Hoover City Board of Education v. Jefferson County , 1998 Ala. LEXIS 322 ( 1998 )

LYONS, Justice

(dissenting).

The issue in this case is whether the 13.9-mill ad valorem tax levied by the Hoover City Board of Education (“Hoover’s tax”) falls within the definition of the phrase “the three-mill district school tax,” commonly known as “the three-mill tax,” appearing in §§ 40-4-2 and 40-5-4, Ala. Code 1975. Because I think the references in §§ 40-4-2 and 40-5-4 to “the three-mill tax” became terms of art describing taxes levied pursuant to Ala. Const, of 1901, Amend. 3, I respectfully dissent.

Amendment 3 was adopted in 1916. It provided county school districts with the “power to levy and collect a special district tax not exceeding thirty cents on each one hundred dollars worth of taxable property.” This tax became known as “the three-mill tax” and was referred to as such in The Revenue Act of 1935, Ala. Act 1935, Act No. 194, §§ 22 and 161, pp. 272 and 335; those sections of the Act later became §§ 40-4-2 and 40-5-4, Ala.Code 1975, through several statutory amendments, all of which referred to the Amendment-3 tax as “the three-mill county school tax and the three-mill district school tax.” In 1972, Amendment 325 was ratified, and it required counties and county school districts to increase the Amendment tax. In compliance with Amendment 325, Jefferson County raised its Amendment-3 tax to 4 mills.

When the 1975 Code of Alabama was compiled, its §§ 40-4-2 and 40-5^1 still referred to the Amendment-3 tax as “the three-mill county tax and the three-mill school district tax,” even though the Amendment-3 tax then being collected was greater than 3 mills, pursuant to an increase authorized by Amendment 325. Furthermore, the Legislature has not seen fit to amend §§ 40-4-2 and 40-5-4, even though Amendment 373 was ratified in 1978, allowing counties and county school districts to further raise the Amendmenh-3 tax. Because the Legislature has not amended §§ 40-4-2 and 40-5-4 and because it used the term “the three-mill district school tax” when it wrote the 1975 Code, although by that time the tax was actually more than 3 mills, I believe that the phrase has become a term of art used to describe the Amendment-3 tax as adopted in 1916. Accordingly, I believe that Hoover’s tax falls within the definition of the term “the three-mill district school tax” used in §§ 40-4-2 and 40-5-4, Ala. Code 1975, and that Jefferson County unlawfully withheld fees and commissions for the collection of Hoover’s tax.

HOOPER, C.J., and MADDOX and SEE, JJ., concur.