Opinion No. 2017-17

Opinion No. 2017-17

February 2, 2017

Summary:

Health Care Authorities ? County Commissions ? Ad Valorem Taxes ? Referendum Election ? Geneva County

The Geneva County Commission can increase the special tax levied for hospital facilities from 2.6 mills to four mills.? Whether the tax increase requires approval by a county-wide election or by a vote of the county commission depends upon the currently approved tax rate.

Dear Mr. Eldridge:

This opinion of the Attorney General is issued in response to your request on behalf of the Geneva County Commission.

QUESTION

Can the Geneva County Commission call and hold an election to increase the special tax used for the benefit of the Geneva County Health Authority, Inc., from 2.6 mills to four mills?

FACTS AND ANALYSIS

Your request states that the Geneva County Commission is authorized pursuant to section 215.02 of article XI of the Recompiled Constitution of Alabama to levy a special county tax not to exceed four mills of the assessed valuation of taxable property for the purpose of generally maintaining a county hospital.? Ala. Const. art. XI, ??215.02 (amend. 72).? You further state that the Geneva County Health Care Authority, Inc. (formerly known as the Geneva County Hospital Board) was formed to acquire, construct, equip, operate, and maintain the public hospital facility known as Wiregrass Hospital.? The special county tax used to fund the hospital is levied at a rate of 2.6 mills.? This Office understands that it is unknown whether the previous county election on this issue capped the rate at 2.6 mills or if the maximum of four mills was authorized and a lower rate implemented.

As a political subdivision of the state, a county can exercise only that authority conferred on it by law.? Jefferson County v. Johnson, 333 So. 2d 143 (Ala. 1976).? County commissions do not have inherent power to tax.? Ex parte Coffee County Comm?n, 583 So. 2d 985 (Ala. 1991).? Accordingly, the power to impose county taxes must proceed from a specific legislative expression.? Newton v. City of Tuscaloosa, 251 Ala. 209, 216, 36 So. 2d 487 (Ala. 1948); Coffee County Comm?n v. Townsend, 583 So. 2d 983 (Ala. Civ. App. 1994).

Section 215.02 authorizes a county election on the issue of levying the tax as follows:

If the tax is authorized by vote of a majority of the qualified electors of the county who participate in any election called for that purpose, the governing body of every county except Mobile, Montgomery and Jefferson counties must levy and collect, in addition to all other taxes authorized by law, a special county tax, not exceeding four mills on each dollar of taxable property in the county to be used solely for acquiring, by purchase, lease, or otherwise, constructing, operating, equipping, or maintaining county hospitals, or other public hospitals, non-profit hospitals and public health facilities.? An election may be called at any time by the governing body of the county, and must be called within three months of receipt of a petition, signed by not less than five percent of the qualified electors of the county, requesting that the election be called.? The election shall be conducted in the manner which the governing body of the county prescribes.

Ala. Const. art. XI, ??215.02 (amend. 72).?

The Alabama Supreme Court has considered whether a county can hold more than one election on the issue of implementing a special tax to fund hospital facilities.? In re Opinion of the Justices No. 93, 252 Ala. 194, 41 So. 2d 559 (Ala. 1949).? The following question was posed to the Court:

Does the call and conduct of one election under the amendment by the governing body of a county exhaust the power to call and conduct elections thereunder, or may elections be called from time to time, so long as the rate of the special county tax authorized by the successive elections does not at any time exceed four mills on each dollar of taxable property in the county?

Id. at 197, 562.

The Court held that subsequent elections to increase the tax are permissible so long as the rate does not exceed four mills.? Thus, if a previous county election authorized a rate that is less than four mills, the county can hold additional elections to increase the rate up to the maximum of four mills.

This Office previously addressed this special county tax in an opinion to Honorable Ed Godfrey, Judge of Probate, Chairman, Fayette County Commission, dated February 8, 1995, A.G. No. 85-00208.? That opinion addressed whether a county commission could discontinue levying the tax when the funds are no longer needed.? The Godfrey opinion clarified that the tax is an ad valorem tax, and a county can ?decrease any ad valorem tax rate at any time? provided such decrease shall not impair any bonded indebtedness.? Id. at 3.? That opinion concluded that, when the tax is approved by an election and implemented by a county, the tax can then be decreased, discontinued, or reapplied at its original rate by a vote of the county commission without an additional county election.

Accordingly, if a previous election authorized the maximum taxable amount of four mills, but a lesser amount was implemented by the county, then the county commission can vote to increase the special tax to four mills without an additional election.? Whether prior elections in Geneva County authorized a special county tax in the amount of 2.6 mills or four mills is a question of fact.? The Attorney General determines questions of law and not of fact.? Ala. Code ? 36-15-1(1)(a) & (b) (2013).

CONCLUSION

I hope this opinion answers your question.? If this Office can be of further assistance, please contact Wes Shaw of my staff.

Sincerely,

LUTHER STRANGE

Attorney General

By:

WARD BEESON, III

Chief, Opinions Section

LS/RWS/as

2222718/193280