Hamilton v. City of Birmingham , 237 Ala. 8 ( 1938 )

ANDERSON, C. J., GARDNER, BOULDIN and FOSTER, JJ., adhere to the decision in City of Opp v. Brogden et al., 236 Ala. 180,181 So. 752.

The appellants in brief state: "The substance of theinquiry in this case, and in each of said specific questions, is simply this: Are the respondents in the performance of their duties as Tax Collector and Probate Judge of Jefferson County respectively governed by the decision in the case of City of Opp v. Brogden et al., Ala.Sup., 181 So. 752,¹ or does Act 155 of the General Acts of Alabama, 1911 (1911 General Acts of Alabama, p. 130) take the complainants from within the effects of the decision in the City of Opp v. Brogden Case?" (Italics supplied.)

The appellee in brief observes: "As stated by counsel for appellants, the sole question involved in this appeal is whether the decision of the court in the case of the City of Opp v. Brogden, Ala.Sup., 181 So. 752,¹ controls the duties of the Tax Collector and the Probate Judge of Jefferson County in the collection of taxes due the municipality and in the sale and redemption of any lands sold to satisfy the tax liens or whether the duties of such Tax Collector and Probate Judge are controlled by the 1911 Acts?" General Acts 1911, p. 130.

It would seem that there is only one answer to the inquiry and that is, in the absence of the adoption of an ordinance by the City of Birmingham as provided in Section 201 of the Revenue Act of 1935, General Acts 1935, pp. 256, 348, the City of Birmingham and the officers mentioned in the Act of 1911 are governed by said Act in the "assessment levy and collection of municipal taxes" of said city.

The only city made a party in the City of Opp v. Brogden et al., supra, was the City of Opp and in so far as the Declaratory Judgment in the case is concerned, Opp is the only city affected thereby. The declaration of the opinion, however, is authoritative as to municipalities similarly situated.

The decree appealed from is modified as above indicated, and as modified is affirmed.

Modified and affirmed.

ANDERSON, C. J., GARDNER, BOULDIN, and FOSTER, JJ., concur.

THOMAS, BROWN, and KNIGHT, JJ., dissent as indicated in the following opinion by Justice BROWN.

¹ 236 Ala. 180.