Birmingham age-herald., 1895-01-23
THE 2O-CENT TAX.
Tho Legal Opinions of Two Leading Lawyers as to It's Con-
 stitutionality.

The mmercial club at a recent meeting appointed a committee to investigate the proposed 20-ceut school tax as to it's con- stitutional aspect. This committee re- quested the opinion of several lawyers, who very kindly looked up the authorities on the subject. These opinions agreed that the proposed tax was unconstitutional and the committee so reported to the club, but other lawyers and members of the club thought the tax was constitutional and another committee was appointed to fur ther investigate the question.
 To show the drift of the argument as to the unconstitulionality of the proposed tax the AGE HERALD prints the two fol- lowing opinions:
 FROM JUDGE HoUaHToN.
 BIRMINGHAM, Ala, Jan. 16, 1895. Sigfried Steiner, Esq. Chairman, Etc. City
 DEAR SIR: Your favor of the 18th in- stant received, asking my opinion of the power of the legislature to impose a tax on the taxable property of Birmingham ex- ceedng E of per cent per annum. The legislature has no power to pass any law in opposition to the plain and express pro- visions of the constitution. The language of the constitution as it appears on page A of the code is as follows: "No city, town or other municipal corporation, other than provided for in this article, shall levy or collect larger rate of taxation in any one year on the property thereof than h of per centum of the value of such property as assessed for state taxation during the preceding year, ' etc.
 Speaking or this provision our sU- preme court, in the case of ex parte Mont gomery in re Knox, GA Ala, 463, 466, says:
 .sIt is only necessary now to say that this section Is intended to define the ex- tent of direct municipal taxation on prop erty, guarding against arbitrary taxation according to kind or equality, without re- lxa k.~- cific taxes, which may be imposed on priv ileges. Burroughs on Taxation, 67; Dillon on Nun. Corp, sections 592-94.'
 And in Boyd vs. Selma, 96 Ala, 144-14S, the same court says: ''It is a principle uni versally declared and admitted that munich pal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred.'
 In view of the foregoing l am of the opinion that any attempt to levy greater tax rate on property thau that allowed by the express words of the constitution would be void. It is needless for me to say that my sympathies are with our exceedingly fine schools, which are doing and will do so much good, but as l understand it you wish only my legal opinion, which cheer fally give, though with regret that it can. ''' ' W. R. HiouoHroN.
 FROM MIR. sMYER.
 BIRMINGHAM, Jan. F, lS95.
 DEAR SIRs: The HO' Brien biiI,'' as understand it, authorizes ieyy o,la 2-mill tax by the state on property the city of Birmingham for public school imposes.
 In my opinion this tax wol be uncon- stltutionaI. As I understand he taxing power in this state is dvide0 into three classes: Ak
 1. A levy made by the gens kt assembly for state purposes. I
 2. A levy made by the coupxy officials for county purposes.
 8. A levy made by a municipal corpora tion for municipal purposes.
 rdo not think that the general assembly has any power to levy 0 tax which is not uniform tax all over the state.
 In my opinion all taxes levied by the state must be levied all over the state and for state purposes. The O. Bren bill calls for the levy of alocal tax by the state for local purposes; l think this unconstitu- tional.
 do not believe that the city can keep up it's public school fund except from the gen. eral revenues of the city.
 This might be done by making great many of the departments self-sustaiuing by means of "local assessments,' under the principles declared in "Kline's" case. Respectfully, B. J. SMYER.
 To MT. s. Steiner, Chairman.