Opinion
8 Div. 332.
April 22, 1921.
Appeal from Circuit Court, Marshall County; W. W. Harralson, Judge.
Street Bradford, of Albertville, for appellant.
The resolution was not published as required. Section 1258, Code 1907. A valid levy is necessary to a valid assessment. 37 Cyc. 970. The resolution is an ordinance, call it by whatever name you will. 89 Ala. 481, 7 So. 901; 37 Cyc. 964; 67 S.C. 324, 45 S.E. 821; 118 Mich. 595, 77 N.W. 450, 44 L.R.A. 164. Therefore it must have been published. 28 Cyc. 348; McQuillan, § 6. Although not a permanent ordinance, it was a general ordinance. 66 Ala. 543; 111 Ala. 369, 19 So. 735; 36 Cyc. 985 et seq. The assessment for the tax year 1914 must be based on state and county assessments for the year 1913. Sections 216 and 1311, Code 1907. The assessment was not made by the officers designated by the law. 196 Ala. 642, 72 So. 258; 37 Cyc. 982, et seq. The assessment covers subjects not taxable at the time it was made. Acts 1915, p. 386; section 2082, Code 1907; 37 Cyc. 988.
Orr Killcrease, of Albertville, for appellee.
The provisions of section 1258, Code 1907, are without application here, since the levy was made under the authority of section 1311, Code 1907. 6 N.D. 56, 69 N.W. 5; 112 Ill. 113, 1 N.E. 474; 174 Ill. 439, 51 N.E. 598; 185 Ala. 490, 64 So. 301. Escapes are reached under the provisions of section 1327, Code 1907, and are to be made by the council itself.
The resolution of the town council was but the fixation or levy of the municipal tax, as authorized by section 1311 of the Code of 1907. This statute provides the method and basis for the assessment of the tax, and requires notice by publication of the assessment after being made, and gives interested parties the right to appear and contest the same. We do not think that the resolution or order of November 3, 1914, page 17 of the record, is such an ordinance or regulation as is required to be published under the terms of section 1258 of the Code of 1907 as amended by Acts 1911, p. 632. Said section 1258, as amended, does not apply to tax levies and assessments as dealt with in a separate and distinct chapter of the Code, as section 1311 provides for the publication of a notice that the assessment had been made, and for the hearing of all objections thereto, and the lawmakers did not contemplate that the general levy was also to be published. It also appears that this assessment was published, and that the appellant appeared and contested same.
The levy fixes a rate of one-half of one per centum "upon all property, real, personal and mixed located or taxable in the town of Albertville, for the year 1914." This, of course, means that the property taxable in the town for the year 1914 was such property as had been assessed by the state for the previous year, as required by the Constitution and statutes. The levy could have, of course, been more specific, but we cannot say that it is void and should be quashed.
It is next urged that the assessment was not made by an officer authorized by law; that it was made by the town council instead of the clerk or other person designated by the council. In the first place, the assessment was for escaped tax, and was made under section 1327 of the Code, and which provides that at any time within five years after the property has escaped taxation "the council or board of assessors shall have the right to make assessments against such property for such escaped taxes." On the other hand, we do not mean to hold that if dealing with an original assessment under section 1311 of the Code, instead of escapes under section 1327, that the assessment by council rather than a designated agency would render the same void. Section 1311 authorizes the town council to designate the clerk or other persons to make the assessment, and it could evidently do what it could authorize, and the fact that it performed this duty, instead of delegating the same to a subordinate, did not render the same invalid.
Neither sections 1311 or 1327 provide as to the contents of the assessment, for the reason, no doubt, that it is to be based upon the state assessment for the previous year, and the action of the council discloses the amount of personal property, and the kind and character of same as assessed by the state for the tax year preceding 1914; that notice was given by publication as to the assessment in question and the appearance of appellant by counsel, who objected to and contested said assessment.
There is no merit in the contention that the assessment is void because it contains property not taxable at the time the assessment was made, for the reason that the law providing for taxing solvent credits and money loaned was repealed by the act of 1915 (Sess. Laws, p. 107), and this assessment was made thereafter. True, the assessment was made after the act of 1915, but it was for escaped tax, which should have been assessed and paid under the law as it existed prior to the act of 1915, and which said act in no wise relieved the appellant's property from liability therefor.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.