Alabama Attorney General Opinion 1979-0067

OFFICE OF THE ATTORNEY GENERAL 71- oop(07 *55 LEE L. HALE DEPUTY ATTORNEY GENERAL CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA MAY 1 6 1979 ADMINISTRATIVE BUILDING 64 NORTH UNION STREET MONTGOMERY. ALABAMA 34130 WILLIAM M. BEKURS, JR. EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSISTANT Honorable George A. Desmond, Chairman Bibb County Commission Room 15, Community Activity Building 103 Davidson Drive Centreville, Alabama 35042 (205) 832-5640 HERBERT I. BURSON, JR. B. FRANK LOEB PHILIP C. DAVIS RON BOWDEN JOHN J. BRECKENRIDGE WILLIAM L. THOMPSON Assistant Attorneys General Revenue Department Gasoline tax - Bibb County - Counties Counties have no right to levy any tax except such as is granted to them by the Legis- lature, but county governing body may levy tax where authorized by the Legislature. Opinion by Assistant Attorney General Breckenridge Dear Mr. Desmond: The resolution of the Bibb County Commission dated March 30, 1979, requesting an opinion from the Attorney General has been referred to my desk for reply. Basically your request was as follows: "Can the Bibb County Commission add a county gasoline tax by resolution, or must it be done by the Alabama Legislature through a local act or a constitutional amendment?" It is my opinion that no governing body of an Alabama county has an inherent power to levy a tax, but only has such power as may be granted by the Legislature. As far as can be determined this has always been the unanimous position of the various courts in Alabama. In the case of Moody v. Flowers, 256 F.Supp. 195, the federal district court ruled: "An Alabama county has no inherent power to tax; it can impose only such tax, on such subject, under such cir- cumstances, and within such rate as the State authorizes. In Alabama the countys' authority to tax is derived from -2- "the Legislature and may be withheld, withdrawn or modified." The decisions of the Alabama courts are in line with the decision of the federal court. The Alabama Supreme Court has on several occasions voiced the opinion that "counties have such power of taxation as is delegated to them by legislative authority." Mills v. Court of Commissioners of Conecuh County, 204 Ala. 40, 85 So. 564. "The right of a county to levy a tax is a bounty conferred by the State, and is only such as the State may deem expedient." State v. Butler, 225 Ala. 191, 142 So. 531. "The right of a county to levy a tax is conferred by the State and is only such as the State may deem expedient, and is not greater nor other than the State possessed." State Ex rel Tallapoosa County v. Butler, 227 Ala. 212, 149 So. 101. "The counties have no right to lay any tax except such is granted to them by the Legislature." Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516. "Counties have no inherent power of taxation." Jefferson County v. City of Birmingham, 248 Ala. 319, 27 So.2d 584. "A county has no power of taxation except such as is conferred by statute, to be exercised subject to the conditions and limitations prescribed." Sidney Spitzer and Company v. Monroe County, 274 F. 819. See generally, Alabama Digest, Counties, §190(1 ,,(2). Therefore, it is my opinion that the Bibb County Commission has no inherent power to levy a local gasoline tax without authority from the Alabama Legislature. However, it is my opinion that the Legislature has the power to delegate the authority to levy a tax to a county commission. The Constitution of Alabama provides: "The power to levy taxes shall not be delegated to individuals or private corporations or associations." Constitution of Alabama of 1901, §212. It has been held by the courts of Alabama that this section does not prohibit the Legislature from delegating to a local county governing body, which is a subdivision of the State, the authority to collect a tax for local purposes. Opinion of the Justices, 291 Ala. 262, 280 So.2d 97. In the case of The Standard Oil Company of Kentucky v. Limestone County, 220 Ala. 231, 124 So. 523, the question involved was the constitutionality of an act authorizing the county commissioners of Limestone County, Alabama, to levy a privilege tax on all persons selling or storing motor fuels in the county. The tax was for public road purposes. In upholding the act, the Supreme Court of Alabama stated: "We need merely mention what has been so often said, that the soveriegn power of the Legislature in the matter of privileges taxes is unabridged save in the matter of reasonable classification, uniformity in application to a class, and freedom from invasion of constitutional guaran- tees against confiscation or oppression. "Local road laws carrying provisions for levying and collecting privilege taxes under orders of the governing bodies of counties were well known prior to the Constitution of 1901. Like laws enacted since that time, • -3- "committing to the county authorities the power to make such levies and to make regulations looking to their collection, have been continuously enacted and sustained by this Court since Kennamer v. State, 150 Ala. 74, 43 So. 482. "If, in the judgment of the Legislature, local neeeds demand additional or supplemental laws substantially different from the general, law, the Legislature has the power to so enact." Thus it is my opinion that the Legislature of Alabama through a properly enacted local law may authorize the Bibb County Commission to collect an additional county gasoline tax. It is my opinion that such a local law, however, would have to meet the provisions of Constitution of Alabama of 1901, §106, which authorizes and provides the procedures whereby the Legislature may pass a local law. I hope I have fully answered the request contained in your resolution, and if I can be of any further service to you in this matter, please do not hesitate to contact me. Sincerely, CHARLES A. GRADDICK Attorney General