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01/06/95 MELINDA STARLING MILLER AND KEITH E.

January 6, 1995

MELINDA STARLING MILLER AND KEITH E. JOHNSON
v.
MARSHALL COUNTY BOARD OF EDUCATION, ET AL.



Appeal from Marshall Circuit Court. (CV-91-346). Robert L. Hodges, TRIAL JUDGE.

Released for Publication April 1, 1995.

Shores, Maddox, Houston, Kennedy and Cook, JJ., concur.

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

This tax case presents the question whether Act No. 87-537, Ala. Acts 1987, violates Art. IV, § 105, of the Constitution of Alabama of 1901. The appellants claim that the subject of that local act is subsumed by § 40-12-4, Ala. Code 1975, a general act that specifically authorizes county commissions to levy a tax measured by gross receipts, parallel to the state sales and use tax, in order to provide for public education in the counties. Act No. 87-537 authorizes the Marshall County Commission to levy on gross receipts in a portion of Marshall County a tax parallel to the state sales and use tax, for the support of the Marshall County schools in areas not served by city school systems. Under the local act, the cities of Arab, Albertville, and Guntersville are not subject to the tax imposed by the Marshall County Commission pursuant to Act No. 87-537 because they are served by their own city school systems.

The plaintiff Melinda Starling Miller is a taxpayer of Marshall County required to pay the levy imposed under Act No. 87-537; she contends that it is an illegal levy. The plaintiff-intervenor Keith E. Johnson (doing business as Five Points Store), is a retailer against whom the commissioner of revenue of the State of Alabama, as agent for the Marshall County Commission, has levied an assessment; the commissioner of revenue levied it because Johnson neither collected the tax from customers nor paid it to the State for the period of assessment.

The named defendants are the Marshall County Board of Education, its five members, its superintendent of schools, and the commissioner of the State Department of Revenue.

The trial court entered a summary judgment in favor of the defendants, declaring Act No. 87-537 not to violate Ala. Const., Art. IV, § 105. We affirm.

Miller and Johnson appealed. They contend that § 40-12-4 is a general act that subsumes the subject matter of the local act and that the local act therefore violates § 105 of the constitution.

The standard of review for determining the constitutionality of a statute was stated in State Board of Health v. Greater Birmingham Ass'n of Home Builders, Inc., 384 So.2d 1058, 1061 (1980):

"Before turning to the constitutional issue posed in this case, it is appropriate to reiterate the fundamental proposition that validly enacted legislation is presumed to be constitutional. As we stated in Mobile Housing Board v. Cross, 285 Ala. 94, 97, 229 So.2d 485, 487 (1969):

"'Every presumption is in favor of the constitutionality of an act of the legislature and this court will not declare it invalid unless in its judgment, the act clearly and unmistakably comes within the inhibition of the constitution.'

"We will not invalidate a statute on constitutional grounds if by reasonable construction it can be given a field of operation within ...


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