State v. Page , 19 Ala. App. 303 ( 1923 )

From the judgment in the circuit court fixing the assessment of taxable values in accordance with the contention of the taxpayer the state and county file the following:

"And now come the plaintiffs in said cause and separately and severally appeal to the Court of Appeals from the judgment of the court rendered in this cause on the 26th day of September, 1922."

This paper was signed: The State of Alabama and Coffee County, by Harwell G. Davis, Attorney General. No bond was given by either the state or the county in taking the appeal. Motion is now made by the appellee to strike Coffee county as a party appellant on the ground that it had not given bond or security for costs of appeal, as is required by section 2872 of the Code of 1907.

It is conceded that as to the state no such bond or security is required. Code 1907, § 2440. It has already been decided by the Supreme Court, in a suit of a similar character (State v. Donaldson [4 Div. 56] 96 So. 617¹), that this is in its nature civil suit, and in effect the suit was in the name of two a plaintiffs. It is also provided by section 108, Acts 1919, p. 319, that from the judgment in the circuit courts appeals may be taken by either party "as in civil cases." In civil cases appeals may be taken by the state without giving bond or security. The county, on the other hand, if it appeals, must give the security required by Code 1907, § 2872. State v. Earnest, 123 Ala. 631, 26 So. 948. While this is true where the county acts independently in its corporate capacity, a county is not an ordinary business corporation, but is a civil or political division of the state, with limited and defined powers, and as such is an agent or auxiliary in the administration of civil government. Dillon, Music. Cor. par. 10; Coms. Court v. Moore, 53 Ala. 25; Simpson v. Lauderdale Co., 56 Ala. 64. As a local governmental institution, it exists for the benefit of the people within its corporate limits and as a part of the state, and its acts and limitations are fixed by the Legislature. 7 R. C. L. p. 925. par. 4. So, in this proceeding the county does not act independently of the state, as in ordinary cases where it sues or is sued, in matters within its grant of powers. Neither is "a proceeding to fix and adjust the values of property for taxing purposes" a mere civil suit, although it partakes of the nature of a civil suit, as was held in State v. Donaldson, supra. It is a proceeding in rem, between the sovereign and the citizen, by and through which a fair and just proportion of the expenses of government may be assessed for payment and the liability of the citizen fixed. The proceeding may be said to be sui generis, governed, in so far as applicable, by the rules laid down for the trial of civil actions.

By section 138, Acts 1919, p. 319 the proceeding is instituted and prosecuted by the Attorney General; the style of the case is State of Alabama and Coffee County, Plaintiff (mark the singular), v. Page, section 102, Acts, supra, p. 316. Section 108 of the Acts, p. 317, provides for an appeal by the taxpayer to the circuit court which appeal takes both the state and county into the circuit court, and from a judgment in the circuit court it is provided that either party may appeal. During all the progress of the proceedings up to this period the county has been carried along as a necessary part of the prosecution, without any volition on its part. Its part in the proceedings is directed and prescribed by the Legislature as a necessary part of the adjusting process. Both the state and county have been designated in the singular number as the plaintiff, and we think the Legislature meant both the state and county conjuctively, when it provided an appeal by the party plaintiff from the judgment of the circuit court. In this proceeding the state and county are indivisible as party plaintiff; the state has entire control of the management of the proceedings, and, being entitled to appeal without security, such appeal carries the county with it. The motion to strike must be overruled.

This brings us to a consideration of the cause on its merits. The appellant contends that the circuit court erred in refusing to grant its motion to dismiss the appeal of appellee in that court on account of the insufficiency of appellee's appeal bond on appeal from the court of county commissioners. The insistence of appellant is that this bond, as required by section 108 of Acts 1919, p. 317, should have been without conditions; the theory being that in any event the taxpayer should pay the costs of appeal to the circuit court. In State v. Donaldson (4 Div. 56) 96 So. 617,¹ the law was held to be otherwise, and in this proceeding, under section 3662 of the Code of 1907, the successful party is entitled to full costs, for which judgment must be rendered. That being the case, the appeal bond given was in conformity with law and the motion to dismiss was properly overruled.

The other questions raised by the assignment of errors are decided and governed by the decision is State v. Donaldson, supra.

We find no error in the record, and the judgment is affirmed. It appearing that the county of Coffee has been brought to this court by and through the action of the state, and without volition on its part, it is ordered that the state of Alabama pay the costs incident to this appeal.

Affirmed.

¹ 209 Ala. 400.