author: LEE, J.,

text:
    Mario WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01162-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Rehearing Denied Jan. 13, 2004.

      Tommy Wayne Defer, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., LEE, IRVING and GRIFFIS, J.J.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Mario Williams was convicted of manslaughter by a jury in the Tallahatchie County Circuit Court on June 11, 2002, and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Williams now perfects his appeal to this Court, asserting the following issues: (1) the trial court erred in granting the State’s jury instruction, S-3, as to the elements of self-defense; (2) his trial counsel was ineffective for failing to object to jury instruction S-3; (3) the trial court erred in denying proposed jury instruction D-l, a peremptory instruction; and (4) the trial court erred in denying his motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Finding no merit to the issues presented, we affirm.

FACTS

¶ 2. On March 31, 2001, a group of men, including the victim, Richard Redd, also known as Terrel, came to Webb, Mississippi. This group approached Mario Williams, who was on a porch shooting dice with six others. Redd approached Williams about some money which Williams had “beaten out of’ Redd on another occasion. Redd asked for his money and Williams pulled out some money and threw it to the ground. After Redd picked up the money and began to walk away, Williams drew a gun and fired at Redd. Redd died shortly thereafter from a gunshot wound to the right shoulder. Williams admitted that he shot Redd, but claimed he did so in self-defense.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN GRANTING THE STATE’S JURY INSTRUCTION, S-3, AS TO THE ELEMENTS OF SELF-DEFENSE?

¶ 3. With his first issue, Williams asserts that the State’s jury instruction S-3, concerning self-defense, is not appropriate according to Reddix v. State, 731 So.2d 591 (Miss.1999). Williams specifically claims that jury instruction S-3 is an incomplete statement of law because it does not instruct the jury it had an affirmative duty to acquit him if it determined he had acted in self-defense.

¶ 4. We note that Williams made no contemporaneous objection to the granting of this particular instruction. The law is well settled that if no contemporaneous objection is made, the error, if any, is waived. Walker v. State, 671 So.2d 581, 587 (Miss.1995). However, a defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal. Foster v. State, 689 So.2d 1263, 1288-89 (Miss.1994). Although Williams admits to his failure to object to the instruction, he contends that the granting of the instruction adversely affected his fundamental right to a fair trial and due process of law and, consequently, that we may address this issue as plain error. Having determined that Williams’ claim is barred procedurally, we will nonetheless proceed to determine whether a substantive right was affected and whether that error led to a miscarriage of justice. Gray v. State, 549 So.2d 1316, 1321 (Miss.1989).

¶5. In reviewing a challenge to jury instructions, the instructions actually given must be read as a whole. Williams v. State, 803 So.2d 1159(¶ 7) (Miss.2001). When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id. Instruction S-3 stated as follows:

The Court instructs the Jury that to make a Murder justifiable on the grounds of self-defense, the danger to the Defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm; and, in addition to this, he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the Defendant acts and whether the Defendant acted in necessary self-defense.

This instruction is the same instruction on self-defense recommended by Robinson v. State, 434 So.2d 206, 207 (Miss.1983) (overruled on other grounds, Flowers v. State, 473 So.2d 164, 165 (Miss.1985)). However, in Reddix v. State, 731 So.2d at 595, the supreme court held that the Robinson instruction did not “sufficiently treat the subject of self-defense” because it failed to alert the jury to its duty to acquit if it believed the theory of self-defense.

¶ 6. Nevertheless, the jury was given instructions in addition to the Robinson instruction on self-defense. The jury was given instruction S-l, which stated:

The Court therefore instructs you the jury that if you find from the evidence in this case, beyond a reasonable doubt, that:
1) On March 31, 2001, the defendant, Mario Williams, did shoot and kill Richard Redd, a human being;
2) Without authority of law and not in necessary self-defense;
* * * *
If the State has failed to prove any one or more of these elements, beyond a reasonable doubt, then you shall find the defendant not guilty.

The jury was also given instruction number 15, which stated:

Manslaughter is the killing of a human being, without malice, in the heat of passion, by the use of a deadly weapon, without authority of law, and not in necessary self-defense.
* * * *
If you find from the evidence in this case beyond a reasonable doubt that Richard Redd was a human being and that the Defendant, Mario Williams, did so shoot and kill Richard Redd without malice, in the heat of passion, by the use of a deadly weapon, without authority of law, and not in necessary self-defense, then you shall find the Defendant guilty of Manslaughter.
If the State has failed to prove any one or more of the elements of manslaughter, beyond a reasonable doubt, then you shall find the Defendant not guilty.

¶ 7. As in Williams and Montana v. State, 822 So.2d 954 (Miss.2002), the Red-dix problem is cured by the additional instructions given in the case sub judice. Therefore, we find this issue to be without merit.

¶ 8. Williams also briefly mentions that, since the word “imminent” was underlined in instruction S-3, this was confusing and misleading to the jury, causing the jury to concentrate on one particular word or segment of the instruction rather than the instructions as a whole. Williams claims that this is not permitted and constitutes reversible error. However, the cases cited by Williams to support this argument do not apply to the case sub judice. This instruction is neither inaccurate or confusing, constituting reversible error under Sudduth v. State, 562 So.2d 67, 72 (Miss.1990), nor does the instruction single out or contain comments on specific evidence. See Duckworth v. State, 477 So.2d 935, 938 (Miss.1985).

II. WAS WILLIAMS’ TRIAL COUNSEL INEFFECTIVE FOR FAILURE TO OBJECT TO JURY INSTRUCTION S-3?

¶ 9. In his next issue, Williams claims that his trial counsel was ineffective for failing to object to jury instruction S-3. Williams contends that, in light of Reddix, the failure of counsel to object to this instruction adversely affected his right to due process of law and a fundamentally fair trial. We look to our standard of review concerning claims of ineffective assistance of counsel. While looking to the totality of the circumstances, we must determine whether Williams proved his counsel’s performance was deficient and whether this deficiency resulted in prejudice to Williams. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must discover if any of the purported errors were “outside the range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

¶ 10. We cannot find that Williams’ trial counsel was ineffective, especially in determining that there was no error with regards to the jury instructions. Furthermore, Williams has neither proven that his counsel’s performance was deficient nor that, if there was a deficiency, prejudice resulted. We do not find that the failure to object was outside the range of professionally competent assistance, thus this issue is without merit.

III. DID THE TRIAL COURT ERR IN DENYING WILLIAMS’ REQUEST FOR A PEREMPTORY INSTRUCTION?

¶ 11. In his third issue, Williams contends that the trial court erred in denying his request for a peremptory instruction. Williams argues that there was an evidentiary basis to grant a peremptory instruction. We look to our standard of review concerning peremptory instructions:

The standard of review for peremptory instructions and directed verdicts are the same. In passing upon a request for a peremptory instruction, all evidence introduced by the State is to be accepted as true, together with any reasonable inferences that can be drawn from that evidence, and if sufficient evidence to support a verdict of guilty exists, the motion for a directed verdict is to be overruled.

Wall v. State, 718 So.2d 1107(¶ 15) (Miss.1998). Mississippi law is clear on the subject of peremptory instructions in criminal cases: “peremptory instructions should be refused if there is enough evidence to support a verdict.” Warn v. State, 349 So.2d 1055, 1055 (Miss.1977). See also Hicks v. State, 580 So.2d 1302, 1304 (Miss.1991); Benson v. State, 551 So.2d 188, 193 (Miss.1989). The court will reverse only when reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 12. Reviewing the evidence in this case, we find that there was enough evidence to support the verdict. Although Williams admitted to shooting Redd, there were inconsistencies between the testimony of the State’s witnesses and the defense witnesses. The witnesses for the State testified that they did not see Redd with a weapon, that Redd demanded his money and Williams then threw it down, and that Williams shot Redd after Redd picked up the money and was walking away. The defense witnesses testified that Redd was in possession of a gun. Williams testified that Redd was pointing the gun at him as he attempted to leave, that he heard shots, and that he shot at Redd in order to protect himself. The jury obviously found the State’s witnesses to be more credible than the defense witnesses. We note the well-settled law that it is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)). It is also within the jury’s province to determine the weight and credibility of the evidence. Wetz, 503 So.2d at 808. We cannot find that the trial court erred in refusing to give the peremptory instruction.

IV. DID THE TRIAL COURT ERR IN DENYING WILLIAMS’ MOTION FOR A JNOV OR, IN THE ALTERNATIVE, A NEW TRIAL?

¶ 13. In his last issue, Williams argues that the trial court erred in denying his motion for a JNOV or, in the alternative, a new trial. Specifically, Williams briefly argues that the verdict was not supported by sufficient evidence and that the verdict was against the overwhelming weight of the evidence. As Williams addresses both the sufficiency of the evidence and the weight of the evidence, we will discuss each separately.

a. Sufficiency of the evidence

¶ 14. For the sufficiency of the evidence we look to our standard of review:

[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We reverse when, with respect to an element of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.

Muscolino v. State, 803 So.2d 1240 (¶ 10) (Miss.Ct.App.2002) (citations omitted). In his argument, Williams incorporates his previous arguments as reasons why the evidence was insufficient to convict him. Basically, Williams argues that since he claims to have shot Redd in self-defense, then that is sufficient evidence for the jury to find him innocent of the charges. However, in accepting as true the credible evidence consistent with Williams’ guilt, we cannot find that the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.

b. Overwhelming weight of the evidence

¶ 15. We look to our standard of review in determining whether the jury verdict was against the overwhelming weight of the evidence:

[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77(¶ 14) (Miss.2001). In claiming that the verdict of guilty of manslaughter was against the overwhelming weight of the evidence, Williams again relies on his version of the event, in which Redd had a gun and fired first. However, we cannot find that the trial court has abused its discretion in failing to grant a new trial. Furthermore, we cannot find that to let the verdict stand would sanction an unconscionable injustice. Thus, we find this issue to be without merit.

¶ 16. THE JUDGMENT OF THE TALLAHATCHIE COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO TALLAHATCHIE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

license: Public Domain

text:
    Cheryl Van Zant WALLMARK, Appellant, v. Val J. WALLMARK, Appellee.
    No. 2002-CA-02150-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      William B. Pemberton, Ridgeland, attorney for appellant.
    Kathleen A. Conway, Jackson, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Cheryl and Yal Wallmark were married on January 4, 1985, and separated on February 25, 1999. At the time of the marriage Val was in the Navy and Cheryl worked in naval oceanography. There are contradictory statements as to whether Cheryl quit this job or was fired. Nevertheless, during the first years of marriage, Cheryl worked at various jobs including waitressing. After Val was discharged from the Navy in 1988, the parties moved to the Gulf Coast where Cheryl once again became employed with the naval oceanographic office where she worked until 1996. During this time Cheryl had been experiencing health problems, finally being diagnosed with chronic fatigue syndrome and fybromyalgia. Cheryl began receiving full disability benefits in 1998.

¶ 2. Val worked at various jobs after his discharge from the Navy. At the time of the trial Val had been working for Senso-matic Electronics.

¶ 3. Val filed a complaint for divorce in April 2000, alleging habitual cruel and inhuman treatment. Cheryl filed a counterclaim in September 2000, alleging uncondoned adultery, habitual cruel and inhuman treatment, and alternatively, irreconcilable differences. The matter came on for trial in May 2001, but prior to the court’s ruling, both parties requested that the matter be reopened in order to receive additional testimony on the issue of the marital estate. Further evidence was submitted to the court in the -form of affidavits submitted by both parties in December 2001.

¶ 4. On June 13, 2002, Cheryl was granted a divorce on the ground of uncondoned adultery. The court divided the assets and liabilities, denied lump sum and permanent alimony to Cheryl, and directed each party to pay their own attorney’s fees and costs. Cheryl now perfects her appeal to this Court asserting the following issues: (1) the chancellor erred in denying her permanent alimony; (2) the chancellor erred in failing to award her lump sum alimony; (3) the chancellor erred in determining equitable distribution; and (4) the chancellor erred in denying her attorney’s fees.

STANDARD OF REVIEW

¶ 5. When reviewing the decisions of a chancellor, this Court applies a limited abuse of discretion standard of review. McNeil v. Hester, 753 So.2d 1057(¶ 21) (Miss.2000). The findings of the chancellor will not be disturbed “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id.

DISCUSSION OF ISSUES

I. DID THE CHANCELLOR ERR IN DENYING CHERYL PERMANENT ALIMONY?

¶ 6. In her first issue, Cheryl contends that the denial of permanent alimony by the chancellor was unfair, inequitable, and clear error. Specifically, Cheryl claims that the disparity in income between her and Val is such that permanent alimony is necessary. The Mississippi Supreme Court has held that an award of alimony is left to the chancellor’s discretion. Voda v. Voda, 731 So.2d 1152(¶ 7) (Miss.1999). “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Smith v. Smith, 607 So.2d 122, 126 (Miss.1992). The following factors are to be considered by the chancellor in deciding whether to award alimony: the income and expenses of the parties, the health and earning capacities of the parties, the needs of each party, the obligations and assets of each party, the length of the marriage, the presence or absence of minor children in the home, the age of the parties, the standard of living of the parties during the marriage and at support determination, the tax consequences of the spousal support order, fault or misconduct, wasteful dissipation of assets by either party, and any other equitable factors. Id. We find it is clear the chancellor divided the marital assets in such a way as to alleviate the need for an alimony award to Cheryl.

¶ 7. The chancellor noted that a disparity existed in Cheryl and Val’s earning capacities. At the time of the trial, Val’s adjusted gross income is $2,539 per month, and his living expenses totaled $2,112. Cheryl’s income from her disability check is $1759 per month, and her living expenses total $1600. The chancellor did acknowledge a disparity in income between the two. However, the chancellor noted that as Val has only a secondary school education, his job and income are not assured, whereas Cheryl’s income from the government is guaranteed as is the annual increase in her income. The chancellor also recognized that Cheryl receives medical treatment at no cost to her.

¶ 8. Val was awarded the following assets: the duplex in Long Beach, Mississippi, valued at $106,059; and his retirement account, valued at $27,110. Val was ordered to pay much of the marital debt, including: the debt on the duplex at approximately $8,705; the balance on the loan made against his retirement account, set at $5,306; two credit card debts with balances of $5,365 and $4,191; and repayment of a loan from Val’s mother. Val was also awarded his vehicle, valued at $1,000.

¶ 9. Cheryl was awarded the proceeds from the sale of the property in Hancock County, Mississippi, and as a result, the Pennsylvania property she purchased with the proceeds. The proceeds were valued at $132,500. Cheryl was ordered to pay the balance of $14,628 on another credit card. Cheryl was also awarded her vehicle, valued at $5,302.

¶ 10. Regarding the other factors, the parties were married for seventeen years and they had no children. The chancellor noted that age was not a deciding factor as Cheryl, who was forty-six at the time of the trial, will likely receive a lifetime income for her disability. The chancellor also noted that Val admitted to committing adultery during the marriage. The chancellor determined that “whatever depletion of the marital estate that has occurred was by the parties’ agreement” and that the only tax consequences would be a potential capital gains tax liability for Val should he sell the duplex.

¶ 11. After evaluating all of this information in great detail, the chancellor concluded that Cheryl was not entitled to alimony. In his decision to deny alimony, the chancellor stated that, after equitably dividing the marital estate, Cheryl “should be very well able to provide for her needs, and in doing so will be living at least as well as a single person as she did while married to Val.” We cannot find that the denial of periodic alimony was so oppressive, unjust, or grossly inadequate as to evidence an abuse of discretion by the chancellor; thus, we find this issue to be without merit.

II. DID THE CHANCELLOR ERR IN DENYING CHERYL LUMP SUM ALIMONY?

¶ 12. In her second issue, Cheryl claims that she met the necessary requirements in order to qualify for lump sum alimony. In Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988), the supreme court listed several factors to be considered by the chancellor in determining whether to award lump sum alimony: (1) whether the spouse seeking lump sum alimony made a substantial contribution to the potential payor’s accumulation of wealth; (2) length of the marriage; (3) disparity between the separate estates; and (4) whether the spouse seeking lump sum alimony would lack financial security in the absence of an award. However, the single most important factor is the disparity of the separate estates. Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Cheatham, 537 So.2d at 438.

¶ 13. The chancellor reviewed these factors and applied them to the facts. The chancellor said that both Cheryl and Val had contributed equally to the family’s support. The chancellor noted that “they each experienced periods of unemployment and under-employment, but on balance neither of them has a superior position in the contributions they made in this regard.” With regard to the length of the marriage, the chancellor found that seventeen years was long enough to consider alimony; however, he found that all other factors indicated an award of alimony was not warranted. After making an equitable division of the marital estate giving equal separate estates to the parties, the chancellor determined that no disparity existed. The chancellor further determined that, from her equal separate estate and income, Cheryl should be financially secure. We do not find that the chancellor’s decision to deny an award of lump sum alimony amounts to an abuse of discretion; thus, this issue is without merit.

III. DID THE CHANCELLOR ERR IN DETERMINING EQUITABLE DISTRIBUTION?

¶ 14. In her third issue, Cheryl claims that the chancellor erred in dividing the marital assets and liabilities. Equitable distribution in a divorce case is governed by the guidelines set out by our supreme court in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). These guidelines include:

(1) economic and domestic contributions by each party to the marriage,
(2) expenditures and disposal of the marital assets by each party,
(3) the market value and emotional value of the marital assets,
(4) the value of the nonmarital property,
(5) tax, economic, contractual, and legal consequences of the distribution,
(6) elimination of alimony and other future frictional contact between the parties,
(7) the income and earning capacity of each party, and
(8) any other relevant factor that should be considered in making an equitable distribution.

Ferguson, 639 So.2d at 928. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). In his order, the chancellor, following the Ferguson factors, clearly articulated his rationale for the equitable division of the marital estate, which was discussed fully in the first issue. We conclude that the chancellor’s ruling on the issue on equitable division of the martial assets was within the court’s authority and discretion to resolve such matters. An abuse of discretion or an application of a clearly erroneous legal standard has not been shown in this matter; thus, this issue is without merit.

IV. DID THE CHANCELLOR ERR IN DENYING CHERYL ATTORNEY’S FEES?

¶ 15. In her final issue, Cheryl contends that because she was granted a divorce on the grounds of uncondoned adultery then Val should be responsible for her attorney’s fees. If a party is financially able to pay his or her own attorney in a domestic case, then it is inappropriate to require the other party to make the payment instead. Benson v. Benson, 608 So.2d 709, 712 (Miss.1992). Payment of attorney’s fees is discretionary with the chancellor and will be upheld unless we find that the discretion was abused. Armstrong, 618 So.2d at 1282. The chancellor determined that Cheryl and Val each had sufficient resources to bear the expense of their attorney’s fees. We may not always agree that a chancellor decided the issues in a manner that we would have. However, our limitation as an appellate court is to determine whether the decisions were within the range of discretion permitted by the evidence and the applicable law. Here, we cannot find that the chancellor abused his discretion in failing to award Cheryl her attorney’s fees; thus, this issue is without merit.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

McMILLIN, C. J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: PER CURIAM. JOHNSTONE, Justice HOUSTON, Justice MOORE, Chief Justice

text:
    Joe BROWN et al. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY et al. Elmore County v. Board of Education of Montgomery County et al. Susan V. Helms et al. v. Board of Education of Montgomery County et al. B. Elebash Agricola and Matthew Givens v. Board of Education of Montgomery County et al. Floyd Minor et al. v. Board of Education of Montgomery County et al. Ellen Brooks, District Attorney v. Board of Education of Montgomery County et al.
    1020755, 1020758, 1020763, 1020764, 1020768, and 1020773.
    Supreme Court of Alabama.
    May 2, 2003.

      John E. Enslen of Enslen, Pinkston & Courtney, LLP, Wetumpka, for appellants Joe Brown, Rose Marie Brown, Christopher Brown, and other individual taxpayers in ease no. 1020755.
    George L. Beck, Jr., Gregory M. Biggs, and Terrie S. Biggs of George L. Beck, Jr., P.C., Montgomery, for appellant Elmore County in case no. 1020758.
    James M. Sizemore, Jr., Montgomery, for appellants Susan V. Helms et al. in case no. 1020763.
    Jeffery C. Duffey, Montgomery, for appellants B. Elebash Agrícola and Matthew Givens in case no. 1020764.
    J. Doyle Fuller, Montgomery, and L. Cooper Rutland, Jr., of Rutland & Bras-well, Union Springs, for appellants Glenn Franklin Bayles, Floyd Minor, and Rawl T. Barksdale in case no. 1020768.
    Eleanor I. Brooks, district atty., and Tracy L. Roberts, deputy district atty., Montgomery, in case no. 1020773.
    James R. Seale of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; Terry G. Davis of Davis & Hatcher, L.L.C., Montgomery; and James N. Walter, Jr., and John F. Andrews of Capell & Howard, P.C., Montgomery, for appellees the Board of Education of Montgomery County and its members.
    Thomas T. Gallion III of Haskell Slaughter Young & Gallion, LLC, Montgomery; and Tyrone C. Means of Thomas, Means, Gillis & Seay, P.C., Montgomery, for appellee Montgomery County Commission.
    Charles B. Paterson of Balch & Bing-ham, LLP, Montgomery, for amici curiae Montgomery Area Chamber of Commerce and Montgomery Interdemoninational Ministerial Alliance; Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Montgomery Education Foundation; David R. Boyd and Dorman Walker of Balch & Bingham, LLP, Montgomery, for amicus curiae Alabama Association of School Boards; and Tabor R. Novak, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for amicus curiae A 4- Education Foundation, in support of the appellants.
   PER CURIAM.

On January 31, 2003, the Montgomery Circuit Court entered a judgment confirming the validity and legality of (1) $100 million in revenue warrants (“the warrants”) issued by the Board of Education of Montgomery County (“the Board”) and (2) an ordinance (“the ordinance”) enacted by the Montgomery County Commission (“the Commission”) imposing a “Privilege License Tax Upon the Privilege of Engaging in Trades, Occupations and Professions in Montgomery County” (“the occupational tax”).

The Montgomery County district attorney (on behalf of the taxpayers and citizens of Montgomery County), intervenor taxpayers (the district attorney and the intervenor taxpayers are hereinafter referred to collectively as “the taxpayers”), and Elmore County filed six notices of appeal. Upon motion of the parties, the six appeals were consolidated. We reverse and remand.

I. Facts

On August 19, 2002, the Board passed a resolution authorizing the sale and issuance of the warrants, and the Commission, by a vote of 3 to 2, enacted the ordinance, imposing a 1.5% tax on “Employee Compensation” and “Owner Compensation” (as those terms are defined in the ordinance) received by individuals who work in Montgomery County. Also on August 19, 2002, the Board filed this action seeking to have the warrants and the occupational tax validated in accordance with Ala.Code 1975, §§ 11-81-220 through 11-81-227 (included in Article 7 of Chapter 81, entitled “Validation of Bonds Prior to Issuance”). The proceeds of the occupational tax were pledged to the Board “for public school purposes, including, without limitation, the payment of the principal of, premium, if any, and interest on the Warrants.”

In accordance with § ll-81-222(b), the trial court issued an order requiring taxpayers and citizens of Montgomery County to show cause by September 13, 2002, as to why the warrants should not be validated and confirmed. A copy of the trial court’s order was published once a week for three consecutive weeks in the Montgomery Advertiser, a daily newspaper published in Montgomery County. A copy of the complaint and order was served on the district attorney of Montgomery County more than 18 days before the date set for the hearing on the complaint.

The district attorney answered the complaint, raising a number of legal defenses on behalf of taxpayers and citizens of Montgomery County. Numerous individual citizens, including citizens and taxpayers who reside outside Montgomery County, were permitted to intervene and to assert defenses. Of those entities that sought to intervene, only Elmore County and the Alabama State Employees Association were denied the right to intervene. The trial court held a three-day hearing at which ore tenus evidence was presented; it then entered its final judgment.

II. Standard of Review

The trial court made 14 separate findings of fact, none of which is in dispute. This appeal concerns questions of law, including the interpretation of statutory provisions. Therefore, we review the issues presented by this appeal de novo, and the trial court’s decision carries no presumption of correctness. Ex parte Baron Servs., Inc., [Ms. 1011635, April 4, 2003] — So.2d - (Ala.2003). Additionally, we note that an ordinance enacted by a local governing body “is presumed reasonable and valid, and that the burden is on the one challenging the ordinance to clearly show its invalidity.” Jefferson County v. Richards, 805 So.2d 690, 706 (Ala.2001).

III. Analysis

A.

The taxpayers assert several arguments against the imposition of the occupational tax, including, among others, (1) that Ala. Code 1975, § 40-12-4(a), does not authorize the Commission to impose the occupational tax because the occupational tax is not a franchise, excise, or privilege-license tax and, as it applies to most taxpayers, is not levied with respect to “privileges or receipts from privileges”; (2) that § 40-12-4(b) prohibits the imposition of the occupational tax both because it is a tax “measured by gross proceeds” and because it is not “levied uniformly”; (3) that the occupational tax violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (4) that the occupational tax cannot be legally imposed on military personnel or lawyers. However, we need not address each of these arguments, because of our holding that the occupational tax violates § 40-12-4(b).

It is well established that “Alabama counties are creatures of statute, and thus ‘can exercise only that authority conferred on [them] by [the Legislature].' ” Dillard v. Baldwin County Comm’n, 833 So.2d 11, 16 (Ala.2002) (quoting Jefferson County v. Johnson, 333 So.2d 143, 145 (Ala.1976)). This principle is true with regard to all county powers, including the power of taxation. Lightwave Techs., LLC v. Escambia County, 804 So.2d 176, 180 (Ala.2001). By enacting Ala.Code 1975, § 40-12-4(a), the Legislature authorized counties to impose certain taxes for school purposes:

“(a) In order to provide funds for public school purposes, the governing body of each of the several counties in this state is hereby authorized by ordinance to levy and provide for the assessment and collection of franchise, excise and privilege license taxes with respect to privileges or receipts from privileges exercised in such county, which shall be in addition to any and all other county taxes heretofore or hereafter authorized by law in such county.... All the proceeds from any tax levied pursuant to this section less the cost of collection thereof shall be used exclusively for public school purposes, including specifically and without limitation capital improvements and the payment of debt service on obligations issued therefor.”

(Emphasis added.)

However, the Legislature’s grant in § 40-12^4(a) of taxing authority is expressly limited by § 40-12-4(b):

“(b) Notwithstanding anything to the contrary herein, said governing body shall not levy any tax hereunder measured by gross receipts, except a sales or use tax which parallels, except for the rate of tax, that imposed by the state under this title.... No such governing body shall levy any tax upon the privilege of engaging in any business or profession unless such tax is levied uniformly and at the same rate against every person engaged in the pursuit of any business or profession within the county; except, that any tax levied hereunder upon the privilege of engaging in any business or profession may be measured by the number of employees of such business or the number of persons engaged in the pursuit of such profession.”

B.

By beginning with the phrase, “[n]ot-withstanding anything to the contrary herein,” § 40-12-4(b) expressly trumps any contrary language in § 40-12-4(a) because we interpret “herein” as referring to anything else in § 40-12-4. Hence, anything in § 40-12-4(b) that is inconsistent with the levy of an occupational tax supersedes any reference in § 40-12-4(a) that could be read as encompassing such a tax. Black’s Law Dictionary, 585 (7th ed.1999), defines an excise tax:

“A tax imposed on the manufacture, sale, or use of goods (such as cigarette tax), or on an occupation or activity... . — Also termed excise tax. ...”

Black’s Lato Dictionary, 1471, defines “occupation tax” as follows:

“An excise tax imposed for the privilege of carrying on a business, trade, or profession. ... Also termed occupational tax.’’

(Some emphasis in definitions added; some emphasis original.) The introductory language of § 40-12-4(b) must be read to eliminate this construction of an “occupation tax” as an “excise tax” if the balance of § 40-12-4(b) is inconsistent with the levy of an occupational tax.

Section 40-12-4(b) prohibits occupational taxes in two ways. First, § 40-12-4(b) begins with a prohibition of a tax measured by gross receipts except under circumstances not here relevant. When this statute was enacted, gross-receipts taxes were commonly understood to embrace an occupational tax. Estes v. Gadsden, 266 Ala. 166, 171-72, 94 So.2d 744, 748-49 (1957); McPheeter v. City of Auburn, 288 Ala. 286, 292, 259 So.2d 833, 837 (1972). Such circumstance aids us in determining the meaning of the reference to gross receipts in § 40-12-4(b). See Abbott Labs, v. Durrett, 746 So.2d 316, 339 (1999):

“In an effort to avoid indulging in conjecture or searching for imaginary purposes with respect to these ... statutes, we have followed the well-settled rule of statutory construction ‘that it is permissible in ascertaining [the purpose and intent of a statute] to look to the history of the times, the existing order of things, the state of the law when the instrument was adopted, and the conditions necessitating such adoption.’ In re Upshaw, 247 Ala. [221] at 223, 23 So.2d [861] at 863 [ (1945) ].”

In addition, a tax on an employer could be measured by gross receipts. Section 40-12 — 4(b) thus condemns taxes on gross receipts imposed on either the employee or the employer. Although the ordinance provides a deduction for the first $5,000 of income, counsel for the Board conceded at oral argument that that deduction could be reduced to $1 in the future and his argument in favor of the occupational tax would remain unchanged. It would exalt form over substance to deem the presence of a deduction sufficient to overturn the obvious legislative hostility to measuring tax liability by gross receipts. See McPheeter v. City of Auburn, 288 Ala. at 289, 259 So.2d at 837.

Second, § 40-12^(b) addresses the type of tax related to business income that is deemed appropriate in the context of a tax “upon the privilege of engaging in any business or profession” so long as that tax is “levied uniformly,” with one exception— the tax may be measured by the number of employees of the business or the number of persons engaged in the pursuit of the profession. In plain English, § 40-12-4(b) says: “Don’t tax anyone by gross receipts, and if you must tax a business or a profession, do so uniformly, but you can compute the tax on businesses or professions on a per capita basis.” No reference is made in § 40-12-4(b) to trades or occupations. Employees are not engaged in the pursuit of a business or a profession in the context used in § 40-12-4(b); the context plainly speaks to taxing only employers. An ordinance taxing only those employers who are individuals and all employees impermissi-bly attempts to circumvent the prohibitions in § 40-12-4(b) against imposing taxes on employees by lumping all employees together.

c.

Even if § 40-12-4(b) did not prohibit counties from levying occupational taxes, it is clear that the occupational tax levied by the Commission is not “levied uniformly” because it does not tax certain “person[s] engaged in the pursuit of ... business ... within the county.” Ala.Code 1975, § 40-12-4(b).

The term “person,” as that term is used in Title 40 of the Alabama Code, is defined in Ala.Code 1975, § 40-1-1; that section provides:

“For purposes of this title, and subject to additional definitions which are applicable to specific chapters or parts thereof, and unless the context otherwise requires, the following terms shall have the respective meanings ascribed by this section:
“(8) Person. Any individual, association, estate, trust, partnership, corporation, or other entity of any kind.”

(Emphasis added.) The Legislature’s use of the word “shall” makes it clear that under § 40-1-1 this Court is required to apply the definition of “person” found in § 40-1-1 to § 40 — 12—4(b) unless that meaning is superseded by other definitions specific to § 40-12-4(b) (there are none) or “unless the context otherwise requires.” See Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (“The word ‘shall’ is clear and unambiguous and is imperative and mandatory.”). In other words, there is no discretionary “middle ground”; we are required to apply the meanings in the definitions enumerated in § 40-1-1 unless required to apply a meaning that is otherwise made clear by context.

We cannot identify any context within § 40-12-4(b) that would permit (much less require) us to apply a different meaning to the term “person” than the one explicitly provided in § 40-1-1(8). The Board argues that the term “person” in § 40-12-4(b) should be read as excluding such entities as corporations because, it argues, in enacting other sections of Title 40 the Legislature appeared to recognize a distinction between the terms “person” and “corporation.” See Ala.Code 1975, § 40-12-2(a) (“Before any person, firm, or corporation shall engage in or carry on any business or do any act for which a license by law is required....”); Ala.Code 1975, § 40-12-9(a) (“It shall be unlawful for any person, firm, or corporation to engage in or carry on any business-”); Ala.Code 1975, § 40-12-13 (“Where any person, firm, or corporation is engaged in more than one business.... ”); Ala.Code 1975, § 40-12-15(a) (“[Personal privilege to transact business] shall not be exercised except by the person, firm, or corporation licensed. ...”); Ala.Code 1975, § 40-12-18 (“Any person who acts as an agent for any person, firm, or corporation .... ”).

We find this argument unpersuasive for at least two reasons. First, the statutes cited by the Board were enacted separately from § 40-12-4(b), a fact which makes less viable any inference that the various sections of Title 40 can be read in pari materia to imply a legislative intent to redefine “person” as that term is used in § 40-12-4(b). Second, and most importantly, the Board’s argument itself makes clear that the Legislature knew how to separate the terms and, for whatever reason, chose not to do so in § 40-12-4(b). In this respect, its argument actually cuts against the Board. In any event, the Board’s argument certainly does not provide a context that would require a construction of the term “person” as used in § 40-12-4(b) other than the one provided by § 40-1-1(8).

Even if the occupational tax was a type of tax that the Commission could levy under § 40-12-4(a), to be valid the occupational tax would have to be “levied uniformly and at the same rate against every [‘individual, association, estate, trust, partnership, corporation, or other entity of any kind’] engaged in the pursuit of any business or profession within the county.” Ala.Code 1975, § 40-12-4(b); § 40-1-1(8).

As stated earlier, the ordinance describes the occupational tax as “A Privilege License Tax Upon The Privilege of Engaging in Trades, Occupations and Professions in Montgomery County.” Section l(r) of the ordinance defines the occupational tax as follows: “ ‘Tax’ shall mean the privilege license tax ... levied and assessed hereunder.” Section 2 of the ordinance imposes the tax upon “any Employee and any Owner who engages in or follows any Trade, Occupation or Profession,” including “both residents and nonresidents of the County.” (Emphasis added.)

The ordinance defines an “Employee” as:

“[AJny individual who receives Employee Compensation.... [A]ny individual who holds any kind of office or position, either by election or appointment, as a federal, state, county, or city official, if such individual does any kind of work or renders any kind of services in the County.”

(Emphasis added.) It'defines “Employee Compensation” as:

“[A]ll cash or non-cash benefits which an Employee receives from or is entitled to receive from or be given credit for by an Employer for work done or services rendered in any Trade, Occupation or Profession in the County. Cash or non-cash benefits shall include all salaries, wages, commissions, bonuses, severance pay or other compensation of any kind or any other consideration having monetary value....”

The ordinance defines an “Owner” as:

“[AJny individual who receives Owner Compensation. Owner shall include sole proprietors and other self-employed individuals ... to the extent such individual receives Owner Compensation.”

(Emphasis added.) It defines “Owner Compensation” as:

“[A]ll net earned income which an Owner receives from or is entitled to receive or be given credit for, in his capacity as Owner and not as an Employee, any work done or services rendered in any Trade, Occupation or Profession in the County....”

“Employees” and “Owners” are by definition “individuals” who receive employee compensation or owner compensation, and the occupational tax is imposed only upon that compensation. However, the occupational tax is not imposed upon the compensation of a corporation, an association, a partnership, etc. This fact is clear from the wording of the ordinance, and the Board has admitted as much.

Because the ordinance does not levy the occupational tax uniformly upon the privilege of every “individual, association, estate, trust, partnership, corporation, or other entity of any kind” that receives compensation for engaging in any business or profession, the Commission cannot levy the occupational tax under § 40-12-4. See Ala.Code 1975, § 40-1-1(8).

The trial court, in its judgment, ordered as follows:

“(h) The [occupational] ‘Tax’ can be and is levied uniformly and at the same rate against every person engaged in the pursuit of any business or profession within the County....”

In doing so, the trial court erred to reversal, unless, as the Board contends, Ala. Code 1975, § 40-12-31, which the Legislature enacted in 2001, trumped the limitations upon the abilities of counties to impose franchise, excise, or privilege-license taxes. The trial court did not address § 40-12-31; however, this Court can affirm the judgment of a trial court for any reason, even for a reason not expressed by the trial court in its order. Southern Energy Homes, Inc. v. Gregor, 777 So.2d 79, 81 (Ala.2000)(“this Court can affirm the ruling of a trial court for any valid reason, even one not presented to or considered by the trial court”).

Section 40-12-31 provides:

“No provision or provisions in this chapter shall prevent the Alabama Legislature from enacting, imposing, and establishing occupational taxes, which are to be paid to the county or otherwise, and are imposed on an individual’s engaging in any occupation, business, or profession without any regard to whether he or she has a license to, or pays a license tax or fee in order to, carry on that occupation, business, or profession.”

In Ex parte Prudential Insurance Co. of America, 721 So.2d at 1138, this Court quoted Tuscaloosa County Commission v. Deputy Sheriffs’ Association of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991), for the following proposition:

“ ‘Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect.’ ”

In essence, the Board argues that § 40-12-31 implicitly repeals the limitations found in § 40-12-4(b); we disagree. See Cook v. Lloyd Noland Found., Inc., 825 So.2d 83, 88 (Ala.2001) (“ ‘The implied repeal of a statute by another statute is not favored by the courts and will be found only when the two statutes are so repugnant to, or in such conflict with, one another that it is obvious that the Legislature intended to repeal the first statute.’ ” (quoting Anniston Urologic Assocs., P.C. v. Kline, 689 So.2d 54, 59 (Ala.1997))). Section 40-12-31 speaks to the power of the Alabama Legislature, not the power of counties. The plain, ordinary, and commonly understood meaning of the words of § 40-12-31 does not empower a county to enact an occupational tax, nor does it in any way remove the requirement of uniformity in § 40-12-4(b).

IV. Conclusion

We hold that the taxpayers have met their burden to “clearly show [the] invalidity” of the ordinance. Richards, 805 So.2d at 706. Therefore, we reverse the judgment of the trial court to the extent that it holds that the levy and collection of the occupational tax the ordinance purports to impose is legal and valid and complies with the laws of the State of Alabama.

1020755 — REVERSED AND REMANDED.

1020758 — APPEAL DISMISSED AS MOOT.

1020763 — REVERSED AND REMANDED.

1020764 — REVERSED AND REMANDED.

1020768 — REVERSED AND REMANDED.

1020773 — REVERSED AND REMANDED.

LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ„ concur.

SEE and JOHNSTONE, JJ, concur specially.

HOUSTON, J., concurs in part and concurs in the result.

MOORE, C.J., concurs in the result, (writing issued on July 16, 2003).

JOHNSTONE, Justice

(concurring specially).

I concur in the scholarly main opinion. I add my own observations about two other grave defects in the Montgomery County tax ordinance now before us.

First, the ordinance exceeds the authority granted the county by § 40-12-4(a), Ala.Code 1975, to levy “taxes with respect to privileges or receipts from privileges.” The ordinance purports to impose the tax “upon any Employee ... who engages in any Trade, Occupation or Profession,” even though most nonprofessional employees in the county are not exercising any privilege as recognized by law and are not earning receipts from a privilege as recognized by law. To the extent that the ordinance purports to tax thése employees, it is illegal. This illegality invalidates the entire ordinance notwithstanding the sev-erability clause of the ordinance inasmuch as the goal of taxing these nonprofessional employees is central to the whole ordinance.

“[T]he whole statute will be stricken if the valid and invalid parts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the other, or where the striking of the invalid would cause results not contemplated or intended by the lawmakers, or where that invalid is the consideration or inducement of the whole act, or where the valid parts are ineffective and unenforceable in themselves, according to the legislative intent.”

State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 241, 59 So. 294, 302 (1912). Accord State v. Roden, 15 Ala.App. 385, 73 So. 657 (1916). See State v. Martin, 735 So.2d 1156 (Ala.1999).

Second, the ordinance purports to exercise police and legislative powers the Montgomery County Commission has not been granted either by the Alabama Constitution of 1901, by any statute, or by any common law principle. See Dillard v. Baldwin County, 833 So.2d 11, 16 (Ala. 2002); Jefferson County v. Johnson, 333 So.2d 143, 145 (Ala.1976); Laney v. Jefferson County, 249 Ala. 612, 614, 32 So.2d 542, 543 (1947); Arledge v. Chilton County, 237 Ala. 96, 99, 185 So. 419, 421 (1938); see also Ex parte Pine Brook Lakes, Inc., 617 So.2d 1014 (Ala.1992), and Bailey v. Shelby County, 507 So.2d 438 (Ala.1987). For example, section 11 of the ordinance purports to create crimes, even felonies, and section 7 purports to grant subpoena power to the county revenue commissioner. Such an exercise would inflict the same harm on the citizens of this state that Article IV, § 104(14), Alabama Constitution of 1901, prohibits the state legislature itself from inflicting.

SEE, J., concurs.

HOUSTON, Justice

(concurring in part and concurring in the result).

I do not concur with Part III.B of the Court’s opinion, because I am not confident that § 40-12-4(b) prohibits the imposition of any occupational tax under § 40-12-4(a). I concur completely with the remainder of the opinion, which I authored. In my opinion, the uniformity requirement of § 40-12-4(b) destroys the validity of the ordinance before us.

MOORE, Chief Justice

(concurring in the result).

I concur with the majority that the occupational tax is invalid under Alabama law. However, I write specially to demonstrate that the majority has reached the right decision on an improper basis.

On August 19, 2002, in an attempt to raise tax revenues, the Montgomery County Commission passed a resolution imposing a 1.5% tax on the “compensation” of “any Employee and any Owner who engages in or follows any Trade, Occupation or Profession” in Montgomery County, regardless of the residence of the employee or owner. “Employee Compensation” includes “all salaries, wages, commissions, bonuses, severance pay or other compensation of any kind, or any other consideration having monetary value.” “Owner Compensation” includes “all net earned income” an “Owner” is entitled to receive, including, but not limited to, “net earnings from self-employment on Internal Revenue Service Form 1040 Schedule SE.” The Montgomery County Board of Education (“the Board”) asserts that this occupational tax is a privilege license tax authorized by § 40-12-4, Ala.Code 1975, to be issued to provide funds for public schools.

The majority holds that § 40-12-31, Ala. Code 1975, enacted by the Legislature in 2001, does not implicitly repeal the limitations of § 40-12-4(b), Ala.Code 1975, as the Board claims, and that the occupational tax is invalid because it was not “levied uniformly” upon individuals and corporations as required by § 40-12-4(b). Nevertheless, I am compelled to conclude that neither § 40-12-4 nor § 40-12-31 permit an occupational tax on “gross receipts” of an individual’s earnings or of a business, because such a tax is a tax on “income” and is prohibited by the limitations of Amendments No. 25 and No. 662 to the Alabama Constitution of 1901.

In Eliasberg Brothers Mercantile Co. v. Chimes, 204 Ala. 492, 495, 86 So. 56, 58 (Ala.1920), this Court stated:

“ ‘Having been taught by experience that no legislative power is more liable to oppressive use than the taxing power, and having suffered evils by resting it too broadly on discretion, the people have shown, in the history of successive constitutions, a progressive policy to restrain the power of the legislative department in this respect, and to remedy existing, and guard against apprehended, evils, by imposing limitations consistent with the public needs and the public safety.’ ”

(Quoting Western Union Tel. Co. v. State Bd. of Assessment, 80 Ala. 273, 275 (1885)) (emphasis added). The Court in Eliasberg Bros, recognized these limitations: “A constitution, properly conceived, deals with basic principles and policies, and omits specific applications. Our constitutions limit the rate of taxation of property.” 204 Ala. at 498, 86 So. at 61 (emphasis added). In 1933, another limitation on the taxation of income was added when Amendment No. 25 to the Alabama Constitution was ratified.

I. Ratification of Amendment No. 25

Originally, an occupational tax was imposed in one of three ways: (1) as a sales tax on the gross amount of sales, Lott v. Ross & Co., 38 Ala. 156 (1861); (2) as a flat-rate tax on an occupation, Phoenix Assurance Co. of London v. Fire Dep’t of Montgomery, 117 Ala. 631, 23 So. 843 (1898); or (3) as a tax on the gross receipts of a business, Western Union Tel. Co. v. State Bd. of Assessment, supra, rev’d on other grounds sub nom. Western Union Tel. Co. v. Seay, 132 U.S. 472, 10 S.Ct. 161, 33 L.Ed. 409 (1886).

In 1919, the Alabama Legislature passed the Revenue Act of 1919, Act No. 328, Ala. Acts 1919, 374-95, which imposed a graduated tax of two to four percent on income. In Eliasberg Bros., supra, this Court struck down the Revenue Act and held that the tax on “income” was a tax on property in excess of the maximum tax rate allowed on property by § 214, Ala. Const.1901. Eliasberg Bros., 204 Ala. at 499, 86 So. at 62. Eliasberg Bros., relying on precedent, stated that the income tax was not an excise tax on an occupation or business; instead it was a property tax. 204 Ala. at 495, 86 So. at 59, citing Lott, 38 Ala. at 160. Thus, the Legislature could impose such a tax only in the event of the adoption of an amendment to the Alabama Constitution granting it the power to tax “income” in a way not restricted by the constitutional limitations on property taxes.

Thirteen years later, on August 2, 1933, the people of the State of Alabama ratified Amendment No. 25, which enabled the Legislature to tax the net incomes of individuals and corporations, but set specific limitations on the Legislature’s authority to impose such taxes. Amendment No. 25 states, in pertinent part:

“The legislature shall have the power to levy and collect taxes for state purposes on net incomes from whatever source derived within this state, including the incomes derived from salaries, fees and compensation paid from the state, county, municipality, and any agency or creature thereof, ... and to designate and define the incomes to be taxed and to fix the rates of taxes, provided that the rate shall not exceed 5 percent nor 3 percent on corporations. Income shall not be deemed property for purposes of ad va-lorem[ ] taxes...

(Emphasis added.)

In anticipation of the ratification of Amendment No. 25, the Legislature passed an enabling act, levying a tax on the incomes of individuals and corporations at the rates specified in Amendment No 25. State v. Weil, 232 Ala. 578, 584, 168 So. 679, 684 (1936). The tax on an individual’s income was based on the individual’s “gross income” less certain deductions. 232 Ala. at 584, 168 So. at 885. The Legislature broadly defined “gross income” as:

“ ‘gains, profits and income derived from salaries, wages or compensation for personal services ... including the salaries, incomes, fees or other compensation ...; also from interest, royalties, rents, dividends, securities or transactions of any business carried on for gain or profit and the income derived from any source whatever.’

232 Ala. at 584, 168 So. at 685 (quoting Act No. 169, Ala. Acts 1933, Ex.Sess.).

In Weil, this Court held that the purpose of Amendment No. 25 was “to remove net incomes, as a subject of taxation, from the influence of the decision of this court in [Eliasberg Bros.]” State v. Weil, 232 Ala. at 583, 168 So. at 684. In effect, Amendment No. 25 removed income from the class of property for purposes of taxation and placed it in the class of those privileges subject to excise taxation. 232 Ala. at 583,168 So. at 684.

Since the ratification of Amendment No. 25, the Alabama Constitution has been amended twice to raise the limit on corporate income tax above the three percent limit set in Amendment No. 25. First, in Amendment No. 212, ratified in 1963, the Legislature was granted the power to levy an income tax on corporations “at a rate not exceeding five percent.” More recently, Amendment No. 662, which was ratified in 2000, raised the limit on corporate income tax to a rate of “six and one-half percent on taxable income of corporations for the calendar year 2001, or for any fiscal year beginning in the calendar year 2001, and each year thereafter.”

Today, the Alabama Constitution has at least two specific limitations on taxation: a limit on property taxes contained in Article XI, § 214, Ala. Const.1901, and a limit on income taxation contained in Amendment No. 25 (amended with respect to the taxation of corporate income by Amendment No. 662). These limitations have been a source of frustration for legislators and organizations such as the Alabama Citizens’ Commission on Constitutional Reform (“ACCCR”), who have called for tax increases. Even as late as January 16, 2003, a report published by ACCCR noted that the Constitution of Alabama 1901 imposes limitations on taxation, which ACCCR describes as “regressive”:

“Meanwhile, inclusion in the Constitution of limitations and restrictions upon the type and level of taxes that can be imposed has perpetrated an unduly regressive tax structure. The present Constitution only fosters this regressive tax structure as it caps revenue sources, such as income and property tax, and makes it inefficient and difficult to reform the tax structure in a more efficient manner.”

Report of the Alabama Citizens’ Commission on Constitutional Reform, January 16, 2003, at 7. But this frustration with the taxation limitations imposed by our Constitution cannot serve as an excuse to ignore the plain import of Amendment No. 25, with respect to individual income tax, and Amendment No. 662, with respect to corporate income tax.

11. Amendment No. 25 and Individual Income Taxes

In 1957, the Gadsden Board of Commissioners levied a one percent occupational tax on the “gross receipts” of individuals “for the privilege of engaging in or following any trade, occupation or profession within the corporate limits of the city.” Estes v. City of Gadsden, 266 Ala. 166,169, 94 So.2d 744, 746 (1957). Adopted pursuant to the authority granted the Board of Commissioners by the Legislature to fix and collect licenses on occupations to raise revenue, the ordinance defined “ ‘gross receipts’ ” to include “ ‘all salaries, wages, commissions, bonuses, or other money payment of any kind, or any other consideration having monetary value.’ ” Estes, 266 Ala. at 169, 94 So.2d at 746.

The plaintiffs in Estes asserted that the occupational tax imposed by the Board of Commissioners was, in reality, an income tax, and not a license or privilege tax. 266 Ala. at 171, 94 So.2d at 748. After superficially examining Eliasberg Bros, and citing, but not analyzing, several cases that had dealt with occupation or privilege taxes, the Court erroneously determined that an income tax was distinct from an excise tax on an occupation or business. 266 Ala. at 171, 94 So.2d at 748-49. The Court held that Gadsden’s occupational tax, which was measured on the “gross receipts” of individuals, was not an income tax; rather, “gross receipts” were “merely a manner of measuring the tax.” 266 Ala. at 172, 94 So.2d at 749-50.

In reaching its conclusion, the Estes Court improperly concluded that the distinction made in Eliasberg Bros. — between an income tax and an occupational or privilege tax — was still valid. The Court stated:

“In the case of Eliasberg v. Brothers Mercantile Co. v. Grimes, 204 Ala. 492, 86 So. 56, 59, 11 A.L.R. 300, this court held that income was property within the meaning of § 214 of the constitution and held invalid a graduated tax of two to four percent on incomes imposed by the Revenue Act of 1919. Under the income tax amendment to the constitution in 1933, Amend. No. 25, an income tax was enacted by the state but this court in the Eliasberg case made the distinction between income and property taxes on one hand and occupational or privilege taxes on the other.”

266 Ala. at 171, 94 So.2d at 748-49 (emphasis added).

Yet the 1920 Eliasberg Bros, “distinction” had been eliminated 23 years before Estes was decided — when Amendment No. 25 was passed in 1933. In Weil, decided 16 years after Eliasberg Bros, and 3 years after Amendment No. 25 was ratified, this Court observed:

“Viewing [Amendment No. 25] from the standpoint of common sense, ... in the light of legislative history in respect to income tax, and the interpretation and application of the Constitution thereto, it is reasonably clear that its dominating purpose is to remove net incomes, as a subject of taxation, from the influence of the decision of this court in [Eliasberg Bros.] ..., by taking this subject of taxation, by constitutional mandate, out of the property class, placing it in the class of privileges that are subject to excise taxation.”

232 Ala. at 583, 168 So. at 684 (emphasis added).

For the Estes Court to hold in 1957 that there was still a distinction between an income tax on the one hand and an occupational tax or “privileges ... subject to excise taxation” on the other was error. The Estes Court, relying on the 1920 Eli-asberg Bros, opinion, blatantly ignored the import and effect of Amendment No. 25 to the Alabama Constitution, ratified in 1933, and the 1936 holding in Weil that removed “income,” from the class subject to property taxation and placed it in a class subject to excise taxation. The Estes Court then redefined “occupational taxes” to include a tax on an individual’s gross earnings, in substance the same definition provided by the Legislature for “income” in the enabling tax act passed in conjunction with Amendment No. 25. In other words, because of the Legislature’s broad definition of “income,” the income tax and the occupational tax in Estes were both levied on the same revenue, i.e., gross receipts of an individual’s earnings. Therefore, the Estes Court amended the Alabama Constitution by judicial fiat and allowed a tax on income by way of the occupational tax, which exceeded the limitations of Amendment No. 25.

As the majority opinion in this case points out, Black’s Law Dictionary defines an “occupation tax” as follows: “An excise tax imposed for the privilege of carrying on a business, trade, or profession. For example, many states require lawyers to pay an occupation tax.” Black’s Law Dictionary 1471 (7th ed.1999). An “excise tax” is defined as follows: “A tax imposed on the manufacture, sale, or use of goods (such as cigarette tax), or on an occupation or activity (such as a license tax or an attorney occupation fee).” Black’s Law Dictionary 585. These definitions demonstrate that the category of “excise” taxation is broader than the category of “occupation” taxation and that occupational taxes are within the excise-tax category. Thus, when Amendment No. 25 placed “income” in the class of privileges that are subject to excise taxation, it placed income taxes in the same category of taxation as occupational taxes. The Legislature’s broad definition of income in the enabling tax act enacted pursuant to Amendment No. 25 completed the merger of occupational taxes on gross receipts with income taxes. The Estes Court’s reversion to the defunct distinction between income taxes and excise taxes in essence sanctioned an unconstitutional double tax on income by authorizing occupational taxes on gross receipts.

III. Amendment No. 25 and Corporate Income Taxes

In the 1937 decision of Nachman v. State Tax Commission, 233 Ala. 628, 173 So. 25 (Ala.1937), this Court committed the same error it had committed in Estes— neglecting the effect of Amendment No. 25 concerning “occupational” taxes — this time on businesses. Nachman erroneously held, after Amendment No. 25 had been ratified, that a tax levied on the gross receipts of a business was not an income tax or a property tax. 233 Ala. at 635, 173 So. at 31. To support the proposition, the Court relied primarily on the 1861 case of Lott v. Ross, supra; Lott stated:

“A tax upon the ‘gross amount of sales of merchandise,’ under section 891 of the Code, is not a tax upon the goods themselves, or the fruits of the sale, but upon the business or act of selling. This is not, then, a property or income tax, but an occupation or privilege tax, the amount being regulated by the extent to which the privilege has been enjoyed.”

38 Ala. at 159. Eliasberg Bros, had relied on this same distinction between occupational or privilege taxes and income taxes in striking down a tax levied on the gross receipts of individuals. But, as previously observed, the ratification of Amendment No. 25 had already eliminated this distinction.

Nachman ignored the effect of Amendment No. 25, stating:

“This court more than seventy years ago committed itself to the proposition that a tax upon ‘the gross amount of sales of merchandise’ was not a tax upon the goods themselves, or fruits of sale, but upon the business or act of selling; that it was not a property or income tax, but an occupation or privilege tax, the amount being regulated by the extent to which the privilege has been enjoyed. Lott v. Ross & Co., 38 Ala. 156. This holding has been reaffirmed by this court in numerous decisions since it was first announced in the above-cited case.”

233 Ala. at 635, 173 So. at 31 (emphasis omitted; emphasis added). This conclusion disregards the sweeping definition of “income,” including corporate income, fashioned by the Legislature in the General Revenue Act of 1935, pursuant to Amendment No. 25.

Title 51, § 401, Ala.Code 1940, titled “Gross income defined (corporations),” defined gross income for corporations by referencing the definition of gross income for individuals in Title 51, § 384, Ala.Code 1940, which stated:

“Gross income defined (individual). —■ The term ‘gross income’ as used herein: (1) Includes gains, profits and income derived from salaries, wages or compensation for personal services of whatever kind, or in whatever form paid, including the salaries, income, fees, and other compensation of state, county and municipal officers and employees, or from professions, vocations, trades, business, commerce or sales, or dealings in property whether real or personal, growing out of ownership, or use of or interest in such property; also from interest, royalties, rents, dividends, securities or transactions of any business carried on for gain or profit and the income derived from any source whatever.... ”

(Emphasis added.)

Taxes on income from “commerce or sales ... or transactions of any business carried on for gain or profit” are taxes on the gross receipts of a business. Hence, this definition of corporate income clearly encompassed a tax on the gross receipts of a business, and the rate at which such a tax can be levied was therefore restricted by Amendment No. 25 (as amended by Amendment No. 662). Whether labeled an “occupational” tax or any other name, such a tax is, by definition, an income tax. Thus, Nachman and its progeny, see, e.g., Tillman v. City of Homewood, 374 So.2d 271, 272-73 (Ala.1979), erroneously concluded that a tax levied on the gross receipts of a business is not an income tax.

TV. The Montgomery County Occupational Tax

The majority opinion in this case found that the occupational tax was invalid because it was not levied uniformly under § 40-12-4(b), i.e., corporations were not taxed as were individuals:

“ ‘Employees’ and ‘Owners’ are by definition ‘individuals’ who receive employee compensation or owner compensation, and the occupational tax is imposed only upon that compensation. However, the occupational tax is not imposed upon the compensation of a corporation, an association, a partnership, etc.
“Because the ordinance does not levy the occupational tax uniformly upon the privilege of every ‘individual, association, estate, trust, partnership, corporation, or other entity of any kind’ that receives compensation for engaging in any business or profession, the [Montgomery County] Commission cannot levy the occupational tax under § 4-12-4.”

863 So.2d 73, 80 (Ala.2003).

In essence, the majority held that the tax base for the proposed occupational tax was too small because it did not impose the tax on corporations. The real problem is that any tax was levied either on individual or corporate income exceeding the tax-rate limitations of Amendments No. 25 and No. 662. Neither individuals nor corporations can be taxed on “income,” as that term is defined by the Legislature under Amendments No. 25 and No. 662, above the rate of five percent for individuals and six and one-half percent for corporations. Amendments No. 25 and No. 662 prohibit any such tax!

Today, all occupational tax ordinances relying on Estes or Nachman that levy a tax on the gross receipts of individual earnings or on gross receipts of a business are “income taxes” under Amendments No. 25 and No. 662 and subsequent income tax legislation, and thus are restricted by the Constitution of Alabama, because the State of Alabama already taxes such income at the maximum rate permitted. See §§ 40-18-2, 40-18-13 to -14.3, Ala.Code 1975 (individual income tax); § 40-18-31, Ala.Code 1975 (corporate income tax). Therefore, it is error for this Court to rely on Estes or Nachman or them progeny for the proposition that occupational taxes levied on the gross receipts of an individual’s earnings or on the gross receipts of a business are not income taxes. See, e.g., Parker v. Jefferson County, 796 So.2d 1071, 1074 (Ala.2000); Jolly v. City of Birmingham, 55 Ala.App. 603, 607, 318 So.2d 300, 303 (1975); McPheeter v. City of Auburn, 288 Ala. 286, 292, 259 So.2d 833, 837 (1972).

As the majority reminds us, “ ‘Alabama counties are creatures of statute, and thus “can exercise only that authority conferred on [them] by [the Legislature].” ’ ” 863 So.2d at 76 (quoting Dillard v. Baldwin County Comm’n, 833 So.2d 11, 16 (Ala.2002), quoting in turn Jefferson County v. Johnson, 333 So.2d 143, 145 (Ala.1976)). Because occupational taxes measured on the gross receipts of businesses and/or individuals’ earnings are income taxes, the rate restrictions set out in Amendments No. 25 and No. 662 apply to those occupational taxes. Income taxes are limited by Amendment No. 25 to a rate of five percent on individuals, and by Amendment No. 662 to six and one-half percent on corporations. Consequently, the Legislature lacks the authority to delegate the power to tax individual income at a rate that in the aggregate exceeds five percent and corporate income at a rate that in the aggregate exceeds six and one-half percent; any such purported delegation is therefore void. The Legislature may not give counties what the people of Alabama have reserved to themselves, i.e., the power to tax income at levels above the rates established in the Alabama Constitution.

The ordinance in this case imposes a 1.5 percent tax on the “compensation” of “any Employee and any Owner who engages in or follows any Trade, Occupation or Profession” in Montgomery County. All “compensation” subject to taxation under the occupational tax is already taxed by the Legislature at the “maximum rate” permitted for income tax. Because the occupational tax in this case is levied on the gross receipts of the earnings of individuals, which are already subject to the state’s income tax at the maximum rate pursuant to Amendment No. 25, the occupational tax in this case is prohibited and unconstitutional.

V. Conclusion

This Court must be vigilant in preserving the constitutional boundaries of the state’s power as drawn by the people of Alabama in its constitution. Even the report of the Alabama Citizens’ Commission on Constitutional Reform submitted on January 16, 2003, supra, clearly recognizes that limitations and restrictions on the type and level of taxation can be changed only by a new constitution or by appropriate amendments to the present one.

“Any new or revised Constitution should delegate the taxing power to the appropriate legislative body and should not contain any details or limitations addressing the substantive tax provisions. With respect to tax provisions that affect all Alabamians, the Legislature should have the legal authority to enact substantive tax laws. With respect to local tax rates and levies, the local governing bodies should have power to enact tax measures.... [T]he rate and exemptions specified in Amendment 25 (Maximum Tax Rate) and Amendment 225 (Deductions for Federal Income Tax Paid) should be removed from the State Constitution’ ... [and] ceilings for ad valorem taxes should be removed from the Constitution.”

ACCCR Report, at 8-9 (emphasis added). While, the ACCCR recommends removing all limitations on the taxing power, the ACCCR, nevertheless, recognizes that the wisdom of, and the power to make, such a decision rests firmly in the hands of the people of Alabama. Should the people wish to give counties and municipalities the power to levy additional taxes on income based on an individual’s earnings or on the “gross receipts” of a business, they have the power and authority to do so. The limitation on “income” taxes under Amendments No. 25 and No. 662 and even the restrictions on “property” taxes under § 214 can be removed from our Constitution by the people as surely as they were instituted by the people. But such power is not within the province of the judiciary. As our first President, George Washington, said in his Farewell Address to our Nation on September 17,1796:

“If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

George Washington, Farewell Address (September 17, 1796), XII The Writings of George Washington 226 (Jared Sparks, ed. 1838).

Our first President certainly understood the need to be bound by the Constitution. He not only warned of “irregular oppositions to its acknowledged authority,” but also advised that we “resist with care the spirit of innovation upon its principles, however specious the pretexts.” Farewell Address, 223. This Court is likewise bound by the Alabama Constitution, which can be changed only by the designated amendment process, not by judicial innovation or dilution.

This Court in Eliasberg Bros, recognized the acknowledged authority of the Alabama Constitution when it stated that “income” was “property” and that the limitations on property taxation in § 214 of the Constitution forbade such a tax. That Court “resist[ed] ... the spirit of innovation upon [the Constitution’s] principles” when it declared: “The theory of judicial amendment is exceedingly attractive to our minds and in accordance with our natural inclinations, but it leads to quagmires of trouble into which we cannot safely enter.” Eliasberg Bros., 204 Ala. at 500, 86 So. at 62.

Whatever pretext may be proffered for levying an occupational tax on income, no court may disregard constitutional restrictions in favor of those who would circumvent the Alabama Constitution. “We are ... not at liberty to disregard or restrict the plain meaning of the provisions of the [Alabama] Constitution.” McGee v. Brown, 341 So.2d 141, 143 (Ala.1976). Only the people of the State of Alabama, by amending the current constitution or adopting a new one, possess the authority to change the current tax system in this State.

This Court reached the proper result in this ease by holding the occupational tax levied by the Montgomery County Board of Education invalid. However, this Court should have overruled Estes and based its decision on the Alabama Constitution and on Amendment No. 25. In the future, this Court should declare any occupational tax levied on income of individuals or businesses exceeding the levels authorized by Amendments No. 25 and No. 662 to be a violation of the Alabama Constitution of 1901.

      . Where used herein, the term "Board” shall include the Board of Education and its members.

      . Elmore County appeals the denial of its motion to intervene; however, our decision precludes consideration of that issue.

      . The taxpayers contend that because Ala. Code 1975, § 40-12-4, provides authority to tax, it must be interpreted most strictly against the taxing authority and in favor of all taxpayers. However, the rule regarding strict interpretation in favor of the taxpayer applies only when a "taxing statute” or ordinance is being interpreted. Section 40-12-4 is not a "taxing statute” in that it does not levy a tax; rather, § 40-12-4 merely authorizes counties to enact ordinances that levy taxes. See, e.g., City of Arab v. Cherokee Elec. Coop., 673 So.2d 751, 761 (Ala.1995) ("Taxing statutes must be construed most strictly against the taxing authority and most favorably for the taxpayer.”) (emphasis added); City of Birmingham v. Am-South Bank, N.A., 591 So.2d 473, 477 (Ala.1991) ("A basic rule of statutory construction is that ambiguous tax statutes [and ordinances] are construed against the taxing authority and in favor of the taxpayer.”) (emphasis added).

      . It is undisputed that the funds generated by the occupational tax are to be used solely for public-school purposes.

      . The language that is now found in § 40-12-4(b) was added during the 1969 Regular Session of the Legislature, approximately four months after the enactment of what is now § 40-12-4(a) at the First Extraordinaiy Session of 1969 of the Legislature.

      . Act No. 89, enacted at the Fourth Special Session of 1975 of the Legislature and effective November 13, 1975, provided that counties within a certain population bracket, which included Montgomery County, are “expressly prohibited from levying or collecting any additional occupational or gross proceeds tax, of whatever nature.” (Emphasis added.) The reference in § 2 of Act No. 89 to “additional occupational tax or gross proceeds tax” cannot be used as authority for recognizing an occupational tax under § 40-12-4(b) for two reasons. First, § 1 of Act No. 89 provides that the Act is subject to any limitation of any general law of this State. The limitation against an occupational tax in § 40-12-4(b), being a general law, cannot be overcome by Act No. 89. Second, the reference to "additional” is necessary to accommodate the prospect that the Act, applicable to counties within a specified population bracket, might have a field of operation in a county where an occupational tax might already or in the future exist by a local enabling act.

      . Section 2 of the ordinance provides:

        “It shall be unlawful for any individual to engage in or follow any Trade, Occupation, or Profession on or after the Tax Commencement Date, without paying the [occupational] Tax for the privilege of engaging in or following such Trade, Occupation, or Profession, which [occupational] Tax shall be measured by one and one-half percent (l!4%) of the Compensation of each such individual.”

      . See Act No. 2001-383, Ala. Acts 2001.

      . Black’s Law Dictionary defines an excise tax as: "A tax imposed on the manufacture, sale, or use of goods (such as a cigarette tax), or on an occupation or activity (such as a license tax or an attorney occupation fee),” Black’s Law Dictionary 585 (7th ed. 1999).

      . Black's Law Dictionary defines an ad valo-rem tax as “[a] tax imposed on the value of something (esp. real property).” Black’s Law Dictionary 1469 (7th ed.1999). The amendment also provided certain income tax exemptions.

      . Today, the Legislature continues to define income broadly. See § 40-18-2, 40-18-13 to-14.3, Ala.Code 1975.

      . Mobile Battle House v. City of Mobile, 262 Ala. 270, 78 So.2d 642 (1955); Sanford Serv. Co. v. City of Andalusia, 256 Ala. 507, 55 So.2d 856 (1951); Nachman v. State Tax Comm’n, 233 Ala. 628, 173 So. 25 (1937); and Town of Guntersville v. Wright, 223 Ala. 349, 135 So. 634 (1931).

      . Not coincidentally, Eliasberg Bros, cited Lott for the same distinction regarding individual taxation on income.

      . The current version of this section appears at § 40-18-34, Ala.Code 1975, "Gross Income of Corporations Defined.”

      .The current version of this section appears at § 40-18-14, Ala.Code 1975; § 40-18-14 uses verbatim the language quoted from Title 51, § 384, Ala.Code 1940.

      . The state levies an income tax at a rate of five percent on income in excess of $3,000 for those whose filing status is single, head of family, or married filing separate returns; it levies a five percent tax on income in excess of $6,000 for those whose filing status is married and filing jointly. § 40-18-5, Ala.Code 1975. Therefore, the Montgomery County occupational tax, which levies an additional 1.5 percent tax on ''compensation,” creates an aggregate tax rate on individual income that exceeds the constitutionally permitted rate of 5 percent.

      . The maximum tax rate on corporate income is "six and one-half percent.” § 40-18-31, Ala.Code 1975.