Russell County, Alabama, the Russell County Commissioners and Russell County Administrator, in their official capacities, and the Russell County Commission v. City of Phenix City, Alabama, and Town of Hurtsboro, Alabama (Appeal from Russell Circuit Court: CV-18-900263).

Rel: January 10, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025
____________________

SC-2024-0045
____________________

Russell County et al.

v.

City of Phenix City and Town of Hurtsboro

Appeal from Russell Circuit Court
(CV-18-900263)

PARKER, Chief Justice.

Russell County; the Russell County Commission; the Russell

County Commissioners, in their official capacities; and the Russell

County Administrator, in her official capacity (collectively referred to as
SC-2024-0045

"the County parties"),1 appeal from the Russell Circuit Court's summary

judgment entered in favor of the City of Phenix City ("Phenix City") and

the Town of Hurtsboro ("Hurtsboro") (collectively referred to as "the

municipalities").2 The circuit court entered a judgment declaring that,

although the Alabama Terminal Excise Tax Act ("the ATETA"), § 40-17-

320 et seq., Ala. Code 1975, which became effective October 1, 2012,

repealed Act No. 224, Ala. Acts 1967, 3 it did not repeal a local act relating

to Russell County, Act No. 859, Ala. Acts 1969 ("the local law"), even

though the local law specifically referenced Act No. 224. Because the

ATETA specifically stated that any local legislation governing the

distribution of the proceeds of the excise taxes on gasoline remained in

1The County Commissioners are Peggy Martin, Gentry Lee, Carl

Currington, Chance Corbett, Ronnie Reed, Larry Screws, and Cattie
Epps; the County Administrator is LeAnn Horne.

2Even though the judgment from which the appeal was taken
provided only equitable relief, this Court has jurisdiction over this appeal
because the amount in controversy is $245,761.51, plus interest. Coprich
v. Jones, [Ms. SC-2023-0675, June 21, 2024] ___ So. 3d ___ (Ala. 2024)
(providing that, even when the only relief sought is equitable in nature,
this Court must determine whether the amount in controversy is $50,000
or more).

3Act No. 224 was later codified at §§ 40-17-70, 40-17-73, and 40-

17-74, Ala. Code 1975.
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force, we affirm the circuit court's judgment declaring that the ATETA

did not repeal the local law.

I. Facts

In its judgment, the circuit court noted that the parties had

stipulated to the following facts:

"1. [Act No. 224] was a general law providing for the
'distribution and use of the proceeds of the excise tax levied
on gasoline and other motor fuels by Code of Alabama 1940,
Title 51, Chapter 25, Article 5.'

"2. Section 4 of [Act No. 224] allocated 'fifty-five
percent of the net tax proceeds' for highway purposes to be
used by the counties and municipalities, referred to as the
'local subdivisions' share.' [§ 40-17-70(7), Ala. Code 1975]; [§
40-17-73, Ala. Code 1975.] A portion of the local subdivisions'
share equal to 25 [percent] of the net tax proceeds was
allocated equally among the 67 counties. The entire residue of
the amount (i.e. 30 [percent] of the net tax proceeds, less any
amount paid pursuant to a contingent appropriation not at
issue in this case), was then divided amongst the counties
proportionally according to population.

"3. Section 5 of [Act No. 224] provided that the
amounts allocated to each county were to be divided between
the county and municipalities in the county, with 10 [percent]
allocated among the municipalities proportionally according
to population. [§ 40-17-74, Ala. Code 1975.]

"4. [The local law] was then passed that 'authorized
and directed' the governing body of Russell County 'to
appropriate and set aside ten percent of the county's share of
the state gasoline excise tax provided for by [Act No. 224], to

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be distributed to the several incorporated municipalities in
the county on the basis of the ratio of the population of each
municipality to the total population of all municipalities in
the county according to the most recent federal decennial
census.'

"5. [The ATETA,] effective October 1, 2012, revised
the motor fuel tax collection and enforcement system, and
repealed inter alia, … §§ 40-17-[7]0, 40-17-73, and 40-17-74.

"6. [The ATETA] imposed multiple separate taxes on
fuel, including a seven cents ($.07) excise tax, a supplemental
five cents ($.05) excise tax, and an additional six cent ($.06)
excise tax. [§ 40-17-325(a)(1), Ala Code 1975.]

"7. [The ATETA] provides that 55 [percent] of the 'net
tax proceeds' are 'allocated and appropriated to be used for
highway purposes by the counties and municipalities.' § 40-
17-359(d), Ala. Code 1975. The 'net tax proceeds' are defined
as the 'entire proceeds from the highway gasoline tax, except
the proceeds from the supplemental excise tax of five cents
($.05) per gallon and additional six cents ($.06) imposed by
subdivision (1) of subsection (a) of Section 40-17-325, less the
cost of collection and less any refunds pursuant to the
provisions of this article.' [§ 40-17-359(a)(9).]

"8. Twenty-five percent of the net tax proceeds are to
be allocated equally, with the remainder allocated 'on the
basis of the ratio of the population of each county to the total
population of the state…' [§ 40-17-359(d).]

"9. Ten percent of the amount allocated to each county
'shall be distributed among the municipalities in the county'
according to population, and '[t]he remaining portion of the
amount so allocated or apportioned to each county shall be
distributed to the county with respect to which the allocation
or apportionment is made.' [§ 40-17-359(e)(1).]

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"10. [The ATETA] also provides for distribution of
revenues of the 'supplemental net tax proceeds,' which
represent a portion of the revenues collected from
supplemental taxes levied under Section 6 of the [ATETA],
now codified at [§ 40-17-325(a)(1)], as follows, in relevant part:

" 'The remaining two-fifths of the supplemental net
tax proceeds shall be distributed, as provided for
distribution of the net tax proceeds, according to
subsections (c), (d), and (e). Any local laws or
general laws of local application now in effect
regarding the distribution of the tax levied by [§]
40-17-325 shall govern the distribution of the
amounts allocated or apportioned within every
county by this section. The Legislature may by
general or local laws prescribe other distributions
within counties to local governments.'

"[§ 40-17-359(f).]

"11. From October 1, 2012, until May 24, 2017, Russell
County continued to distribute 10 [percent] of its allocation of
both the net and supplemental net tax proceeds under § 40-
17-325 (ATETA) to the City of Phenix City and the City of
Hurtsboro, according to their respective populations.

"12. At the June 14, 2017, Russell County Commission
meeting, then-County Attorney Funderburk recommended
not making further payments to any municipality in Russell
County from the County's allocation of the gasoline tax
proceeds. The Russell County Commission unanimously
approved this recommendation and has not made any
additional distributions to a municipality of the net or
supplemental net tax proceeds."

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In August 2018, Phenix City commenced an action against Russell

County; the County Commissioners, in their official capacities; and the

County Administrator, in her official capacity. In the complaint, Phenix

City sought (1) a writ of mandamus directing Russell County to pay it 10

percent of the county's share of the proceeds of the excise tax in

accordance with the provisions of the local law; (2) a judgment declaring

that it was entitled to that 10-percent share; and (3) a permanent

injunction requiring the defendants to pay it that 10-percent share. In

response, the defendants asserted numerous affirmative defenses.

Russell County and the Russell County Commission also asserted a

counterclaim seeking a judgment declaring that Phenix City was not

entitled to 10 percent of the county's share of the proceeds of the excise

tax because, they said, the excise tax had been repealed by the ATETA.

They also asserted counterclaims for money had and received and unjust

enrichment. Hurtsboro intervened to assert its rights under the local law.

In February 2023, the County parties moved for a partial summary

judgment. In that motion, they sought a summary judgment on all of the

municipalities' claims against them. They also sought a summary

judgment on their counterclaims against the municipalities, with the

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amounts in controversy on the claims for money had and received and

unjust enrichment to be decided later. Phenix City also moved for a

summary judgment in its favor on all claims. On January 10, 2024, after

a hearing on the County parties' motion, the circuit court entered a

summary judgment on all claims in the municipalities' favor. The County

parties appeal.

II. Standard of Review

" 'An order granting or denying a summary judgment is
reviewed de novo, applying the same standard as the trial
court applied. American Gen. Life & Accident Ins. Co. v.
Underwood, 886 So. 2d 807, 811 (Ala. 2004). In addition,
"[t]his court reviews de novo a trial court's interpretation of a
statute, because only a question of law is presented." Scott
Bridge Co. v. Wright, 883 So. 2d 1221, 1223 (Ala. 2003).
Where, as here, the facts of a case are essentially undisputed,
this Court must determine whether the trial court misapplied
the law to the undisputed facts, applying a de novo standard
of review. Carter v. City of Haleyville, 669 So. 2d 812, 815
(Ala. 1995). Here, in reviewing the [entry] of a summary
judgment when the facts are undisputed, we review de novo
the trial court's interpretation of statutory language and our
previous caselaw on a controlling question of law.' "

McKinney v. Nationwide Mut. Fire Ins. Co., 33 So. 3d 1203, 1206-07 (Ala.

2009) (quoting Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033,

1034-35 (Ala. 2005)).

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III. Analysis

The County parties present several arguments as to why the circuit

court erred in entering a summary judgment for the municipalities. First,

they contend that the local law is void because it specifically referenced

Act No. 224, which the ATETA repealed. Second, they contend that the

circuit court erred in ruling that the ATETA was a continuation of Act

No. 224 because the ATETA expressly repealed Act No. 224. Third, they

contend that the ATETA repealed the local law by implication. We

address each argument in turn.

A. The local law specifically refers to Act No. 224.

The local law reads as follows: "Russell County is hereby authorized

and directed to appropriate and set aside ten percent of the county's share

of the state gasoline excise tax provided for by Act No. 224 …." The

County parties contend that the ATETA implicitly repealed the local law

because of this specific reference to Act No. 224 and that the local law

applies only to the county's share of the proceeds of the Alabama gasoline

excise tax, as set forth in the distribution scheme established in Act No.

224.

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The County parties' argument rests on the distinction this Court

has drawn between specific-reference statutes and general-reference

statutes:

"[A] specific reference statute is one 'where the adopting
statute incorporates an earlier statute or a particular
provision thereof by a specific and descriptive reference
thereto,' e.g. by employing a statutory citation or the specific
title to an act. A general reference statute is one which 'refers
generally to the law relating to or governing the subject under
consideration.' Specific reference statutes 'only incorporate
the adopted statutes in existence at the time of the enactment
of the adopting statute and do not prospectively include
subsequent modifications or additions to the general subject
adopted.' General reference statutes, on the other hand,
'(include) not only the law in force at the time the adopting act
became effective, but also later legislation on the subject.' "

Shelby Cnty. Comm'n v. Smith, 372 So. 2d 1092, 1094 (Ala. 1979)

(citations omitted).

The local law referenced two statutory provisions. First, it

referenced the "state gasoline excise tax," which includes all statewide

excise taxes levied on the sale of gasoline. Second, it referenced Act No.

224, which governed the distribution of the state gasoline excise tax.

Insofar as the local law referred to the "state gasoline excise tax,"

the local law is a general-reference statute. Although the local law

immediately adds the phrase "provided for by Act No. 224," that phrase

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cannot modify "state gasoline excise tax" because Act No. 224 does not

levy a gasoline excise tax at all. Rather, the phrase "provided for by Act

No. 224" modifies the term "county's share."

When the local law was enacted in 1969, the gasoline excise tax was

imposed under Ala. Code 1940 (1958 Recomp.), Title 51, § 647. When the

local law referenced that tax, it did so in general terms rather than by

referencing that section. Accordingly, the local law's reference to the

"state gasoline excise tax" was a general reference.

At the time the local law was enacted, Alabama's gasoline excise

tax was a single tax. When the Legislature enacted the ATETA, it

imposed a tax of "[e]ighteen cents ($.18) per gallon on gasoline, which is

comprised of a seven cents ($.07) excise tax, a supplemental five cents

($.05) excise tax, and an additional six cent ($.06) excise tax." § 40-17-

325(a)(1), Ala. Code 1975. Nevertheless, because the local law generally

referenced the "state gasoline excise tax," the fact that the ATETA

imposes multiple excise taxes on the sale of gasoline rather than the

single excise tax in effect at the time the local law was enacted does not

affect the validity of the local law. Accordingly, the local law applies to

the gasoline excise taxes collected under the ATETA just as much as it

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did to the single gasoline excise tax in effect when the local law was

enacted.

By contrast, when the local law referred to the "county's share" of

the proceeds of the gasoline excise tax, it referenced Act No. 224 by its

statutory citation. Based on that reference, the County parties urge us to

construe the local law as a specific-reference statute that incorporates

only Act No. 224's distribution scheme as it existed in 1969, not

subsequent revisions to the distribution scheme found in the ATETA. As

a result, the County parties contend that, because the sections of the

Alabama Code that codified Act No. 224 (see note 3, supra) were

expressly repealed by the ATETA, the distribution scheme that the local

law incorporated is no longer in effect and, therefore, the local law is

defunct because there is no longer a field of operation for it.

The County parties' argument is somewhat persuasive on its face if

the specific-reference canon is taken as an absolute rule. However, from

time to time it is good to be reminded that "[n]o canon of statutory

interpretation is absolute. Each may be overcome by the strength of

differing principles that point in other directions." Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, p. 59

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(Thomson/West 2012). Accordingly, although the County parties are

likely correct that the local law specifically refers to Act No. 224, we are

not absolutely bound to give the local law the effect of incorporating Act

No. 224's scheme for distributing the proceeds of the gasoline excise tax,

to the exclusion of later amendments to that scheme, if we conclude that

provisions of the ATETA point in the other direction. As one commentator

has noted, "[f]acially specific references can, and sometimes do, operate

as general legislative references." 2B Norman J. Singer & J.D. Shambie

Singer, Statutes and Statutory Construction § 51.8 (7th ed. 2012).

Here, we conclude that application of the specific-reference canon

is outweighed by the fact that certain provisions within the ATETA

assume, as a premise, that local legislation in existence at the time the

ATETA was enacted continued to apply to gasoline excise taxes levied

under the ATETA. As the circuit court noted, § 40-17-359(f) and (p)(2)c.1.,

Ala. Code 1975, provide that "[a]ny local laws or general laws of local

application now in effect regarding the distribution of the tax levied by

Section 40-17-325 shall govern the distribution of the amounts allocated

or apportioned within every county by this section."

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As noted above, the local law was a general-reference statute

insofar as it referred to the "state gasoline excise tax." As a result, the

local law incorporated whatever state gasoline excise tax might be in

effect at any given time. Accordingly, the local law incorporated the

gasoline excise taxes levied by § 40-17-325. Further, the local law was in

effect at the time the ATETA was enacted. Accordingly, the local law was

a "local law[] … now in effect regarding the distribution of the tax levied

by Section 40-17-325."

The County parties contend that the local law could not be

considered a "local law[] … now in effect regarding the distribution of the

tax levied by Section 40-17-325." The County parties contend that the

only local laws that could govern the distribution of the tax levied by §

40-17-325 are local laws that generally refer to the Alabama gasoline

excise tax or local laws that specifically reference that section. But as

pointed out above, the local law does generally refer to the "state gasoline

excise tax." Accordingly, the local law incorporates later revisions to the

gasoline excise tax, including the ATETA's revisions. Thus, under the

County parties' own argument, the local law governs the distribution of

the proceeds of the gasoline excise taxes levied in § 40-17-325.

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The County parties also contend that, even if the provisions of § 40-

17-359 cited above do incorporate the local law, the local law applies only

to the distribution of the proceeds of the supplemental and additional

gasoline excise taxes, not to the primary gasoline excise tax. However,

under those provisions, the local law would apply to the supplemental

and additional gasoline excise taxes only if it "regard[s] the distribution

of the tax levied by Section 40-17-325." Accordingly, the County parties'

argument that those provisions incorporate the local law only as to the

supplemental and additional gasoline excise taxes rests on the premise

that the local law governs the distribution of the taxes levied by the

ATETA. If that premise is true, then the local law applies to the proceeds

of all the gasoline excise taxes imposed by § 40-17-325, including the

primary gasoline excise tax. Accordingly, the County parties' alternative

argument that the local law applies only the supplemental and additional

gasoline excise taxes fails.

In summary, the ATETA specifically provides that local laws that

govern the distribution of the proceeds of the gasoline excise taxes levied

by the ATETA remain in force. The local law generally incorporates

Alabama's gasoline excise tax, including the taxes levied by the ATETA.

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Moreover, the ATETA itself recognizes that the local law remains in force

and governs the distribution of the proceeds of the gasoline excise taxes

levied by ATETA. Accordingly, we conclude that the circuit court did not

err in declining to construe the local law as a specific-reference statute.

B. The ATETA was a continuation of Act No. 224.

Next, the County parties contend that the circuit court erred in

holding that the ATETA was a continuation of Act No. 224 because, the

circuit court determined, the ATETA immediately replaced Act No. 224

in substance. In its judgment, the circuit court relied on American

Standard Life Insurance Co. v. State, 226 Ala. 383, 147 So. 168 (1933),

and Allgood v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 71 So. 724

(1916), in which this Court held that " '[t]he repeal and simultaneous re-

enactment of substantially the same statutory provisions is to be

construed not as implied repeal of the original statute, but as [an

affirmance and] a continuation thereof.' " American Standard, 226 Ala. at

384, 147 So. at 168 (quoting Allgood, 196 Ala. at 502, 71 So. at 725).

The County parties contend that the rule that a statute that repeals

and immediately replaces a prior statute is a continuation of the prior

statute applies only when the prior statute is repealed by implication.

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When a statute expressly repeals a prior statute, however, the County

parties contend, the new statute is not a continuation of the prior statute

even though its provisions are substantially identical. The County

parties contend that the circuit court ignored the plain meaning of the

ATETA, which expressly repealed §§ 40-17-70, 40-17-73, and 40-17-74,

Ala. Code 1975, in which the provisions of Act No. 224 were codified.

In support of their argument, the County parties emphasize the

statement in both American Standard and Allgood that repeal and

reenactment is not to be construed as an implied repeal of the original

statute. American Standard, 226 Ala. at 384, 147 So. at 168; Allgood, 196

Ala. at 502, 71 So. at 725. The County parties point out that neither

American Standard nor Allgood concerned statutes that contained

explicit repealer clauses. Instead, the County parties rely on Tucker v.

McLendon, 210 Ala. 562, 564, 98 So. 797, 799 (1924), in which this Court

stated that "[a] repealing clause will be given effect according to its

express terms."

However, a careful reading of American Standard and Allgood, and

the authorities on which those cases relied, shows that even a statute

that expressly repeals a prior statute may be construed as a continuation

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of the prior statute if the repealing statute immediately reenacts the

provisions of the prior statute. Both this Court in Allgood and the circuit

court here cited the following commentary:

"It seems, indeed, to be the general understanding that the re-
enactment of an earlier statute is a continuance, not a repeal
of the latter, even though the later act expressly repeals the
earlier. ... [E]ven a repealing act re-enacting the provisions of
the repealed statute, in the same words, is construed to
continue them in force without intermission; the repealing
and re-enacting provisions taking effect at the same time."

Gustav Adolf Endlich, Commentaries on the Interpretation of Statutes §

490 (1888) (emphasis added).

Thus, contrary to the County parties' argument, the fact that the

ATETA expressly repealed the sections of the Alabama Code that codified

Act No. 224 does not end the matter; we must examine whether the

ATETA's distribution provisions were substantially identical to those of

Act No. 224. We conclude that they were.

As the municipalities point out, both distribution schemes allocated

45 percent of the proceeds of gasoline excise taxes to the State. Act No.

224, § 3; § 40-17-359(c). Both distribution schemes allocated 55 percent

of the net tax proceeds to the counties in Alabama for use by local

governments. Act No. 224, § 4; § 40-17-359(d). Under both schemes, 10

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percent of the amount allocated to each county was to be distributed

among the municipalities in that county. Act No. 224, § 5(a); § 40-17-

359(e)(1).

The differences between the distribution schemes in Act No. 224

and the ATETA are inconsequential. Most of the differences are stylistic.

The main substantive differences between the two statutes regarding a

county's share of the proceeds of gasoline excise taxes are as follows:

• § 40-17-359(d) of the ATETA removes Act No. 224, § 4(a)'s

contingent allocation of net tax proceeds for payment of the

principal and interest on bonds issued by the Alabama Highway

Finance Corporation.

• § 40-17-359(e)(1)b. of the ATETA provides that distributions from

counties to municipalities shall be made monthly.

• § 40-17-359(e)(3) of the ATETA removes Act No. 224's requirement

that a municipality submit a plan for the use of the proceeds of

gasoline excise taxes to the Alabama Highway Department before

those proceeds can be distributed to that municipality.

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• § 40-17-359(f) of the ATETA provides for the distribution of

proceeds of the supplemental gasoline excise tax imposed by § 40-

17-325(a)(1).

• § 40-17-359(g) and (h) of the ATETA provide that salaries of

members of county governing bodies and the clerks of county

commissions may be paid in part with the proceeds of gasoline

excise taxes.

• § 40-17-359(j)(3) of the ATETA prohibits municipalities from

commingling the proceeds of gasoline excise taxes with other funds.

• § 40-17-459(k) and (l) of the ATETA provide that a county may use

the proceeds of gasoline taxes to construct and maintain roads and

streets within municipalities in that county and to construct and

maintain highways and traffic-control areas on public-school

property.

• § 40-17-459(p) of the ATETA provides for the distribution of

proceeds from the additional gasoline excise tax imposed by § 40-

17-325(a)(1).

None of those differences substantially alters the "county's share"

of the proceeds of gasoline excise taxes. Even the sections of the ATETA

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that provide for the distribution of the proceeds from the supplemental

and additional gasoline excise taxes essentially follow the distribution

scheme applicable to the primary gasoline excise tax. The fact that the

ATETA made several changes regarding the permitted uses of the

proceeds of the gasoline excise taxes and removed certain conditions on

the distribution of those proceeds to municipalities does not mean that

the "county's share" of the proceeds of the gasoline excise taxes is any

different under the ATETA than it was under Act No. 224.

The County parties also argue that interpreting an entirely new

statutory scheme, rather than an amendment of an existing statute, as a

mere reenactment of a prior statute is not favored. In support of that

argument, they cite Pinigis v. Regions Bank, 977 So. 2d 446, 452 (Ala.

2007), which in turn quoted Matter of Stein, 131 A.D.2d 68, 72, 520

N.Y.S.2d 157, 159 (App. Div. 1987), for the following propositions:

" 'When the Legislature amends a statute, it is presumed that
the amendment was made to effect some purpose and make
some change in the existing law.... By enacting an amendment
of a statute and changing the language thereof, the
Legislature is deemed to have intended a material change in
the law.... Moreover, a statute will not be held to be a mere
reenactment of a prior statute if any other reasonable
interpretation is attainable ....' "

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Nothing in Pinigis's quotation from Stein supports the County parties'

assertion that continuation by reenactment is disfavored when the

Legislature replaces a statute with an entirely new statutory scheme.

Although Pinigis does indicate that continuation by repeal and

reenactment is disfavored if there is another reasonable interpretation,

it says nothing about repeal and replacement by a new statutory scheme.

Finally, the County parties fall back on their argument that the

local law was a specific-reference statute. They contend that, even if the

ATETA were a continuation of Act No. 224, the local law would not

incorporate the ATETA's changes to Act No. 224. But, as discussed above,

there are several considerations that weigh against construing the local

law as a specific-reference statute.

In summary, although the ATETA substantially altered the state

excise tax levied on the sale of gasoline, it did not substantially alter Act

No. 224's distribution scheme. The ATETA's immediate replacement of

the sections of the Alabama Code that codified Act No. 224 with

substantially identical provisions in the ATETA indicates that the

ATETA is a continuation of Act No. 224.

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C. The ATETA did not repeal the local law by implication.

Next, the County parties contend that the ATETA repealed the

local law by implication. This Court has long recognized a presumption

against repeal by implication. In its judgment, the circuit court relied on

the following portion of this Court's decision in Day v. Morgan County

Commission, 487 So. 2d 856 (Ala. 1986):

" '[T]he policy against implied repeals has peculiar and special
force when the conflicting provisions, which are thought to
work a repeal, are contained in a special or specific act and a
later general or broad act. In such case, there is a presumption
that the general or broad law was not designed to repeal the
special or specific act, but that the special or specific act was
intended to remain in force as an exception to the general or
broad act, and there is a tendency to hold that where there
are two acts, one special or specific act which certainly
includes the matter in question, and the other a general act
which standing alone would include the same matter so that
the provisions of the two conflict, the special or specific act
must be given the effect of establishing an exception to the
general or broad act. Hence, it is a canon of statutory
construction that a later statute general in its terms and not
expressly repealing a prior special or specific statute, will be
considered as not intended to affect the special or specific
provisions of the earlier statute, unless the intention to effect
the repeal is clearly manifested or unavoidably implied by the
irreconcilability of the continued operation of both, or unless
there is something in the general law or in the course of
legislation upon its subject matter that makes it manifest that
the legislature contemplated and intended a repeal. Unless
there is a plain indication of an intent that the general act
shall repeal the special act, the special act will continue to

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have effect, and the general words with which it conflicts will
be restrained and modified accordingly, so that the two are to
be deemed to stand together, one as the general law of the
land, and the other as the law of the particular case.' "

487 So. 2d at 859 (citations omitted).

The circuit court noted that the ATETA did not expressly repeal the

local law. The circuit court also observed that the ATETA and the local

law were not irreconcilable. It reasoned that, although the ATETA

expressly stated the Legislature's intent to "establish an efficient,

uniform, motor fuel tax collection and enforcement system," § 40-17-321,

Ala. Code 1975 (emphasis added), it did not substantially alter the

scheme by which the proceeds of that tax are distributed. The circuit

court noted that the ATETA does not preclude a distribution from a

county to municipalities within that county in addition to the distribution

provided for in the ATETA. Accordingly, the circuit court applied the

presumption against repeal by implication.

The County parties contend that the circuit court erred in applying

the presumption against repeal by implication because, they assert, the

ATETA was a comprehensive revision of Alabama's gasoline-excise-tax

scheme. They rely on Pittsburg & Midway Coal Mining Co. v. Tuscaloosa

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County, 994 So. 2d 250 (Ala. 2008), in which this Court held that the

Local Tax Simplification Act of 1998 ("the LTSA"), Act No. 98-192, Ala.

Acts 1998, was a comprehensive revision of the statutory scheme

pertaining to a particular subject and, thus, that it repealed prior local

acts. They contend that the ATETA similarly did so. However, a careful

reading of Pittsburg & Midway shows that the ATETA was not so

comprehensive as to allow repeal by implication.

In Pittsburg & Midway, this Court quoted the same portion of Day

that the circuit court quoted and that we have quoted above. It also

quoted another portion of Day that included the following paragraphs

from Statutes and Statutory Construction:

" ' "The enactment of a general law broad enough in its
scope and application to cover the field of operation of a
special or local statute will generally not repeal a statute
which limits its operation to a particular phase of the subject
covered by the general law.... An implied repeal of prior
statutes will be restricted to statutes of the same general
nature, since the legislature is presumed to have known of the
existence of prior special or particular legislation, and to have
contemplated only a general treatment of the subject matter
by the general enactment. Therefore, where the later general
statute does not present an irreconcilable conflict the prior
special statute will be construed as remaining in effect as a
qualification of or exception to the general law.

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" ' "However, since there is no rule of law to prevent the
repeal of a special [statute] by a later general statute, prior
special or local statutes may be repealed by implication from
the enactment of a later general statute where the legislative
intent to effectuate a repeal is unequivocally expressed. A
repeal will also result by implication when a comprehensive
revision of a particular subject is promulgated, or upon the
predication of a statewide system of administration to replace
previous regulation by localities." ' "

994 So. 2d at 261 (quoting Day, 487 So. 2d at 858-59, quoting in turn

Sutherland, Statutes and Statutory Construction § 23.15 at 245 (Sands

4th ed. 1985)) (emphasis omitted). This Court concluded that the LTSA

manifestly repealed the local legislation at issue in that case because the

LTSA was enacted to bring uniformity to local taxing systems. This Court

further noted that the LTSA specifically referred to the types of special

and local acts that it did not repeal or amend.

Here, although the ATETA was a comprehensive revision of

Alabama's gasoline-excise-tax scheme, it was not enacted to institute a

uniform statewide system in an area that had been previously subject to

local regulation. Distribution of the proceeds of gasoline excise taxes was

the subject of statewide legislation before the ATETA; the ATETA was

designed to bring uniformity to the State collection and enforcement

system, not necessarily to the local distribution system. Indeed, the

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ATETA expressly contemplates diversity in the distribution of the

proceeds of gasoline excise taxes to local-government entities. The

ATETA specifically provides that "the Legislature may by general or local

laws prescribe other distributions within counties to local governments."

§ 40-17-359(p)(2)c.1.

The County parties contend that, even if the ATETA contemplates

local variation in the distribution of the proceeds of gasoline excise taxes,

it does so only with regard to the supplemental and additional gasoline

excise taxes, not the primary gasoline excise tax. The County parties note

that the only provisions of the ATETA recognizing local variation are

those provisions distributing the proceeds of the supplemental and

additional gasoline excise taxes. They contend that, unless there is an

express provision in a general law that allows local variation, local

legislation is prohibited. In support of that argument, they cite Jefferson

County v. Braswell, 407 So. 2d 115, 119 (Ala. 1981). In that case, this

Court held that local legislation did not violate the constitutional

prohibition in § 105, Ala. Const. 1901, against a local law addressing the

same "case or matter" as a general law. But our decision in that case was

not based on a provision in a general statute permitting local variation.

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In that case, we noted that § 104, Ala. Const. 1901, specifically permitted

local variation regulating or prohibiting the sale of liquor. Here, although

there does not appear to be an express constitutional provision allowing

local variation in the distribution of the proceeds of excise taxes, this

Court has repeatedly held that local legislation appropriating tax

proceeds does not violate § 105. Barnett v. Jones, 338 So. 3d 757 (Ala.

2021); Drummond Co. v. Boswell, 346 So. 2d 955 (Ala. 1977). Regardless,

nothing in Jefferson County supports the County parties' argument that

a general statute must specifically authorize local legislation in order for

local legislation to apply.

In addition to the fact that the ATETA contemplated local

legislation, we further note that the ATETA specifically provides that

local legislation regarding the distribution of the proceeds of gasoline

excise taxes continues in force. As discussed above, § 40-17-359(f) and

(p)(2)c.1. provide that "[a]ny local laws or general laws of local application

now in effect regarding the distribution of the tax levied by Section 40-

17-325 shall govern the distribution of the amounts allocated or

apportioned within every county by this section."

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For these reasons, the fact that the ATETA was a comprehensive

revision of Alabama's gasoline-excise-tax scheme does not mean that it

was so comprehensive as to repeal the local law by implication. Rather,

the ATETA itself contemplates local variation regarding the distribution

of the proceeds of gasoline excise taxes.

IV. Conclusion

For these reasons, we affirm the circuit court's judgment.

AFFIRMED.

Wise and Stewart, JJ., concur.

Mitchell, J., concurs in part and concurs in the result, with opinion.

Shaw, Bryan, Sellers, Mendheim, and Cook, JJ., concur in the

result.

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MITCHELL, Justice (concurring in part and concurring in the result).

I agree with the main opinion that Act No. 859, Ala. Acts 1969 ("the

local law"), is, in part, a general-reference statute and that the local law

therefore applies to the tax levied under the Alabama Terminal Excise

Tax Act, § 40-17-320 et seq., Ala. Code 1975 ("the ATETA"). I also agree

that § 40-17-359(f), Ala. Code 1975, preserves the local law and that the

ATETA did not implicitly repeal the local law. Consequently, I agree that

the Russell County Commission is still obligated to provide the

municipalities in Russell County with 10 percent of its share of revenues

collected under the ATETA. Because this analysis is sufficient to affirm

the decision below, I decline to join the remainder of the opinion.

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