January 11, 2019 As modified on denial of rehearing by
substitution of page 35.
from Chilton Circuit Court (CV-16-900112)
Burnett appeals from an order of the Chilton Circuit Court
granting a motion for a judgment on the pleadings filed by
the defendants, Chilton County and the Chilton County Health
Care Authority (hereinafter referred to collectively as
"the Chilton defendants"), in his action seeking a
judgment declaring that Act No. 2014-422, Ala. Acts 2014,
violates the Alabama Constitution and requesting an
injunction against enforcement of that act. We reverse the
judgment of the trial court.
January 21, 2014, House Bill 331 ("H.B. 331") was
introduced in the Alabama House of Representatives. The
stated purpose of H.B. 331 was
"to authorize the [Chilton] county commission to levy an
additional one cent sales tax which shall be used exclusively
for the construction, maintenance, and operation of a
hospital in Chilton County; to provide for an expiration date
for the tax; and to provide for a referendum and subsequent
H.B. 331 was subsequently approved by both the House of
Representatives and the Alabama Senate. Then Governor Robert
Bentley signed the bill on March 13, 2014, and it was
designated Act No. 2014-162.
February 16, February 23, March 2, and March 9, 2014, notices
had been placed in the Clanton Advertiser containing the full
text of a second bill, which was introduced in the Senate as
Senate Bill 462 ("S.B. 462"). The stated purpose of
S.B. 462 was
"to levy additional sales and use taxes to be used for
the construction, maintenance, and operation of hospital
facilities in Chilton County; to provide for certain matters
relating to the administration, collection, and enforcement
of such taxes; to provide for the effective date and
termination of such taxes; to provide for an advisory
referendum regarding the levy of the taxes; to provide that
such taxes may not be abated pursuant to Chapter 9B, Title
40, Code of Alabama 1975, or otherwise; and to authorize the
pledge of such taxes by Chilton County or a public
corporation acting as its agent to secure indebtedness issued
for the purposes for which the taxes are authorized."
S.B. 462 was approved by the House of Representatives and the
Senate, and it was forwarded to Governor Bentley. Governor
Bentley declined to sign the bill. Instead, on April 1, 2014,
he sent the legislature a letter, which stated, in part:
"I received Senate Bill No. 462 and, at the request of
the bill sponsor, believe the bill should be amended to
repeal a duplicative Act, passed earlier this legislative
"For these reasons, I am returning to you, the body in
which it originated, Senate Bill No. 462 without my signature
and with the below Executive Amendment for your
executive amendment proposed inserting as "Section
14" of S.B. 462 the following: "Section 14. Act No.
2014-162 is hereby repealed." The amendment proposed
renumbering the remaining sections accordingly.
April 2, 2014, the House of Representatives and the Senate
adopted the executive amendment, approving an amended version
of S.B. 462 that contained the new Section 14. Governor
Bentley signed the bill on April 10, 2014, and it was
designated Act No. 2014-422. It is undisputed that no notice
of Act No. 2014-422 as amended by the addition of the new
Section 14 -- the repealer provision -- was ever published to
the people of Chilton County.
3, 2014, an advisory referendum was held in Chilton County in
accordance with Section 7 of Act No. 2014-422, which asked
"whether or not the qualified electors of the county
support or oppose the [Chilton County Commission's]
levying the additional sales and use taxes authorized in [Act
No. 2014-422]." The votes in favor of supporting the
taxes numbered 7, 853; the votes in opposition numbered 2,
4, 2014, the Chilton County Commission ("the
Commission") held a special meeting in which it voted
unanimously to approve a resolution to levy the $0.01 sales
tax authorized by Act No. 2014-422 "to be used for the
construction, maintenance, and operation of hospital
facilities in Chilton County, as well as for all other uses
and purposes authorized in [Act No. 2014-422]." The
resolution set August 1, 2014, as the effective date to begin
collecting the taxes.
August 26, 2014, the Commission amended the resolution it had
adopted on June 4, 2014, levying new taxes under the
authority of Act No. 2014-422, including a "privilege or
license tax" on businesses in Chilton County and
"excise taxes on storage, use or other consumption of
property in the County." The amended resolution
reiterated that "[t]he proceeds of the taxes levied ...
shall be used only for the purpose of providing funds to pay
the costs of construction, maintenance, and operation of
hospital facilities in [Chilton] County." In the amended
resolution, the Commission designated the Chilton County
Health Care Authority as the entity that would oversee the
construction, maintenance, and operation of new hospital
9, 2016, Burnett, a resident of and taxpayer in Chilton
County, filed a complaint on behalf of himself and a putative
class of "all persons and/or entities that have paid or
are subject to the sales and use tax levied by [the
Commission] pursuant to Alabama Act [No.] 2014-422 from
August 1, 2014, to the present" against the Chilton
defendants in Chilton Circuit Court. Burnett sought a
judgment declaring that Act No. 2014-422 violated Art. IV,
§§ 70 and 71.01(C), Ala. Const. 1901, and he sought
an injunction against the collection of the taxes levied
pursuant to Act No. 2014-422. Burnett filed a notice of his
constitutional challenge with the Alabama Attorney General
pursuant to § 6-6-227, Ala. Code 1975. Burnett
subsequently amended the complaint to add claims that Act No.
2014-422 violated Art. IV, § 106, Ala. Const. 1901, and
Art. IV, § 107, Ala. Const. 1901.
29, 2016, the Chilton Health Care Authority filed a motion to
dismiss Burnett's amended complaint. Subsequently,
however, the Chilton defendants filed a motion to stay the
action pending a ruling from this Court in Jefferson
County v. Taxpayers & Citizens of Jefferson County,
232 So.3d 845, 848 (Ala. 2017), because of similar arguments
in that case concerning alleged violations of Art. IV, §
71.01(C), Ala. Const. 1901.
March 17, 2017, this Court issued its opinion in
Jefferson County in which it concluded that
constitutional deficiencies in a legislative act signed into
law on May 27, 2015, created by Art. IV, § 71.01(C),
were cured by Art. IV, § 71.01(G), which was added by a
constitutional amendment adopted in November 2016. The stay
in this case was lifted, and the Chilton defendants argued
that Burnett's claims relying on Art. IV, §
71.01(C), were due to be dismissed. Burnett agreed, and
accordingly, on April 26, 2017, the count of Burnett's
second amendment to the complaint alleging a violation of
§ 71.01(C) was dismissed.
Chilton Health Care Authority then renewed its motion to
dismiss the action. Both Chilton County and Burnett filed
motions for a judgment on the pleadings. The trial court held
a hearing on those motions on June 19, 2017.
19, 2017, the trial court entered an order granting the
motion for a judgment on the pleadings in favor of the
Chilton defendants. The trial court first addressed
Burnett's contention that Act No. 2014-422 violated Art.
IV, § 70, Ala. Const. 1901, because S.B. 462 was a bill
to "rais[e] revenue" and it did not originate in
the House of Representatives:
"Since Article IV, Sec. 70, of the Alabama Constitution
does not apply to bills that do not in and of themselves levy
a tax, but authorize a county commission to do so in the
future, the first claim fails and judgment is rendered in
favor of [Chilton] Defendants on that claim."
the trial court addressed Burnett's contentions that Act
No. 2014-422 violated Art. IV, §§ 106 and 107,
because public notice associated with it failed to include
the repealer provision that stated that Act No. 2014-422
repealed Act No. 2014-162.
"When Act [No.] 2014-422 was advertised, it covered the
whole subject matter that had previously been contained in
Act [No.] 2014-162. It specifically rewrote the provisions of
Act [No.] 2014-162 and enacted provisions directly in
conflict with it. Although, not declared by a Court prior to
the passage of Act [No.] 2014-422, it is undisputed that Act
[No.] 2014-162 was unconstitutional on its face. An
unconstitutional Act is void.
"When an Act covers the whole subject matter of the
former Act, rewrites the entire law of the subject, and
enacts provisions directly in conflict with the former
touching the same matter, the later provisions, if valid,
must of necessity, repeal the former. Fidelity &
Deposit Co. of Maryland v. Farmers' Hardware Co. et
al., 223 Ala. 477, 136 So. 824');">136 So. 824(1931).
"That being the case here, Sec. 14 of Act [No.] 2014-422
(the repealer provision) was not necessary and is hereby
stricken and severed from the Act as mere surplusage.
"Accordingly, the Court finds Act [No.] 2014-422, with
the deletion of Sec. 14, valid and entitled to its full force
the order addressed all of Burnett's remaining claims, it
constituted a final judgment, and Burnett filed a timely
Standard of Review
review of constitutional challenges to legislative enactments
is de novo. See Jefferson County v. Richards, 805
So.2d 690 (Ala. 2001)." Richards v. Izzi, 819
So.2d 25, 29 n.3 (Ala. 2001). See also Scott Bridge Co.
v. Wright, 883 So.2d 1221, 1223 (Ala. 2003) ("This
Court reviews de novo a trial court's interpretation of a
statute, because only a question of law is presented.").
Whether Act No. 2014-422 Violates Art. IV, § 70, Ala.
argues that the trial court erred in concluding that Act No.
2014-422 did not violate the requirement of § 70 that
"[a]ll bills for raising revenue shall originate in the
house of representatives." Burnett contends that the
trial court "manufacture[d] a distinction without a
difference between the levy and imposition
of a tax." Burnett's appellate brief, p. 21.
Houston County v. Covington, 233 Ala. 606, 607, 172
So. 882, 882 (1937), this Court addressed a constitutional
challenge to a local act that "authorized the Board of
Revenue of Houston County, Alabama, to impose an excise tax
of one cent per gallon on all gasoline or other motor fuels
sold or delivered in Houston County." 233 Ala. at 607,
172 So. at 882. Concerning the plaintiff's contention
that the act violated § 70 because it had originated in
the Alabama Senate, this Court explained:
"The act was not for the raising of revenue within the
requirements of section 70 of the Constitution. It merely
dealt with municipal power to enact an ordinance dealing with
the conduct of the business of selling and delivering
'gasoline, naptha, and other liquid motor fuels or any
device or substitute therefor, commonly used in internal
combustion engines,' the proceeds therefrom to be used by
the county 'exclusively for the purpose of constructing
and maintaining public roads, streets, bridges and
ferries,' etc., as required by the act. Local Acts Extra
Session 1936, pp. 97, 98; In re Opinions of the
Justices, 223 Ala. 369, 136 So. 589');">136 So. 589 [(1931)];
Kennamer v. State, 150 Ala. 74, 43 So. 482');">43 So. 482
233 Ala. at 609, 172 So. at 884.
in Yancey & Yancey Construction Co. v. DeKalb
County Commission, 361 So.2d 4 (Ala. 1978), this
Court addressed, among other issues, whether a local act that
"permit[ted] the County Commission of DeKalb County to
levy a tax on the privilege of severing coal in DeKalb
County" violated § 70. 361 So.2d at 4.
"[The plaintiff] contends that [local Act No. 667, Acts
of Alabama 1976], which originated in the Senate, is
repugnant to the constitutional requirements that 'All
bills for raising revenue shall originate in the house of
representatives. ...' Article IV, Section 70,
Constitution 1901. This court has held that that provision of
the Constitution refers to bills which levy a tax as a means
of collecting revenue. Opinion of the Justices, 259
Ala. 514, 66 So.2d 921 (1953). Act No. 667 does not levy a
tax; it merely ...