amendments authorizing existing ad valorem taxes for school purposes?
Based on the facts and analysis to Question 5, it is the opinion of this Office that the specific limitations on the use of the tax proceeds contained in Act 98-605 do not conflict with the general education purposes described in the various constitutional provisions and amendments authorizing existing ad valorem taxes for school purposes.
The specific limitations on the use of the tax proceeds contained in Act 98-605 do not conflict with the general education purposes described in the various constitutional provisions and amendments authorizing existing ad valorem taxes for school purposes.
Subsection (f) of Amendment No. 373 to the Alabama Constitution provides that the proposed increase by the governing body be "thereafter approved by an act of the legislature." Act 98-605 varies in significant respects from the increase proposed by the governing body in its resolution. Do these changes made by the Legislature cause the Act to fail to meet the requirement of Amendment No. 373 to the Alabama Constitution that the increase proposed by the governing body be "thereafter approved by an act of the legislature?"
The resolution passed on February 9, 1998, by the Mobile County Commission proposes a 15-mill increase in the rate of the tax which, according to section 2 of Amendment No. 3 to the Constitution of Alabama, is to be used for "public school purposes." Act 98-605 authorizes a 10-mill increase and places limitations on the use of the tax. These further limitations do not alter the use to be beyond "public school purposes." Thus, in the opinion of this Office, the intent of the resolution, i.e., increasing revenue for educational purposes, is not improperly changed.
Accordingly, the changes made by the Legislature do not cause Act 98-605 to fail to meet the requirement of Amendment No. 373(f) to the Constitution of Alabama that the increase proposed by the governing body be "thereafter approved by an act of the legislature." While we find no cases directly on point on this question, it is analogous to a variance between a proposed local law as advertised and the bill that passes, under section 106 of the Alabama Constitution, as amended by Amendment 341. The Legislature may shape the details of the proposed legislation as it passes through the legislative process, so long as the changes do not materially alter the substance of the proposed legislation. Birmingham-Jefferson Civic Center Authority v. Braswell , 407 So. 2d 115 (Ala. 1981).
It is the opinion of this Office that the changes made by the Legislature do not cause Act 98-605 to fail to meet the requirement of Amendment No. 373(f) to the Constitution of Alabama that the increase proposed by the governing body be "thereafter approved by an act of the legislature."
Do the amendments to House Bill 664 alter the original purpose of the bill in violation of Article IX, Section 61 to the Alabama Constitution?
Ordinarily, this Office does not answer questions regarding the constitutionality of acts of the Legislature because acts are presumed to be constitutional until a court of competent jurisdiction rules otherwise. The facts and circumstances surrounding the proposed legislation and the act, as passed, support this presumption.
Section 61 of the Constitution of Alabama states, "No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose." ALA. CONST. art. IV, § 61.
A recitation of the various changes will not be undertaken for this analysis. In short, House Bill 664 mirrored the resolution adopted by the Mobile County Commission. House Bill 664 called for a 15-mill increase of the property tax levied and collected by the Mobile County Commission pursuant to section 2 of Amendment No. 3 to the Constitution of Alabama. The bill, which became Act 98-605 through the legislative process, ultimately reduced the millage increase from 15 to 10 mills and placed restrictions on the increased revenue as discussed earlier.
In reference to section 61 of the Constitution of Alabama, it has been decided by the court that the original purpose of a bill within the meaning of this section is its general purpose, not mere details through which its purpose is effectuated. In re Opinion of the Justices , 41 So. 2d 761 (Ala. 1949). State Docks Commission v. State , 150 So. 537 (Ala. 1933). The general purpose of House Bill 664 was to increase revenue for public education purposes in Mobile County. The general purpose of the bill was not so altered by the amendments so as to frustrate this intent.
Based on the foregoing, it is the opinion of this office that Act 98-605 should be considered to be constitutional.
Does the amendment of House Bill 664 represent a material variance from the bill as advertised in violation of Article IX, Section 106 of the Alabama Constitution?
Ordinarily, this Office does not answer questions regarding the constitutionality of acts of the Legislature because acts are presumed to be constitutional until a court of competent jurisdiction rules otherwise. The facts and circumstances surrounding the proposed legislation and the act, as passed, support this presumption.
Section 106 of the Constitution of Alabama was amended by Amendment No. 341 to the Constitution. It states:
Article 4, section 106 of the Constitution of Alabama is hereby amended to read as follows.
Section 106. No special, private, or local law shall be passed on any subject not enumerated in Section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the state, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties or if no newspaper published therein, then by posting the said notice for two consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof that said notice has been given shall be exhibited to each house of the legislature through a certification by the clerk of the house or secretary of the senate that notice and proof was attached to the subject local legislation and the notice and proof shall be attached to the original copy of the subject bill and shall be filed in the department of archives and history where it shall constitute a public record. The courts shall pronounce void every special, private, or local law that the journals do not affirmatively show was passed in accordance with the provisions of this section.
ALA. CONST. amend. 341.This amendment shall be self-executing, and no enabling legislation shall be necessary.
In Jefferson County v. Braswell , 407 So. 2d 115 (1981), the Supreme Court of Alabama ruled that the purpose of section 106 of the Constitution of Alabama is to prevent deception of those immediately affected by the local legislation to the end that they may have an opportunity to protest against the proposed enactment. Furthermore, as to matters of form and detail not affecting the spirit and purpose of the Constitution, a liberal interpretation will be indulged to uphold rather than strike down an act. Gray v. Johnson , 179 So. 221 (Ala. 1938).
To satisfy the requirements of section 106, the notice must serve three purposes. The first is to inform the persons affected by the passage of the local law. The second is to prevent any deception of people immediately affected. Lastly, the notice must prevent the local community from being misled as to the proposed law's purpose. Deputy Sheriffs Law Enforcement Association v. Mobile County , 590 So. 2d 239 (Ala. 1991).
With these decisions in mind, and assuming that notice was properly given as you have stated, this Office cannot find that section 106 of the Constitution of Alabama was violated by the amendments to House Bill 664. The original purpose of the resolution and the bill to increase revenue for public schools was not changed by the amendments finally passed as Act 98-605. The Legislature is free to work out the specific details of a bill, so long as the original scope and original purpose of the bill are not altered. Blackwell v. State , 162 So. 312 (Ala. 1935).
Based on the foregoing, it is the opinion of this Office that Act No. 98-605 should be considered to be constitutional.
I hope this opinion answers your questions. If this office can be of further assistance, please contact Keith Maddox at the Department of Revenue Legal Division.
Sincerely,
BILL PRYOR
Attorney General
By: CAROL JEAN SMITH
Chief, Opinions Division
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