BOSWELL v. HOWELL, 290 Ala. 228 (1973)

275 So.2d 658

Charles A. BOSWELL, Commissioner of the Department of Revenue of the State of Alabama, v. Charles E. HOWELL et al.

SC 137.Supreme Court of Alabama.
April 5, 1973.

Appeal from the Circuit Court, Mobile County, Hubert P. Robertson, J.

Page 229

William J. Baxley, Atty.Gen., and Willard W. Livingston, Counsel, Dept. of Revenue and Asst.Atty.Gen., for appellant.

McDermott Slepian, Mobile, for appellees.

A constitutional provision is self-executing when it can be given effect without the aid of legislation and there is nothing to indicate that legislation is contemplated in order to render it operative. 16 C.J.S. Con.Law § 48, p. 145; Black’s Law Dictionary, 1525 (4th Ed. 1951); Cleary v. Kincaid, 23 Idaho 789, 131 P. 1117; State ex rel. City of Fulton v. Smith, 355 Mo. 27, 194 S.W.2d 302; State v. Ala. Educational Foundation, 231 Ala. 11, 163 So. 527; McCall, et al. v. Automatic Voting Machine Corp., et al. 236 Ala. 10, 180 So. 695. Where a constitutional provision or amendment is self-executing, any legislative attempt to restrict its effect is a nullity and void. Opinion of the Justices, 252 Ala. 199, 47 So.2d 330; Opinion of the Justices, 287 Ala. 337, 251 So.2d 755; Ex parte Western Union Tel. Co., 200 Ala. 496, 70 So. 438. “Residential property” is defined as real property used for residential purposes and where people reside or dwell or in which they make their homes, as distinguished from real property used for commercial or business purposes, and the term includes residential rental apartment units and multi-family dwellings. Jernigan v. Capps, 187 Va. 73, 45 S.E.2d 886; Charlotte Consolidated Construction Co. v. Cobb, 195 N.C. 690, 143 S.E. 522; Shermer v. Haynes, 248 Ark. 255, 451 S.W.2d 445
(1970). The granting of a special privilege to a class arbitrarily selected from a large number of persons standing in the same relation to the privilege, without reasonable distinction or substantial difference, is a denial of equal protection of the law, and is unconstitutional as class legislation. 16A C.J.S. Constitutional Law § 489, p. 239; Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 165 So. 214; Pfeiffer Brewing Co. v. Bowles, Em.App., 146 F.2d 1006; Id. 324 U.S. 865, 65 S.Ct. 914, 89 L.Ed. 1421. The sub-classification and separation of real property for ad valorem tax purposes into residential rental apartment units and single-family dwellings occupied exclusively by the owner thereof is class legislation and violative of provisions of the Constitution of the State of Alabama and the Fourteenth Amendment to the Constitution of the United States. Kaufman v. West, et al., 133 Wn. 192, 233 P. 321; United States Cold Storage Corp. v. Stolinski, 168 Neb. 513, 97 N.W.2d 408; Boulevard Apts., Inc. v. Borough of Lodi, 110 N.J. Super. 406, 265 A.2d 838.

PER CURIAM.

No reason is asserted why the decree of the trial court should be reversed. It is, therefore, affirmed.

The foregoing opinion was prepared by THOMAS S. LAWSON, Supernumerary Associate Justice, and adopted by the Court as its opinion.

Affirmed.

HEFLIN, C. J., and MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.