A recent case from the Supreme Court of Alabama addressed the timing provision of a former Section 40-7-42, which empowered county commissions to levy tax at the first regular meeting in February each year.

Howard v. Cullman County, [1140748, December 4, 2015] (Ala. 2015) (county's failure to follow timing provision of statute did not invalidate tax)

In Howard v. Cullman County, the Supreme Court of Alabama held that the Cullman County Commission's failure to levy tax at its first regular meeting of February 2013, as required by former Section 40-7-42 of the Code of Alabama, did not invalidate its subsequent levy of tax in May 2013.  According to the Supreme Court of Alabama, the provision of former Section 40-7-42 that county commissions levy tax at the first regular meeting in February each year was “directory” and not “mandatory.”  The purpose of the statute was authorizing county commissions to levy tax, not imposing a time limit in which the county commission must do so.

In Howard, the Cullman County Commission failed to levy general and special taxes at the first regular meeting in February of 2013.  The Commission was aware of former Section 40-7-42, which provided:

The county commission, at the first regular meeting in February in each year, shall levy the amount of general taxes required for the expenses of the county for the current year . . . at the same time levying the amount of special taxes required for the county for the current year (emphasis added).

Despite its awareness of this statute, the Commission did not levy any tax until May of 2013.

The taxpayer in Howard brought an action to invalidate the Commission's levy of tax on behalf of himself and all other similarly situated taxpayers.  The taxpayer argued that the levy was invalid because the plain language of former Section 40-7-42 was not followed. Because the Commission did not levy tax at its first regular meeting in February, the tax was invalid.  The Supreme Court of Alabama disagreed, concluding that the statute's requirement was “directory” and not “mandatory.”  “Mandatory” provisions, according to the court, are those that go to the essence of the action to be taken under a statute. “Directory” provisions are those that are not essential but are matters of form and convenience, the violation of which does not void action which may not follow a statute's directive.  In affirming the trial court's conclusion that the statute was directory, the Supreme Court held that the power of county commissions to levy tax that was the essence of the statute and, therefore, the mandatory provision.  As such, the levy of tax could not be invalidated by the mere failure to follow the directory timing provisions of former Section 40-7-42.

Howard was one of six such challenges in Cullman, Pickens, Walker, Fayette, Elmore, and Autauga Counties.  In response to these challenges, the Alabama legislature enacted new Section 40-7-42, effective April 10, 2014, which ratified and confirmed past levies by county commissions irrespective of whether such levies were timely.  New Section 40-7-42 also provides that county commissions are to levy tax at the first regular meeting of February 2015.  Pursuant to new Section 40-7-42, tax levies will continue to be assessed and collected at the existing rates in all subsequent tax years unless altered by the county commission by the last day of February prior to the effective date of the change.