Petition of W. S. Brewbaker, Inc., for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in W. S. Brewbaker, Inc. v. City of Montgomery,119 So.2d 886.
Affirmed in part, reversed in part and remanded.
Count 5 of the complaint is as follows:
"5. The Plaintiff claims of the Defendants the sum of $191.25 due from the Defendants for money paid as taxes to the Defendant J. M. Hobbie on October 16, 1951, which sum of money with interest thereon is due and unpaid. And the Plaintiff avers that, prior to the bringing of this action, it filed written claim with the Defendant City of Montgomery, on October 14, 1953, for refund of said payment of money for taxes. And the Plaintiff avers that it owned property within the city limits of the City of Montgomery during the tax years October 1, 1949-September 30, 1950 and October 1, 1950-September 30, 1951; that its said property was assessed for State and County taxation for and during the said tax years, and said State and County taxes were paid by the Plaintiff to *Page 462 the said Tax Collector; that at the same time that said State and County taxes were paid to the said Tax Collector for the tax year 1950-1951, the Plaintiff was presented a bill or statement by said Tax Collector showing the amount of $870 allegedly due and owing by the Plaintiff to the City of Montgomery for taxes for the tax year ending September 30, 1951; that the Plaintiff paid said amount of $870 to said Tax Collector on October 16, 1951; that said amount of $870 was computed by the Defendant David W. Crosland, Tax Assessor, based upon a valuation of $69,600 at a rate of $1.25 per hundred; that the Defendant David W. Crosland as Tax Assessor of the City of Montgomery, as well as the duly elected Tax Assessor of Montgomery County, did file with the Defendant J. M. Hobbie, the duly elected Tax Collector of Montgomery County, acting as Tax Collector for the City of Montgomery the said valuation of $69,600 as the valuation of the Plaintiff's property in the City of Montgomery for the tax year 1950-1951; that the valuation of $69,600 was in fact the value of said property as shown by the books of assessment for the state and county tax year ending September 30, 1951, whereas the value of said property as shown by the books of assessment for the state and county tax year ending September 30, 1950, was $54,300; that the only levy, or purported levy, of property taxes by the City of Montgomery for the tax year ending September 30, 1951 was made by Ordinance 28-50, promulgated May 19, 1950; that this levy, or purported levy, provided that the tax was levied on property situated in the City of Montgomery at the rate of one and one quarter per centum on 'the value of such property as assessed for state taxation as shown by the books of assessments for the state and county tax year ending the thirtieth day of September, 1950'; that the City of Montgomery must, under the Constitution of the State of Alabama, 'levy its taxes, based upon the valuation as fixed for state taxation for the current year', that is, the tax year within which the levy is made. City of Montgomery v. Graham, 255 Ala. 685,53 So.2d 363; that as correctly computed from the valuation provided in the levy, and the maximum valuation authorized by law, the Plaintiff owed taxes for the tax year ending September 30, 1951, in the amount of one and one quarter per centum of $54,300, or $678.75; that the excess amount of $191.25 included in the amount of $870 paid by the Plaintiff, upon demand, to the said Defendant J. M. Hobbie, as computed by the said Defendant David W. Crosland, to the use of the Defendant City of Montgomery, was not due and was an illegal exaction; that the Plaintiff paid the said amount of $191.25 to the said Tax Collector under mistake of law or fact under the mistaken belief that whatever tax levy, valuation, assessment and collection had been made by the Board of Commissioners of the City of Montgomery, the Defendant Tax Assessor and the Defendant Tax Collector was a lawful tax levy, valuation, assessment, and collection, duly made by the elected, qualified and acting officials of the City of Montgomery who were charged with the performance of said duties as a function of their offices, and the Plaintiff had every right to assume and did assume that such public officials had performed their public duties prior to the collecting of said amount so claimed to be due, and without any knowledge of the failure of such public officials to perform such public duties as required by law, and assuming that the said exaction of $191.25 for taxes was valid, the Plaintiff, upon his demand, paid the said amount of $191.25 to the Defendant J. M. Hobbie; that the Plaintiff paid the said amount of $870 to the said Tax Collector under mistake of fact, under the mistaken belief that this amount was the amount owed by it to the City of Montgomery for property taxes for the tax year ending September 30, 1951, as correctly computed under a valid tax levy, at a lawful rate applied to valuations authorized by law; and that the said payment of the excessive amount of $191.25 was made under mistake of law or fact upon an illegal tax assessment made under color of law, and was an erroneous payment *Page 463 which the Plaintiff is justly and equitably entitled to have refunded."
Petitioner filed suit against the City of Montgomery to recover taxes paid on October 16, 1951, allegedly under mistake of fact or law. Demurrers to the six counts of the complaint, as amended, were sustained and petitioner took a nonsuit with leave to appeal. The Court of Appeals affirmed the judgment of the Circuit Court.
Count 4 of the complaint was a common count in code form. The Court of Appeals held that the demurrer to that count was correctly sustained because of a misjoinder of the Tax Assessor with the City. This point was raised by ground 15 of the demurrer, which reads: "There is a misjoinder of parties defendant." This ground is too general and the court erred in sustaining the demurrer on this ground. Findlay v. Hardwick,230 Ala. 197, 160 So. 336; Inland Waterways Corporation v. Sloss Sheffield Steel Iron Co., 223 Ala. 397, 136 So. 849; Bright v. Wynn, 210 Ala. 194, 97 So. 689.
Moreover, the demurrer was joint and the count being good as to the City, the demurrer should have been overruled even though the Tax Assessor was improperly joined, where the Tax Assessor did not demur separately. Louisville Nashville Railroad Co. v. Lynne, 199 Ala. 631, 75 So. 14; 41 Am.Jur., Pleading, § 230, p. 454; 71 C.J.S. Pleading § 260, p. 509; Jones Alabama Practice Forms, Vol. 3, §§ 9780, 9785. The demurrer to Count 4 should have been overruled.
Counts 1 and 2 allege that there was no tax levy made by the City for the tax year 1950-51, nor any levy for the preceding year. It is elementary that there can be no tax due until there is a levy. State v. Board of Revenue Road Commissioners of Mobile County, 73 Ala. 65; 51 Am.Jur., Taxation, § 647. The demurrer to each of these counts should have been overruled.
Counts 3, 5 and 6 show on their face that they are based on the case of City of Montgomery v. Graham, 255 Ala. 685,53 So.2d 363, which case is referred to in each of the counts. Inasmuch as we feel that the holding in that case must be modified to the extent that it would not support Counts 3, 5 and 6, we hold that the demurrer to each of those counts was properly sustained.
The first clause of Sec. 216 of the Constitution of Alabama of 1901 reads:
"No city, town, village, or other municipal corporation, other than as provided *Page 464 in this article, shall levy or collect a higher rate of taxation in any one year on the property situated therein than one-half of one per centum of the value of such property as assessed for state taxation during the preceding year; * * *."
This clause is followed by several provisos; the pertinent part of the one relating to Montgomery reading "* * * and, provided further, that this section shall not apply to the city of Montgomery, which city shall have the right to levy and collect a tax of not exceeding one-half of one per centum per annum upon the value of the taxable property therein, as fixed for state taxation, for general purposes, * * *." A comparison of the two provisions reveals that cities under the first clause must base their levies upon the value "as assessed for state taxation during the preceding year," while the proviso relating to Montgomery is silent as to what year, requiring only that the tax be on the value "as fixed for state taxation." This means that the City of Montgomery had a latitude for selecting the basis of taxation not enjoyed by the municipalities operating under the first clause of Sec. 216. This first clause has the same meaning as the first clause of its predecessor, Article XI, Sec. 7, Constitution of Alabama of 1875. It was construed to be a limitation upon the exercise of the inherent power of the Legislature to tax, rather than a grant of the power to tax in Hare v. Kennerly, 83 Ala. 608, 3 So. 683, 685, where the court said:
"* * * We repeat, that these several clauses are not grants of the power to levy taxes, but limitations upon that taxing power which has always been inherent in the state, and vested in the legislative branch of the State government, which is the depositary of all authority on the subject. * * *"
Later, the Legislature provided for an "Optional Method Of Collecting Municipal Taxes," now codified in Tit. 37 as Article 2, §§ 698-732. It permits "any municipality" to use the state and county tax machinery for the collection of municipal taxes, provides for compensation of the tax assessor and collector, and provides a public service to the taxpayers of municipalities by permitting them to pay their full state, county and municipal property tax at one place at one time. Tit. 37, § 700, provides for the levying of taxes for municipalities adopting this optional method and also provides that the levy shall be continued for any year in which the city governing body shall fail to make a levy. It directs the municipality, during May of each year, to levy the tax for the next succeeding year on the value of the property as assessed for state taxation for the tax year ending September 30th, next succeeding the levy. We can find no conflict in this provision in § 700 with the constitutional provision in Sec. 216 relating to Montgomery.
It, therefore, follows that there is no constitutional prohibition in Sec. 216 to keep Montgomery from adopting the optional method of collecting municipal taxes (Tit. 37, §§ 698-732) anything in City of Montgomery v. Graham, 255 Ala. 685, 53 So.2d 363, to the contrary notwithstanding. The statements in that case that the City of Montgomery cannot levy its taxes pursuant to § 700, Tit. 37, Code 1940, and cannot levy taxes for the next succeeding year upon the state valuation for the then current year, are not to be followed since they were not necessary to a decision in that case.
It is argued that the proviso in Sec. 216 of the Constitution relating to Montgomery is mandatory and that Montgomery must levy city taxes based on a valuation for the current year and cannot levy taxes on a valuation for the preceding year. The Graham case does so indicate, but as already noted, these statements are not to be followed. We have previously shown that the provision in Sec. 216 does not prohibit Montgomery from using the valuation for the preceding year as a basis for the levy, but allows Montgomery a latitude in the choice of years of a basis for taxation. *Page 465 We cannot agree that Sec. 216 was intended to prohibit Montgomery from using any certain basis when it is entirely silent on the subject of what basis is to be used; and we do not think the Legislature intended to bar or prohibit Montgomery or any municipality so situated from using the optional method of collecting municipal taxes, Tit. 37, §§ 698-732. Such a holding would be chaotic to a settled, practically uniform and accepted plan for the assessment, collection and handling of municipal ad valorem taxation in Alabama.
The proceedings of the Constitutional Convention of 1901 show that of the seven members of the Convention from Montgomery County, only Mr. Sanford was in favor of the Amendments referred to in the minority opinion, and the Convention voted to table each of the Amendments offered by Mr. Sanford, thereby presumably rejecting his arguments and interpretations, Vol. 4, Official Proceedings, Constitutional Convention of 1901, pp. 4816, 4821, 4824, 4828, 4830.
The judgment of the Court of Appeals is affirmed in part, reversed in part and remanded.
LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur.
LIVINGSTON, C. J., and COLEMAN, J., dissent in part.