I concur in the opinion of Judge Bradley. However, I do not believe this opinion can be reconciled with that ofGolden, supra. It is recognized that this Court has no authority to overrule or change a decision of the Supreme Court of this State. We cannot do so in this instance, even though we respectfully believe the holding in Golden that "a reasonable construction of the statute is to require the payment of taxes in order to perfect the appeal and the taxes should have been paid at the time of taking the appeal. * * *" is incorrect. *Page 7
If this Court holds in favor of appellant — State of Alabama on the authority of the Golden decision, I consider its effect to be that our decision could not likely be reviewed by certiorari by the Supreme Court. However, if we hold in accord with our conviction, that the trial court should be affirmed, we squarely present a question for review by certiorari — our holding is contrary to a decision of the Supreme Court. Thus, that Court is presented with an opportunity to review the decision of Golden.
I believe that the legislature did not intend in Title 51, Section 110, Code of Alabama 1940, to require that payment of taxes after protest of assessment, be a condition of perfecting an appeal to circuit court.
Section 110 clearly provides for the method of perfecting the appeal before there is any mention of payment of taxes or filing of supersedeas.
No appeal statute requires the filing of supersedeas for perfection of appeal. That is always the choice of the appellant. Supersedeas bond merely prevents collection or performance of a judgment by issuance of execution as required by appropriate statute.
If the legislature had intended the payment of assessment as a condition precedent to perfecting an appeal in Section 110, it could easily have said so. Instead it provided for taking the appeal and then stated "When an appeal is taken the taxpayer shall pay the taxes due as fixed for assessment for the preceding tax year before the same becomes delinquent, and upon failure to do so, the court upon motion ex mero motu mustdismiss the appeal, unless at the time of taking the appeal the taxpayer has executed a supersedeas bond * * *L." (Emphasis ours.)
It appears clear to me that the above quoted provisions of Section 110 means that the appeal has been perfected and is before the circuit court and will remain so until the taxes become delinquent — to-wit — after December 31 of the tax year — as provided by Title 51, Section 189. If the matter is not tried before January 1, nor the taxes, based on preceding years assessment paid before that date, then the appeal,previously perfected and fully before the court, will be dismissed on motion ex mero motu. How could an appeal be before the court for dismissal if conditions precedent to perfection had not been fulfilled?
Our interpretation is further supported by the proviso in the section that the appeal must be dismissed — "Unless at thetime of taking the appeal the taxpayer has executed a supersedeas bond." (Emphasis ours.) It appears obvious that the purpose of the legislature in enacting the last provisions of this statute was to insure that taxes would either be paid by the appellant, as by all other taxpayers — before becomingdelinquent, or that security be provided that they would be paid if judgment was rendered.
Any other interpretation would require an appealing taxpayer to pay taxes before they even became due. Such a requirement would place a greater burden upon an appealing taxpayer than upon others. This could be done, but we do not believe the legislature intended to do so. It would confuse the record keeping of the tax collector, who is not otherwise lawfully authorized to accept taxes before they become due. The tax collector was confused in this case and refused to accept the tender of taxes by appellant based on preceding year assessment.
I am committed to the belief that the legislature by using the word "When" in stating, "When an appeal is taken * * *" intended it to mean after. This interpretation is completely supported by the full reading of the statute.
I respectfully submit that the holding in State v. Golden requires reconsideration and clarification by the Supreme Court. Our decision in this case is the only immediate means available to this end.
I concur in the opinion. *Page 8