126 So. 308 | Fla. | 1930
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *3 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *4 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *5 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *6 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *7 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *8 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *9 These causes bring before us for consideration the validity of two statutes passed at the extraordinary legislative session of 1929, namely, Chapter 14486, known as Senate Bill One, and Chapter 14575, known as Senate Bill Five, both approved by the Governor on June 21, 1929.
These two Acts are cognate parts of a single purpose — the liquidation and retirement of designated road and bridge bonds — in the accomplishment of which purpose the provisions of the two Acts are inextricably interrelated. They should therefore be construed in pari materia as one enactment. Curry v. Lehman,
Chapter 14575 (Senate Bill Five) levies two primary excise taxes, the first "a license tax of five dollars to the State" to be paid by every dealer in gasoline; and the second, "in addition thereto a tax, herein termed gas tax, of five cents per gallon for every gallon of gasoline * * * sold, * * * said tax of five cents per gallon being made up of four 'separate' taxes * * *" as follows:
First gas tax: Two cents per gallon for use of the State Road Department. Neither this tax, nor the five dollar license tax upon dealers which is required to be paid "to the State," is under attack in this litigation.
Second gas tax: One cent per gallon to be apportioned to the several counties "in the proportion collected in such counties respectively."
Third gas tax: One cent per gallon to be apportioned to the several counties in proportion that the bonded indebtedness *11 of such county for roads and bridges, including special tax road and bridge districts, bears to the bonded indebtedness of like character of all the counties of the State. In other words, this apportionment is according to the proportion of bonded road and bridge indebtedness of the several counties, in computing which the bonded indebtedness of special tax road and bridge districts in such counties is included. Expenditure of the proceeds of the second and third gas taxes is restricted by the statutes (with an exception not material here) to the payment of existing bonded indebtedness of counties and special tax road and bridge districts incurred for the building of public roads and bridges and for which bonds were issued and outstanding on April 1, 1929. It is unnecessary to consider in this controversy whether or not such funds may be applied upon bonds authorized for the purpose of refunding the bonds just above mentioned.
The proceeds of the second and third gas taxes never reach the hands of local county or district officers. Such funds are collected under the supervision of the Comptroller and are disbursed by the State Treasurer directly to the paying agencies for the bonds, or to the holders thereof. In making such disbursements, however, the State Treasurer acts as "County Treasurer ex officio."
Fourth gas tax: One cent per gallon to be apportioned equally amongst the several counties, two-thirds of which shall be "used for school purposes" and one-third for the construction of roads and bridges "in the county to which it is apportioned." When collected by State officials, the fourth gas tax is paid over to local county officials to be disbursed by the latter as directed by the statute.
Amongst other things, Chapter 14486 (Senate Bill One) provides that: (a) "It is hereby declared by the Legislature of the State of Florida that all roads, highways and *12 bridges which have heretofore been constructed or built, in whole or in part, from the proceeds of bonds issued by the counties of the State of Florida, or from the proceeds of bonds issued by Special Road and Bridge Districts under the laws authorizing same, have been and are, and will continue to be beneficial to the State of Florida at large, and have contributed substantially to the general welfare, settlement and development of the entire State." (b) It requires local bond trustees theretofore charged with the administration of sinking funds of county and district bonds issued for the construction of roads and bridges to turn over to the State Treasurer, as County Treasurer ex officio, all funds and securities under the control of said Trustees, together with their records relating thereto, to be held by the State Treasurer, as County Treasurer ex officio, for the benefit of the respective counties and districts, such funds to be kept in separate accounts. (c) That all bonds of the character under consideration shall remain the obligations of the counties and districts issuing them. (d) It authorizes the issuance of refunding bonds under certain circumstances, subject to the approval of the Board of Administration hereafter mentioned. (e) "For the purpose of administering the provisions of the Act, and such money as is available by law," the Act creates a Board of Administration consisting of the Governor, State Comptroller and State Treasurer. (f) The Treasurer is required to keep a separate account for each county and road district of all monies received from the local trustees as sinking funds, which accounts are sometimes termed sinking fund accounts; and also to keep separate accounts for each county of all monies received for and applicable to the credit of such county from any tax upon gasoline applicable to the bonds of such county, which includes gas taxes two and three levied by *13 Chapter 14575 (Senate Bill Five), or received from any personal property tax on motor vehicles similarly applicable. (g) The Board of Administration is required annually on or before June 1st to estimate the amount of money available to the several counties and districts for the next fiscal year from each of the sources just mentioned, and to give notice to the several Boards of County Commissioners, and to district officials, of the amounts available to them respectively. In arriving at the amount so available to the several participating subdivisions, the Board shall first apply moneys in the several sinking fund accounts. If those funds are not sufficient to meet current requirements in any county the Board shall next apply any moneys available, or estimated to become available, to the credit of that county from gas taxes and personal property taxes on motor vehicles. In apportioning the amounts so available to the several counties and districts from sources other than the sinking fund accounts, the Board is required to apportion to each county or district such proportion of the available funds as the amount of the participating bonds of that particular subdivision bears to the aggregate amount of all participating bonds to which the proceeds of the taxes are applicable, that is, in proportion to the participating bonded indebtedness. It may be here remarked parenthetically that the last mentioned apportionment would apparently include funds arising from the second gas tax, and would therefore be in conflict with the apportionment of that particular tax provided for in Senate Bill Five, which is "in proportion collected in the several counties." If the amount available from the sources mentioned is sufficient to meet all maturing principal and interest and sinking fund requirements during any fiscal year, no ad valorem tax shall be levied by the local officers for that purpose in that year. If the amount *14 so available is not sufficient for the purposes stated, then the local county or district officials shall levy a sufficientad valorem tax in the respective counties or districts to make up the deficit. The proceeds of any such ad valorem tax so levied shall be remitted monthly by the local county officials to the State Treasurer, as County Treasurer, ex officio, to be disbursed by him for the benefit of such county or district. See Secs. 14 and 16. (h) The Act expressly declares that its provisions are intended for the benefit of taxpayers and property owners of the State, and for the purpose of rendering assistance to the several agencies which have already performed a part of the functions resting on the State in the construction of roads, and that it is not the purpose or intention of the Act to obligate the State, directly, indirectly or contingently, for the payment of any of the bonds referred to.
Neither Chapter 14573, Acts of 1929, levying an additional or sixth cent tax per gallon upon gasoline for educational purposes, nor Chapter 14574, Acts of 1929, requiring the collection of an ad valorem tax on automobiles, the proceeds of which are to be administered by said Board of Administration and applied to the payment of bonds of the character hereinabove referred to, are involved in this litigation.
Two suits have been filed in which the constitutionality of Senate Bills One and Five are questioned. One is a taxpayers suit brought in the Circuit Court of Leon County by the appellee John E. Mathews seeking an injunction against the Comptroller and Treasurer to prevent them from collecting the taxes levied by Senate Bill Five and to prevent them from disbursing any moneys, or otherwise performing the functions prescribed for them by Senate Bill One. The other suit is in the nature of a quo warranto, the information having been filed in this Court in *15 the name of the State on the relation of the Attorney General, against the Governor, the State Comptroller and against the State Treasurer, as such, and as ex-officio County Treasurer, questioning the authority of said respondents to exercise the offices, franchises and powers created by Senate Bill One.
The injunction suit is now before us on defendant's appeal from the decree of the chancellor enjoining in certain respects the distribution of certain of the taxes to be collected pursuant to Senate Bill Five, but holding the levy of each of such taxes valid. The complainant below in that suit, appellee here, has filed cross assignments of error challenging the correctness of the chancellor's ruling that the levy and collection of such taxes are valid. The quo warranto is before us upon a demurrer to the information. Substantially the same constitutional questions are raised in both suits. The two causes will therefore be considered together.
It is asserted against the statutes under consideration: (a) That they are void for vagueness, indefiniteness, ambiguity, and uncertainty. (b) That they violate Sec. 16 of Art. 3 of the Constitution in that they are misleading, the subject is not briefly expressed in the title, and that the Acts embrace more than one subject and matters properly connected therewith. (See Richmond v. Pace, 103 So. E. R. 647.) (c) That the alternative methods of apportionment provided in Senate Bill Five constitute an unlawful delegation of legislative power. (d) That the statutes violate Sec. 11 of Art. 16 of the Constitution relating to claims against the State. (e) That by the inclusion of the Governor, State Comptroller, and State Treasurer as members of the Board of Administration, these officers are required "to perform the functions of more than one office under the government of the State at the same time," contrary *16 to Sec. 15 of Art. 16 of the Constitution. (f) That Senate Bill One violates Sec. 1 of Art. 3 of the Constitution in that it delegates legislative power to the Board of Administration, and that it violates Sec. 27 of Art. 3 in that it creates new offices and provides for filling them in a manner contrary to the Constitution.
The immediately foregoing propositions designated as (a) to (f), inclusive, have been considered by Mr. Chief Justice Terrell in a separate opinion prepared by him and filed herein. The views expressed by Mr. Chief Justice Terrell upon the six propositions just stated are agreed to.
The validity of the statutes as against other asserted constitutional objections will now be considered. The two statutes, taken together, provide for: (1) the levy of certain excise taxes; (2) an apportionment thereof amongst the several counties; (3) the application of the proceeds of the taxes to designated purposes; and (4) a plan of administration of such funds through a Board of Administration composed of State officers.
It should be constantly borne in mind that the taxes here involved are excise, not ad valorem, taxes.
First, as to the validity of the levy:
It will be helpful to an understanding of what is to follow to reiterate at the outset a few principles of constitutional construction universally sanctioned: (1) It is the function of the courts to interpret the law, not to legislate. (2) Courts are not concerned with the mere wisdom or policy of legislation so long as such legislation squares with the Constitution. (3) The Courts have no power to strike down an Act of the Legislature unless the provisions of the Act, or some of them, clearly violate some express or necessarily implied inhibition of the Constitution. (4) Every reasonable doubt must be indulged in favor of the Act. If it can be rationally interpreted to harmonize with *17
the Constitution it is the duty of the courts to adopt that construction and sustain the Act. (5) To the extent, however, that such an Act violates express or clearly implied mandates of the Constitution, the Act must fall — not merely because the court so decrees, but because of the dominant force of the Constitution, an authority superior to both the legislature and judiciary. Such an Act never becomes a law. See Jackson Lbr. Co. v. Walton County, 116 So. R. 771; Lainhart v. Catts,
In approaching the question of the power of the legislature to levy taxes, it should further be borne in mind that our State Constitution is not a grant of power to the legislature, but is a limitation voluntarily imposed by the people themselves upon their inherent law making power, exercised under our Constitution through the legislature, which power would otherwise be absolute save as it transcended the powers granted by the State to the Federal Government. State v. Stone,
"The true spirit of constitutional interpretation * * * is to give full liberal construction to the language, aiming ever to show fidelity to its spirit and purpose. * * * Constitutional provisions, whether operating by way of *18
grant or limitation, are to be enforced according to their 'letter and spirit,' and can not be evaded by any legislation which, though not in terms trespassing upon the letter, yet in substance and effect destroy the grant or limitation." Fairbank v. U.S.,
This court has held that "the courts should not declare a statute to be void or inoperative on the ground that it is opposed to a spirit that is 'supposed' to pervade the Constitution." State v. Johns, 109 So. R. 228; Cooley's Const. Lim. (7th ed.) p. 239. But it does not necessarily follow that in every case the courts must be able to point out some express inhibition which has been disregarded, or some express command which has been disobeyed, before the courts can set aside a statute as invalid. "The intent of organic or statutory provisions is the essence of the law and such intent may be shown by the 'implications and intendments' as well as by words of express provisions; and implied provisions of organic or statutory law are as effective as the express provisions, when such implied provisions are judicially declared to exist." Getzen v. Sumter County,
The purpose of the people in adopting the Constitution should be deduced from the Constitution as an entirety. Therefore, in construing and applying provisions of the Constitution, such provisions should be considered, not separately, but in co-ordination with all other provisions. Mugge v. Warnell,
In view of the principle that when a tax is levied solely for a purpose prohibited by the Constitution the levy is illegal, it will be well to now classify the second and third gas taxes to ascertain whether they are levied as State taxes or as county taxes, since different rules will apply, depending on whether they are the one or the other. The fourth gas tax will be considered separately.
It is contended both for and against the Acts that the second and third gas taxes are levied as State taxes. In defense of the Acts it is contended that the construction of roads and bridges is a State function and purpose; that the State could have constructed the roads referred to in the Acts and could have levied a State excise tax to pay for them; therefore, the counties and districts having performed a function resting upon the State in the building *20 of roads, and the State having recognized such roads as beneficial to the State, it follows that the State may now levy a State excise tax and apply it in payment of county and district bonds, the proceeds of which were used to construct the roads, so long as the State assumes no obligation to pay the bonds, which, it is asserted, is avoided by the express provision in the Act that the State assumes no obligation but that the proceeds of the tax shall be applied to the payment of such bonds as a gratuity, and further by the express declaration in Senate Bill One that such appropriation of the proceeds of the tax is for the specific benefit of taxpayers and property owners of the State, and not of the bonds. From this argument the conclusion is reached that the levy of said second and third gas taxes, as State taxes, is valid.
Those assailing the Act contend that the purpose of the tax is not to construct roads, for the roads in question have already been constructed and completed, but its purpose is to pay off county and district debts; that the payment of such obligations violates the clear intendment of Sec. 6 of Art. 9 of the Constitution; and that the tax being a State tax, and the payment of local county and district debts not being an "expense of the State" within the meaning of the Constitution, Sec. 2 of Art. 9, to which the State is confined in levying State taxes, the levy is void.
It is our duty to resolve any doubt as to the character of the tax in favor of such a construction as will harmonize the levy with the Constitution, or to avoid grave doubts on that score, if it can be rationally done. Hiers v. Mitchell, 116 So. R. 81.
Sec. 2 of Art. 9 of the Constitution is as follows:
"The Legislature shall provide for raising revenue sufficient to defray the expenses of the State for each *21 fiscal year, and also a sufficient sum to pay the principal and interest of the existing indebtedness of the State."
In Cheney v. Jones,
Except as otherwise contemplated by the Constitution, that construction would necessarily preclude the direct levy *22 by the Legislature of a tax for an exclusively county purpose, the State being confined, so far as Sec. 2 of Art. 9 is concerned, to the levy of taxes for State purposes or for purposes in which the State has a sovereign interest.
The Constitution of 1885 is a revision of the Constitution of 1868. Sec. 2 of Art. 12 of the Constitution of 1868 was retained verbatim as Sec. 2 of Art. 9 of the Constitution of 1885. In re-adopting that Section verbatim in the Constitution of 1885, the people did so with knowledge of the construction placed on it in Cheney v. Jones. It is therefore presumed that the people were content with that construction and adopted it along with the re-adoption of the Section, otherwise the language of the Section would have been altered in the Constitution of 1885.
Sec. 6 of Art. 9 of the Constitution provides:
"The Legislature shall have power to provide for issuing State bonds only for the purpose of repelling invasion or suppressing insurrection, or for the purpose of redeeming or refunding bonds already issued, at a lower rate of interest."
In re: Advisory Opinion, 114 So. R. 850, this Court said with reference to the anti-bonding provision just quoted: "The spirit as well as the letter of this Section should be preserved and given full force and effect. Its purpose should not be defeated or frittered away by any narrow or technical construction." See also Hathaway v. Monroe, 119 So. R. 149; State v. Green, 116 So. R. 66.
If the second and third gas taxes are State taxes, the levy thereof is clearly repugnant to Sections 2 and 6 of Art. 9 of the Constitution, and must therefore fall. The following reasons lead us to the conclusion just stated:
Generally speaking, public roads and bridges may be *23 constructed either as a State purpose or a county purpose. They usually benefit both the State at large and the county in which they are located. This Court has recognized this dual purpose in road building. Lewis v. Leon County, 107 So. R. 146; Jackson Lbr. Co. v. Walton County, 116 So. R. 771. Undoubtedly, the State could have taken upon itself the original construction of the public roads here under consideration and could have levied State taxes to pay for them as construction progressed. But the State did not do so. Undoubtedly, also, the counties and districts had legislative authority to construct them, as for county and district purposes, and they voluntarily chose to so construct them because they deemed them essential to local progress and prosperity. The counties and districts could have refrained, but they did not; they borrowed the money by issuing bonds and constructed the roads. The Legislature merely authorized, it did not compel. So each of the counties and districts, of its own choice, took the necessary steps to issue the bonds upon the ground that the construction of the roads in question constituted a county (or district) purpose, which it was, although the same construction projects might have been accomplished by the State as a State purpose. Construction of these roads, however, as local projects has been completed and that transaction is at an end. There remains only the payment of the local obligations thus incurred. The county and district bonds to pay for those roads were issued and validated as county and district bonds. Hence their legal status became fixed as purely county and district obligations, issued for a local purpose. They were not, and could not be, State obligations.
That the construction of these roads and bridges resulted in benefit to the State may be conceded. That fact alone, however, does not preclude their construction as a local *24 or county purpose, nor render the expense thereof an improper subject of local taxation. In a sense, any public improvement which benefits a county or a city also benefits the State to some extent. But if the State can justify itself in assuming to pay these bonds by State taxation merely because it acknowledges that the constructionu of the roads were a benefit to the State, then by the same process of reasoning the State counld justify itself in paying off, by State taxation, every bond issue incurred by any municipality in the building of public streets, thus centralizing the power of taxation to pay the cost of local improvements in a manner not contemplated by our Constitution. The tendency in this direction is already indicated by the introduction at the same session of the Legislature at Which Senate Bills One and Five were passed, of several Acts undertaking to create "road and bridge districts" of certain towns so as to qualify the bonds of such towns, issued for street paving purposes, to participate in the proceeds of the gas taxes now under consideration.
It is clear that a State purpose, or State expense, can not rest upon any such broad and general conception of State benefits as that just referred to. Local taxes must be levied to pay for local improvements already constructed, even though there is an element of incidental general benefit in them.
In Martin v. Dade Muck Land Co., 116 So. R. 449, this Court said: "In view of the limitations contained in Sec. 6 of Art. 9 of the State Constitution * * *, the State can not legally (with State funds) in any form or manner, either directly, indirectly, or contingently 'pay' or be obligated to pay the whole or any part of the principal or interest of the bonds authorized to be issued by the Everglades Drainage District." It was plainly stated that the State not only could not "obligate" itself to pay such *25 bonds, but that it could not "pay" them, either directly, indirectly or contingently. The same rule, and for the same reason, applies to bonds issued by counties and districts for road building when the project was undertaken and completed as a local purpose, and the bonds issued and validated as local obligations.
It would be more than mild inconsistency to hold that while the State was without authority to issue those bonds in the first instance, it could nevertheless authorize its subordinate subdivisions to issue them and the State subsequently levy a State tax to pay the obligations which the State in the first place could not issue or assume. That such payment would be made as a "gratuity," and not as an obligation, does not aid the situation, when by the intendments of Sec. 6 of Art. 9 the State is inhibited from "paying" bonds of this character. The conclusion is in-escapable that such a plan would constitute an indirect method of accomplishing that which the State can not do directly, and would afford a convenient means and a precedent for nullifying the provisions of Sec. 6 of Art. 9 of the Constitution. It has more than once been held by this Court, and we now re-affirm, that the Constitution contemplates that the expenses of the State, including its activities in building or paying for roads, shall be kept within its "revenue for each fiscal year," that is upon virtually a cash basis, and that such expense can not, by any plan of circumlocution, be anticipated by the issuance of bonds, except in the cases expressly recognized in the Constitution. In re: Advisory Opinion, 114 So. R. 850; State v. Green, 116 So. R. 66; in connection with which should be read Hathaway v. Monroe, 119 So. R. 149. As recently as the year 1920 a proposed constitutional amendment authorizing the State to bond itself for the construction of roads was defeated at the polls. Acts 1919, p. 341. *26
By Sec. 5 of Art. 9 of the Constitution, the several counties may be authorized to assess and impose taxes for county purposes, and for no other purposes. Therefore, bonds issued by the county must be issued for county purposes, and for county purposes only, otherwise no tax could lawfully be levied to pay them. It follows that when these bonds were issued, they were issued and validated as for County (or district) purposesonly. By what logic then, in view of the inhibition of Secs. 2 and 6 of Art. 9 of the Constitution, may a State tax be levied to pay them? Senate Bill One expressly declares that these bonds to the payment of which these taxes are to be applied "shall remain obligations of said counties or special road and bridge districts, respectively, and each of said counties or districts shall be legally liable for the full amount of its bonds so issued by it and outstanding." From what has been said, it must be clear that while the original construction of roads and bridges may constitute a dual purpose, and one which can be accomplished by either State or appropriate local taxation, it does not follow that after such roads have been constructed and completed as local projects and bonds have been issued as local bonds to pay the cost thereof, that the payment of such bonds can similarly constitute a dual purpose justifying the imposition of State taxes to pay such local obligations, for the reason that Secs. 2 and 6 of Art. 9 of the Constitution intervene to prohibit the payment of such obligations with State funds. To hold otherwise would clearly transcend the spirit and purposes of Sec. 6 of Art. 9. Since the payment of such bonds can not lawfully constitute "expenses of the State," to the raising of revenue for which purpose the Legislature is limited in the imposition of State taxes by Sec. 2 of Art. 9, the levy of these taxes, if State taxes, would be repugnant also to the latter provision of the Constitution. *27
In support of these taxes, as State taxes, City of Lowell v. Oliver, 8 Allen (Mass.) 247 is cited. In that case the court sustained the levy of a State tax to reimburse cities for bounties previously paid to State soldiers. The Court says: "If the object of the appropriation is a legitimate one, * * * we can see no valid distinction in principle between a right to raise money for a specific object yet to be accomplished and a right to raise it to defray the expenses of the same object after it has been attained." The important postulate of that assertion is "If the appropriation is a legitimate one." As explained in the subsequent case of Agawam v. Hampdon,
In Thomas v. Leland, 24 Wend. (N.Y.) 65, strongly relied upon by appellants to sustain these taxes as State taxes, "the general purpose of raising the money by tax was * * * to 'contract' a canal, a public highway, which the Legislature believed would be to the benefit of the City of Utica, as such, and independently of the bond the case is the ordinary one of local taxation to 'make and improve' a highway." No constitutional provision inhibited the payment of the debt there in question. Our Constitution inhibits the payment with State taxes of the debts here in question. See also Cooley, Taxation (4th ed.) Sec. 1817, p. 3568.
For the reasons stated, the second and third gas taxes can not be sustained as State taxes.
Can the second and third gas taxes be rationally and consistently regarded as county taxes? It is our judgment that they can, because the revenue to be derived therefrom is to be applied solely to a local purpose. To raise revenue for local purposes is the sole aim of the Legislature in imposing these taxes.
Whether a tax directly imposed by the Legislature, but the proceeds of which are to be applied to local purposes, is a State tax or a county tax seems to be the subject of conflicting opinions.
In Pennsylvania it is held that the character of a tax, as a State or local tax is determined by the Act which authorizes its imposition and not by the use to be made of the revenues to be derived therefrom. Elliott v. Philadelphia,
In New Jersey it is held that all taxes directly levied by the State, whether for State, county or municipal purposes, *29 are State taxes. United N.J. R. R. Co. v. State Board of Assessors, 67 Atl. R. 438.
A legislative declaration as to the character of the tax is of great weight, although not necessarily controlling. See
The principle is thus expressed by Judge Cooley in Youngblood v. Sexton,
"In one sense, undoubtedly, any tax levied by a general law is a State tax; but if the moneys are to be put to local uses, the only substantial difference between that and one levied by local action consists in this: that in one case the State levies the tax, and in the other it authorizes the levy. All taxation must be authorized by the State, and we know of no reason why all taxation for the ordinary purposes of government may not be levied under general laws when no express provision of the Constitution forbids it. Such legislation is no novelty in this State or elsewhere. Highway and school taxes are very commonly levied in that way; the local authorities, as to some of them, having no option, but being put under legal compulsion to assess and collect them. The school mill tax may be taken as an illustration. Collected under a general law, it was nevertheless put to the uses of the community which paid it; and it was in no proper sense anything more than a local tax. Neither is the tax now in question."
We therefore conclude, in the absence of superior contradicting *30 circumstances in the Act, that the second and third gas taxes are levied as county taxes, since it is to be presumed that the legislature intended a valid levy.
Since these taxes are county taxes, the purpose of the levy is lawful.
To hold that if these taxes are State taxes their levy would be illegal, yet if they are county taxes their levy and the application of the proceeds to a purpose for which the State could not levy a State tax, is valid, involves no inconsistency of thought or principle. If the legislature has the power to levy the tax, it has the power to prescribe the use to be made of the revenue, so long as the use so prescribed is consistent with the Constitution. The Constitution forbids the use of a State tax to pay county bonds, but it sanctions the use of a county tax for that purpose. If levied as a county tax, however, the revenue becomes county funds, not a State fund. These revenues never enter the treasury of the State, though the custody thereof may be committed to the State Treasurer, as County Treasurer ex-officio, by virtue of an express constitutional provision which will be noticed later. The legislature, as we shall also see hereafter, has the power to directly levy an excise tax for county purposes. It may therefore apply the revenue to the payment of county obligations, provided it is properly apportioned amongst the counties, as the Constitution contemplates the levy of county taxes for county purposes, but not the levy of State taxes for county purposes.
It may be said that it is of no importance to the taxpayer whether the tax be a State tax or a county tax — that the levy thereof exacts from him the same toll in either event. It may be conceded that the taxpayer contributes the same sum to the public coffers in either instance. But whether it is a State tax or a county tax is a *31 question of prime importance in the apportionment of the tax amongst the several counties, and consequently the answer to that question exerts a vital influence upon the re-distribution of the benefits of the tax amongst the people who pay it.
With respect to the contention that if these taxes are levied as county taxes the direct and compulsory levy thereof by the State impairs the principle of "local self government," let us now consider and ascertain the intent and purpose of the people in that respect as evidenced by the adoption of the Constitution.
After dividing the government of the State into three departments, legislative, executive and judicial, the Constitution in Articles 3 and 4 thereof, creates certain offices, namely, Senators and members of the House of Representatives, a Governor and his Cabinet, to the incumbents of which offices, together with certain subordinate officers created by law, are confided the governmental affairs of the legislative and executive departments of the State. These officers, together with the Judicial Department provided by Art. 5, form the State government. The authority of these officers extends territorially throughout the State, except as to certain of the judicial officers. See Advisory Opinion,
Having thus constituted the State government, the Constitution in Art. 8 directs its attention to local county and municipal affairs. In Sec. 1 of Art. 8 the Constitution ordains that "the State shall be divided into political divisions to be called counties," and Sec. 2 of that Article provides that "the several counties as they now exist are hereby recognized as the legal political divisions of the State." Sec. 24 of Art. 3 requires the Legislature to establish a uniform system of county government. Sec. 3 of Art. 8 contemplates that counties, as such, may incur indebtedness *32
when duly authorized. Sec. 4 prohibits the legislature from removing the county seat of any county. Sec. 5 recognizes the county commissioners as the general administrative board of the county. Sec. 6 provides for the election of county officers by the electors in each county, the obvious purpose of which was to provide generally for local officers for the administration of local county functions, whose "powers, duties and compensation shall be prescribed by law." That is, while theexistence of these officers is recognized by the Constitution as a part of our plan of government, their powers are wholly statutory. See Parker v. Evening News Co.,
It is fundamentally true that all local powers must have their origin in a grant by the State which is the fountain and source of authority. Nevertheless, those provisions of the Constitution just above quoted, and other cognate provisions, clearly imply, — and it is therefore the spirit of the Constitution, — that the performance of State functions shall be confided to State officers; the performance of county functions of purely local concern shall be confided to county officers. Save as is otherwise clearly contemplated by the Constitution, there can be no compromise *33 with that principle, the origin of which is more ancient than the Constitution itself. In England, a similar subdivision of the realm for the performance of functions exclusively local in character existed from the earliest recorded times, the English counties possessing recognized powers in matters of purely local concern. See Taylor's Origin and History of the English Constitution, Vol I, p. 41, 42; Vol. II, p. 190. Even when our Constitution of 1885 was adopted, existing facilities for transportation and communication, coupled with the geographic location of many of our counties, were such that a journey to the State capital by the resident legislative representatives of such counties often involved a tedious and devious journey of several weeks. Such isolation from the seat of the State government rendered indispensable the continued performance of purely local functions by local officers whose delegatedpowers were prescribed by Constitution and statute. So settled and of such ancient origin was that plan for the administration of affairs of purely local concern that it did not become the subject of an express provision in the Constitution, nor was such necessary, when it so plainly appears from the implications of the express language that a continuation and preservation of the principle as an incident to our form of government was so clearly assumed. Sec 24 of our Declaration of Rights provides: "This ennunciation of rights shall not be construed to impair or deny others retained by the people." That certain rights are retained by the people is therefore clearly implied.
This declaration and others, says Mr. Justice BROWN, speaking for this Court in State v. City of Stuart, 120 So. R. 337, "even limit to some extent the exercise of the tremendous, but inherent and well established, powers of taxation and eminent domain." *34
Under Sections 5 and 6 of Article 8, the legislature possesses plenary power over the "powers, duties and compensation" of county officers. Thus it was held in State v. Fearnside,
It is contended in this case that a county is a mere arm or agency of the State — that it is merely "the State acting locally." The foregoing resume of our constitutional system negatives this theory so far as the administration of purely local affairs is concerned. It is true that a county is an agency of the State, having no inherent power, but deriving its powers wholly from the sovereign State. It is also true, to paraphrase the language of one of the briefs herein, that the principle of local self-government does not constitute each county "an independent sovereignty, managed by a board having legal rights." Nevertheless, their existence as local entities for local purposes as well as their existence as legal political divisions of the State is recognized by the Constitution. The same power which created the legislature, namely, the sovereign people, recognized the counties. While a county in the performance of certain functions is an agency or arm of the State, it is also something more than that. If a county were no more than a mere agent of the State, — the State acting locally, — bonds issued by a county would in effect constitute State bonds, and therefore by virtue of Sec. 6 of Art. 9 of the Constitution would be void ab initio. While the county is an agency of the State, it is also, under our Constitution, to some extent at least, an autonomous, self-governing political entity with respect to exclusively
local affairs, in the performance of which functions *36
it is distinguished from its creator, the State, and for its acts and obligations when acting in purely local matters the State is not responsible. This, as we have seen, must be conceded in order to sustain the validity of county bonds. See Jackson Lbr. Co. v. Walton County, 116 So. R. 771; O'Connor v. City of Fon du Lac, 85 N.W. R. 327; Rathbone v. Wirth, 45 N.E. R. 115; People v. Hurlburt,
Article 9 of the Constitution relates to taxation and finance. Sec. 2 thereof ordains that "the legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year, and also a sufficient sum to pay the principal and interest of the existing indebtedness of the State." Having thus prescribed the means for defraying expenses of the State, attention is given to the needs of local governmental subdivisions.
Of course a county has no inherent power to impose taxes. The power, if it exists, must be derived from the State. Sec. 5 of Art. 9 provides that "the legislature shall 'authorize' the several counties and incorporated cities and towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes * * *. The legislature may also provide for levying a special capitation tax 'and a tax on licenses.' But the capitation tax shall not exceed one dollar a year and shall be applied exclusively to common school purposes." Thus the means is provided for raising revenue *37 for local county and municipal purposes in the performance of local functions.
It is clear, therefore, that our Constitution contemplates that an exclusively State purpose must be accomplished by State taxation; an exclusively county, purpose, in which the State has no sovereign interest, by county taxation. Chicago, etc., R. R. Co. v. State, 108 N.W. R. 557; Cooley, Taxation, Sec. 314. See Advisory Opinion,
If, however, the Legislature undertook to impose a tax upon the people of one county alone to pay the salary of the State officers created by Articles 3, 4 and 5 of the Constitution, or if the State undertook to tax a single county alone for the erection of a State building such as a State Capitol or State Prison, or State Insane Asylum, there would be no hesitation in saying there was no such power in the Legislature, because such a tax would at least violate the constitutional guaranty of equal protection of the law. See Ryerson v. Utley,
There is no difference in principle between a tax of the nature just mentioned and a tax imposed as a State tax throughout the entire State to pay the bonded obligations of the several counties incurred in the building of roads and bridges, when the building of such roads and bridges has been previously undertaken and consummated solely as a county (or district) project, and the status of such bonded obligations previously fixed as exclusively county (or district) obligations. This is true even though the building of public roads may constitute a dual State and county function in appropriate instances, and even though the roads and bridges so constructed as county or district projects may also be beneficial to the State.
On the question of the so-called "flexibility" of our Constitution to meet the changes wrought by modern conditions, it is pertinent to note here the views of the Supreme Court of the United States expressed in Euclid v. Ambler Invest. Co.,
As the second and third gas taxes are county taxes, it next becomes pertinent to consider whether the Legislature may directly levy, or may compel the levy by local officers, of a county tax. By "county tax," as used throughout this opinion, is meant a tax for an exclusively county purpose in which the State has no sovereign interest or responsibility, and which has no connection with the duties of the county in its relation to the State.
We do not intend in this opinion to decide upon any question relating to the power of the legislature to directly impose certain local district taxes, as for instances the Everglades Drainage District or districts formed by local petition. There being no specific limitation in the Constitution upon the formation of such districts, the direct levy of taxes of that character rests in part upon principles *41
other than those now under consideration. Lainhart v. Catts,
In Cheney v. Jones,
Here, however, we are concerned with an excise or license tax, levied as a county tax. We must, therefore, consider other provisions of the Constitution, including Sec. 5 of Art. 9.
In Article 8 of the Constitution the people recognized counties as "legal political divisions of the State" and provided for county officers. In Sec. 2 of Art. 9 the Constitution requires the legislature itself to provide revenue sufficient to defray expenses of the State. In Sec. 5 of Art. 9, which pertains to the levy of taxes to meet the expense of local county (and municipal) government the *42 command of the Constitution is that "The legislature shall 'authorize' the several counties and incorporated cities or towns in the State to 'assess and impose' taxes for county and municipal purposes, and for no other purpose."
It is urged that in the language of Sec. 5 of Art. 9 that "the legislature shall 'authorize' the several counties," etc., the only limitation implied is that "when the legislature authorizes counties to assess and impose taxes, such authorization shall be limited to an authorization to assess and impose such taxes for county purposes only," and that it "does not imply a limitation upon the power of the legislature to directly impose" taxes on the counties for local county purposes.
When the language of Sections 2 and 5 of Art. 9 is contrasted, however, and is considered in the light of our institutions of government and in the light of the construction placed upon what is now Sec. 2 of Art. 9 in Cheney v. Jones,supra, it is our judgment that the framers of the Constitution intended to and did withhold from the legislature the power to directly levy, or to compel a county to levy, a local county advalorem tax for an exclusively local purpose as already defined herein. Local administration of exclusively local affairs, that is, affairs in which the State has no sovereign interest as such, is undoubtedly contemplated by our Constitution. To withhold the coordinate power of local determination as to taxation in matters of exclusively local concern, would leave little of local government. See Cooley, Taxation (4th Ed.), Sec. 416, et seq.; Jackson Lbr. Co. v. Walton County, 116 So. R. 771; People v. Mayor, etc.,
We wish to be clearly understood, however, that the view just expressed with reference to local county taxes is confined to the levy of ad valorem taxes for an exclusively local purpose, that is, a purpose in which the State has no sovereign interest or responsibility and which has no connection with the duties of the county in its relation to the State. To the rule that the legislature has no power to levy or compel a county to levy a county ad valorem tax there are exceptions as well established as the rule itself, some of which it will be well to notice here in order to avoid any misunderstanding of the scope of the rule just stated. Amongst those exceptions are:
(1) When the purpose of the tax is one of both local and general concern, that is, a dual purpose, such as the support of public schools, the protection of public health, safety and morals, and the construction of roads and bridges, such roads and bridges constituting parts of the State system of highways, as to which the State has plenary control, but the "construction" of roads and bridges as parts of the State system of highways is to be distinguished from thepayment of county or district obligations the proceeds of which were expended for roads and bridges already constructed as purely local projects. So this Court has approved an act of the legislature requiring a board of county commissioners to purchase land for the erection of a court house, since, as explained by Mr. Justice BROWN in a concurring opinion, "it is of such importance to the State that there be a reasonably adequate court house in each county that it (the building of a court house) is not exclusively a county purpose." State v. Tyler, 116 So. R. 760. See also Apgar v. Wilson, 116 So. R. 78; City of Chicago v. Manhattan Cement Co., 53 N.E. *44 R. 68; 45 L. R. A. 848; 69 A. S. R. 321; Richmond v. Pace, 103 So. E. R. 647; Rogers v. Bass, 168 Pac. R. 212.
(2) When the purpose of the tax is to require the county to fully and properly perform its duty as "a legal political division of the State," that is, as an agency in State government. Obviously, the State possesses the power to prevent a condition of local insurgency in government. No local community has the inherent right to decide for itself whether it will or will not bear its legitimate share of State burdens in matters pertaining to general government, and the State could not confer such a right. The Legislature may therefore directly impose a tax, ad valorem or excise, for the sole purpose of enforcing legitimate contribution of the several counties to the general expense of the State for State purposes, even when the purpose is exclusive of any element of local purpose.
(3) When the imposition of such a tax is necessary to compel the county to fulfill a lawful obligation resting upon it in consequence of corporate action taken by virtue of authority derived from the sovereign State, as for instance the payment of its bonds.
In each of the foregoing excepted cases, (1) to (3), the State has a sovereign interest in the purpose for which the tax is levied. Consequently the purpose is not exclusively a local purpose, and such a tax would not be exclusively a local or county tax. Therefore the State possesses ample sovereign power in such cases to directly levy such a tax, ad valorem or excise, or to compel its levy by local officers. In such cases in which the State also has a sovereign interest, the people to be taxed have no absolute right to a voice in determining whether the tax shall be levied, save as they may be heard through their representatives in the Legislature. *45
There yet remains to be considered a fourth exception, in the case of excise or license taxes, to the rule inhibiting the direct levy by the State of a county tax.
Having provided in Sec. 2 of Art. 9 for the raising of revenue to meet the expenses of the State, under the language of which Section the Legislature could clearly impose excise or license taxes, as well as ad valorem taxes, for a State purpose; and after having provided in Sec. 5 of Art. 9 that the Legislature shall "authorize" the several counties to "assess and impose taxes" for county purposes, which also would embrace both ad valorem and excise taxes, there follows almost immediately in the same Section the further provision: "TheLegislature may also provide for levying a tax on licenses," that is, excise taxes. (Italics supplied.) It is significant that the latter provision is found in Sec. 5 of Art. 9 relating to county and municipal taxation, provision having already been made for raising revenue for State purposes, under which excise as well as ad valorem taxes could be imposed for State purposes. It is also significant that although the capitation tax, authorized in the same sentence, is required to be applied exclusively to a designated purpose, no purpose of application was specified for license taxes, except of course that it must necessarily be applied to a county purpose if levied as a county tax, because in the levy of State taxes the Legislature is confined by Sec. 2 of Art. 9 to State purposes.
We can not assume that the framers of our Constitution used words idly. We must impute some purpose to the language found in Sec. 5 of Art. 9 that "the Legislature may also provide for levying a tax on licenses." The clause was designed to accomplish some object. It is our judgment that by virtue of the quoted provision found in Sec. 5 of Art. 9 the Constitution contemplates not only that *46
the Legislature may "authorize" the several counties to assess and impose license or excise taxes, but the "Legislature" may "also" provide for levying excise or license taxes. This broad authority not having been confined to the levy of such taxes for State purposes, then in view of the inherent power of the State to levy all taxes not inhibited by State of Federal Constitutions the authority extends to the levy by the Legislature of such taxes for local county purposes. See Amos v. Gunn,
If that was not the object of the quoted provision we must disregard it, for it would be utterly superfluous, because under Sec. 2 of Art. 9 the Legislature could levy an excise tax for State purposes, and under the first portion of Sec. 5 of Art. 9 the Legislature could "authorize" the levy of such a tax by local officers for local purposes. Unless, then, the purpose of the quoted phrase was to recognize the authority of the Legislature to "also" impose excise taxes for local county purposes, what was its object? The practice has been followed since 1913 with reference to occupational license taxes, see Chap. 6421, Acts of 1913, Sec. 804 R. G. S. 1920; Sec. 1051, C. G. L. 1927. See also Chap. 6881 and 6883, Acts of 1915, levying license taxes on the operation of automobiles, the first being a county tax, the second a State tax.
The view here expressed as to the purpose of the phrase under consideration, as well as the fact that it was intended to embrace all license or excise taxes and not merely occupational license taxes, is sustained by the history of the phrase in the Constitutional Convention of 1885, which will be found in the proceeding of that Convention, on pages 186, 269, 273 to 280, and 350.
The Legislature may "provide" for levying such excise taxes either by a direct imposition thereof or by delegated *47
authority to local officers to levy such tax for a local purpose. With reference to excise taxes, the choice of method rests with the Legislature. See Canova v. Williams,
Since the second and third gas taxes are excise taxes, and since these taxes may be regarded as county taxes for county purposes, and since the authority of the Legislature to directly impose such a tax for county purposes is expressly recognized by the quoted provision of Sec. 5 of Art. 9, we conclude that the levy of said second and third gas taxes as county taxes is valid, and violates no principle of local self government contemplated by the Constitution. The administration of such taxes by the Board of Administration provided by Senate Bill One, will be considered later.
Second, as to the apportionment of the second and third gas taxes amongst the several counties:
We have demonstrated that these taxes are imposed as county, not State, taxes, and we so hold.
There is no constitutional requirement that taxes levied as State taxes, that is, for general "expense of the State," shall be expended or disbursed in the particular community where collected. The Legislature has wide, if not plenary discretion in the apportionment and application of the proceeds of a State tax, except as restrained by the Constitution. State v. Hauge, 164 N.W. R. 289; L. R. A. 1918 A. 522; Cooley, Taxation (4th ed.), Sec. 1813. State taxes imposed as such and collected from all the counties may properly be expended in the construction of a State road located wholly in one county, or in only a few counties, or upon a State building located wholly in one county. *48
It is settled also that intrinsic equality and uniformity, essential in the imposition of ad valorem taxes, is not indispensable in the imposition of excise taxes. Hiers v. Mitchell, 116 So. R. 81; Jackson v. Neff,
The legislature may impose a county excise tax in one county and not in another, but if imposed as a county tax the proceeds of such tax would be county revenue, and such tax must be uniformly imposed throughout the county in which the tax is levied. The legislature may impose an excise tax on one privilege, or class of privileges, and not on another, or at a higher rate on one privilege than on another. The legislature has no power, however, to impose even an excise tax on the people of the whole State to attain a purely and exclusively county purpose. Conversely, the legislature has no power to impose an excise tax upon the people of one county alone, or any group of counties less than all, to defray a general State expense, from which such counties receive no special benefits not enjoyed in common by all.
As the second and third gas taxes are county taxes, the territorial taxing unit is the county. The apportionment of the revenue from both these taxes must therefore be to the several counties in the proportion collected therein respectively, and not in proportion to the bonded indebtedness. To apportion such revenue according to the bonded *49 indebtedness of the several counties would result in some counties receiving less than is collected in those counties, while other counties would receive much more than is collected therein, so that the former would be compelled to contribute to the debts of the latter, thus denying the equal protection of the law, the purpose of the tax being to pay off the bonds of the several counties, and the bonded indebtedness of the several counties being not in the same relative proportion as the sales of gasoline therein. An "equal" division amongst the several counties would lead to the same result, when the tax is a county tax, a greater amount being collected in some counties than in others.
When county funds have been raised by a county tax imposed for revenue purposes, the legislature has no such control over the funds so raised that it may take the moneys so collected from the citizens of one county and divert it to the benefit of the citizens of another county, even though the tax was imposed directly by the legislature. There is no principle of which we are aware which sanctions the doctrine that it is within the taxing power of the legislature to compel one county to contribute to the debts of another. Under our system of constitutional government, arbitrary or unlimited power is not committed to any branch of the State government, legislative, executive or judicial. Even though the legislature may impose excise taxes for county purposes, it can not take the revenue thus raised in one county for county purposes and appropriate it to pay the debts of some other county, upon the assumption that as the revenue is public funds raised by act of the legislature itself, it must be at the legislature's absolute disposal. If so, the principle that taxation and representation go together will have vanished. See Yemhill v. Foster, 99 Pac. R. 286; Simon v. Northrup, 40 Pac. R. 560; Hampshire v. Franklin,
In State v. City of Stuart,
In Cooley on Taxation (4th Ed.), Sec. 314, it is said:
"An Act of the legislature authorizing contributions to be levied for a mere private purpose, or for a purpose which, though it be public, is one in which the people from whom they are exacted have no interest, would not be a law, but a sentence commanding the periodical payment of certain sums by one portion or class of people to another. This principle has met with universal acceptance and approval because it is as sound in morals as it is in law."
Nothing said herein conflicts with what was said in the concluding paragraph of the opinion in State v. Johnson,
As against this view as to the apportionment of the third gas tax, it is urged that although these taxes may be county taxes, and although they may be ostensibly levied upon and paid by the retail dealer in gasoline, they are really taxes upon the consumer (See Panhandle Oil Co. v. State of Mississippi,
In this respect, the use of gasoline is reciprocal. Gasoline purchased in Leon County might be used in several counties along Road No. 1 to Duval County. Conversely, gasoline purchased in Duval County might be used in Leon County, and in the intervening counties. The claim that principal termini counties would thus profit over intervening counties is largely dispelled by statistics of the State, which show that the proportion of gasoline purchased in the several counties coincides substantially with population.
Furthermore, all taxes on purchasable commodities are passed along to the consumer in one form or another. Regardless of whether the tax is ultimately paid by the dealer or the consumer, it is a tax either on the privilege of the dealer to sell, or on the privilege of the customer to purchase. *52
In either event the privilege is exercised wholly in the county where the sale and purchase occurs, even though the consumption of the commodity so purchased may sometimes occur in other counties. But that does not alter the situs of the tax for the purpose of distribution. In Amos v. Gunn,
No one would deny that the county in which a county occupation license tax is collected (which is levied directly by the legislature, see Sec. 1051 Rev. Gen. Stats. 1927), is a revenue which that county must be allowed to retain, whether it be collected locally in the county, or by State officers for the benefit of the county. Such taxes are levied upon the privilege of conducting the several businesses and occupations in the respective counties. The merchant, especially the wholesale merchant, exercises the privilege of selling his wares in a given county, but these wares are frequently used and consumed in other counties. The shoe merchant sells shoes that are worn upon the streets and roads of other counties and cities; the automobile dealer sells automobiles which are used in and upon the roads of other counties; the grocer sells groceries which are consumed in other counties, yet it would not be seriously contended that the county of situs, where the privilege of sale, or of carrying on the business is exercised, should divide the revenue so derived with other counties into which the commodities may sometimes be taken for consumption or use.
Though the revenue derived from gasoline taxes has been used largely for constructing roads, and though it is peculiarly appropriate for that purpose, nevertheless the primary basis of the tax in its present form is not as a tax upon the use of roads, but upon the privilege of selling gasoline. This tax must be paid regardless of whether the *53 gasoline is to be used in propelling an automobile along the roads, or in a motor boat, an aeroplane, or a stationary engine, for which latter purposes a substantial percentage of the gasoline sold, and on which this tax is paid, is used by fisheries, sawmills, and the like. So strictly speaking, it can not be said that the purpose of the tax is to place a tax on the use of roads, so as to justify its apportionment on that theory. A tax or toll might be imposed upon that privilege in appropriate cases, as on a mileage basis or otherwise (See Carley Hamilton v. Snook, 74 L.Ed. (U.S.) 250) and different rules of construction and apportionment might apply to such a tax.
These gasoline taxes are not necessarily to be compared in this respect with automobile license taxes upon the operation of automobiles. The latter might be susceptible of construction as ultimately a tax upon the use of roads, though we do not now consider that question.
The distribution or apportionment of a tax, it is true, is in a sense separate from the levy, so that the invalidity of the apportionment may not necessarily affect the validity of the levy. Nevertheless, if the levy of a county tax is laid uniformly by the legislature, but the proceeds of the tax are arbitrarily apportioned without reference to the sums collected in the taxing units or districts in and for the benefit of which the taxes are collected (in this case the several counties), the result is as much a denial of uniformity and equal protection as though the levy itself was similarly lacking in uniformity.
In the opinion of the majority of the court, the distribution of the third tax upon the basis of relative bonded indebtedness of the several counties is invalid. We hold, therefore, under the specific provisions of the Act, as well as upon general principles of law, that the alternative method of apportionment provided in the Act, that is, in *54 the proportion to the amounts collected in the several counties, respectively, must be followed in apportioning the second and third gas taxes amongst the several counties.
The view of Mr. Justice WHITFIELD in this particular respect is that as the distribution in proportion to bonded indebtedness may be of doubtful validity, he therefore concurs in the holding here that the alternative distribution in proportion to the amounts collected in the several counties, as provided in the Act, be followed.
As to the apportionment of the fourth gas tax:
The apportionment of school taxes is, under our Constitution, a question sui generis. See State v. L'Engle,
Sec. 7 of Art. 12 of the Constitution, as it has remained since the amendment adopted in 1894, is:
"Provision shall be made by law for the apportionment and distribution of the interest on the State School Fund, and all other means provided, including the special tax, for the support and maintenance of public free schools among the several counties of the State in proportion to the average attendance upon schools in the said counties respectively."
In 1926 Sec. 9 of Art. 12 was amended to read as follows:
"In addition to the tax provided for in Section 8 of this Article the County School Fund shall consist of the proportion of the interest of the State School Fund and of the one mill State tax apportioned to the county, all capitation taxes collected within the county and all appropriations by the Legislature which shall with all other County School Funds be apportioned *55 and distributed as may be provided by law and shall be disbursed by the County Board of Public Instruction solely for the support and maintenance of public free schools: Provided, that such apportionment and distribution shall be made by general law based upon some declared principle of classification to be determined by the Legislature."
Sections 7 and 9 of Art. 12 must be construed together. Sec. 7, containing a mandatory method of apportionment of school funds has been modified, to the extent of the effective operation of the proviso embraced in Sec. 9 of Art. 12 as amended in 1926, but Sec. 7 of Art. 12 was not repealed by the adoption of the amendment of Sec. 9 of Art. 12 containing the proviso mentioned. The effect of the two Sections considered together, upon the question of apportionment of school funds, is that Sec. 9 of Art. 12 of the Constitution yields to the Legislature the authority by a proper statute to apportion school revenue "by general law based upon some declared principle of classification to be determined by the Legislature."
The chancellor has held that Sec. 3 1/2 of Chapter 14573, Acts of 1929, constitutes such a law, and that the apportionment therein provided for, upon a basis of "aggregate" attendance in the several counties, must be followed in the distribution of two-thirds of the fourth gas tax.
Conceding that Chapter 14573, supra, is a general law as distinguished from a special law, and assuming but not deciding that the method of apportionment therein provided for school funds is upon a "declared principle of classification" as contemplated by the proviso in Sec. 9 of Art. 12, and further, whatever may be the effect of the provisions of Sec. 3 1/2 of that Chapter upon the apportionment of the "special revenue" for school purposes in that *56 particular Act provided for, a question we do not now decide because it is not now presented, it is clear that the title of Chapter 14573, supra, which is:
"AN ACT Providing for the Raising of Special Revenue for the Purpose of Education in This State by Providing An Additional Tax Upon Gasoline; By an Ad Valorem Tax on all Real and Personal Property in the State and Appropriating All Interest Received on All State Monies on Deposit in the Various Banks of the State."
is not sufficient to embrace the provisions of Sec. 3 1/2 of that Act purporting to apportion and distribute "all funds in the State Treasury to the credit of the public free school fund." Wade v. Atlantic Lbr. Co.,
It necessarily follows that by Chap. 14575, supra, (Senate Bill 5) the legislature has provided and appropriated revenue for public free schools as contemplated by amended Sec. 9 of Art. 12, but has made no effective apportionment thereof under the proviso of that Section. Therefore, the apportionment and distribution of two-thirds of the fourth gas tax must be "to the several counties of the State in proportion to the average attendance upon schools in said counties respectively" as provided in Sec. 7 of Art. 12 of the Constitution, such funds to be used in the several counties for county school purposes. It is unnecessary to specifically classify this tax to determine whether it is a State tax, or whether it is a county tax, as in either event its apportionment is controlled by the Constitution.
As to the remaining one-third of the fourth gas tax:
Of course, the legislature could impose a State excise tax for the construction of roads and distribute it *57 "equally" amongst the several counties, the sovereign State having complete control over its own revenue, save as limited by the Constitution. While the construction of roads may constitute a dual State and county function it also may properly constitute a county function only. It appears to us that when the legislature apportioned one-third of the fourth gas tax for "the construction of roads and bridges in the county to which it is apportioned" the legislature had in mind primarily the accomplishment of road building by the county as a county purpose, with reference to desirable local roads in the county, although these roads or some of them might also become parts of the State's system of highways. This leads to the view, and we hold that such one-third of the fourth gas tax is imposed as a county tax and must be apportioned amongst the several counties in the proportion collected in each county.
Third, as to the application of the revenue derived from these taxes:
As we have seen, the legislature may compel the imposition of local taxes for the purpose of requiring the fulfillment of obligations of counties or other local subdivisions of the State incurred through corporate action taken by virtue of authority derived from the State. The legislature may, therefore, direct the application of the revenue derived from the second and third gas taxes to the payment of county road and bridge bonds.
The legislature may also direct the levy of county taxes for the purpose of constructing and maintaining roads, such roads forming a part of the State's system of highways. The legislature may, therefore, direct the application of the one-third of the fourth gas tax to the "construction of roads and bridges in the county to which it is apportioned." *58
That the apportionment of this one-third of the fourth gas tax, as well as of the second and third gas taxes, must be to the several counties in the proportion collected therein, has already been pointed out.
The distribution and application of two-thirds of the fourth gas tax for schools is controlled by Constitution, Sec. 7, Art. 12, as already pointed out.
As to the application of the proceeds of the second and third gas taxes to the payment of special district roads and bridge bonds, after apportionment amongst the several counties in the manner already pointed out:
It is the view of the writer of this opinion, as well as of Mr. Justice ELLIS that the proceeds of the second and third gas taxes must be applied to the payment of county bonds only, and not to district bonds. It is true that the Constitution erects no specific barrier against the payment of district bonds by the county, as it does against the payment of county bonds, or other local bonds, by the State. There is no express limitation in the Constitution relating to the levy by the legislature of taxes for local district purposes. In the opinion of those members of the Court just above mentioned, however, it does not necessarily follow that the power of the legislature is transcendent in that respect.
Undoubtedly these district roads could have been originally constructed as county projects and with county funds. But they were not so constructed. The people of the districts voluntarily chose to construct them as district projects because they regarded them as of peculiar benefit to the people of the district. This was done without the consent or participation of the people of the other portions of the county. The construction of county roads is accomplished according to one recognized plan, the construction *59 of district roads according to another and essentially different plan. See State v. Walton County, 112 So. R. 630.
The due process and equal protection guarantees of the Constitution clearly imply that the burden of taxation to pay off an existing public obligation must be laid only upon those upon whom the obligation rests. In Cooley on Taxation (4th Ed.), Sec. 314, p. 653, it is said: "To any extent that one man is compelled to pay in order to relieve others of a public burden properly resting upon them, his property is taken for private purposes as plainly and as palpably as it would be if appropriated to the payment of the debts or the discharge of obligations which the people thus relieved by his payments might owe to private parties."
Here the district obligations have been voluntarily created and assumed by the people of the district alone, as a district obligation. The county at large is under no obligation to pay those bonds. They are district bonds. The second and third gas taxes are county taxes, and the proceeds county funds. To include district bonds in the application of the proceeds of the second and third gas taxes would be in effect to compel (not authorize) the people of the county at large to contribute, not to the construction of a road which might be a benefit to the county, but to the payment of anexisting obligation which they have not created nor assumed but which rests upon a defined and established portion of the county only. I cannot assent to the plan of compelling the people of the county at large to contribute to an existing debt, established as a district debt, in the creation of which neither the people of the county at large, nor their chosen representatives, had any voice. See Stanley v. Jeffries (Montana) decided Nov. 29, 1929, 284 Pac. R. 134. *60
In State v. Brevard County, decided at this term, the Act "authorized" but did not "compel" the assumption by the county of district obligations. The action of the county officials of Brevard County in voluntarily taking over the district obligations under authority as distinguished from compulsion of the legislature, is tantamount to the people of the county, acting through their chosen representatives, the county commissioners, voluntarily assuming the district obligations, the legislature having declared the district roads to be county roads and beneficial to the county as such. In the case now before us, however, to apply the proceeds of the second and third taxes to the payment of district obligations would be ininvitum, and therefore compulsory. The legislature might authorize the several counties to take over district bonds, the proceeds of which were expended for the construction of roads which constituted an appropriate county purpose, as it has done with reference to Brevard County by Chap. 13937, Acts of 1929. Having done so, if the county authorities then voluntarily assume the district bonds as a county indebtedness by substituting county bonds therefor, these latter bonds might participate in the application of the proceeds of the gas taxes if the legislature sees fit to remove the provision restricting participating bonds to those issued prior to April 1, 1929. This would not be an indirection. In the circumstances last named the people of the counties, through their chosen representatives, will have voluntarily assumed the indebtedness as for a purpose which is an appropriate county purpose in view of the character of the roads.
On the other hand, however, Mr. Justice WHITFIELD, Mr. Justice BROWN and Mr. Justice BUFORD are of the opinion that district bonds should be included in the application of these funds for the same reason stated in The *61 State of Florida v. The County of Brevard, decided at this term, these members of the Court being of the view that the legislature may direct as well as authorize the application of funds levied upon the subject, and for the purposes, and collected as in this case, since the taxes imposed are excise taxes and since the purpose for which the legislature may impose excise taxes is not limited in the Constitution, as already pointed out herein, so that the legislature may directly levy county excise taxes and direct the application of the revenue therefrom to the payment of district bonds in the several counties.
Therefore, the decree of the chancellor in this respect is reversed.
Fourth, as to the administration of these revenues through the Board of Administration:
In 1914 an amendment to Sec. 6 of Art. 8 of the Constitution was adopted. Prior to that amendment there had been a constitutionally recognized county treasurer in each county. Amongst other things, the amendment of 1914 abolished the office of county treasurer, and this language was inserted in the section:
"The legislature shall provide by law for the care and custody of all county funds and shall provide the method of reporting and paying out all such funds."
This commits to the legislature the broadest possible authority as to the "care, custody, reporting and paying out" of all county funds. It vests in the legislature the authority to create the Board of Administration provided in Senate Bill One, for the "care, custody, reporting and paying out" of such county funds. The authority of the board, so far as the county funds are concerned, extends no further. The board is the mere fiscal agent of the county for designated purposes. It has no authority to perform any of the discretionary functions with reference *62 to such funds which properly belong to local county officers.
The creation of the Board of Administration is not the re-creation of the office of county treasurer contrary to the intent of Sec. 6 of Art. 8 of the Constitution, as amended. No such office is created. The Act merely places additional ministerial duties upon certain State officers which do not interfere with the constitutional duties of such officers. See Whitaker v. Parsons, 86 So. R. 251.
In Cone v. Road Improvement District, 277 So. W. R. 544, sustaining the Harrelson Act in Arkansas, relied upon by appellants, the taxes there in question were regarded as State taxes. It was soundly held that "the sovereign has complete control over its revenue derived from taxation," and that the State might apportion such taxes to the several counties according to population and apply same as a gratuity to the payment of local obligations. In that case, however, there does not appear to have been presented to or considered by that court the vital question which confronts us in this case, namely, whether such application of State taxes would violate the intendment of constitutional inhibitions against the issuance of State bonds. In Martin v. Dade Muck Land Co.,supra, we distinctly held that "the State can not directly or indirectly 'pay' such bonds (Everglades Drainage District Bonds) by State taxation without violation of Sec. 6, Art. 9 of the State Constitution." It is the latter proposition which leads us to the conclusion that the second and third gas taxes imposed by Senate Bill Five are imposed as county taxes, since the legislature is presumed to have intended a valid levy, which leads to the further conclusion that the revenue constitutes county funds and therefore must be apportioned as hereinabove set forth because the funds of one county cannot be diverted to pay the debts of another county. *63
Sec. 2453, Rev. Gen. Stats. 1927, requires that one-half of the funds realized from the county special road and bridge tax levied upon property in cities or towns shall be turned over by the county commissioners to such cities and towns to be used in repairing and maintaining the roads and streets thereof. In Duval County Commissioners v. City of Jacksonville,
To recapitulate:
We hold:
1. The purpose of the second and third gas taxes is not to construct roads, but to pay off existing county and district bonds. *64
2. The legislature has no power to levy a State tax for the purpose of paying county or district bonds. If levied as State taxes, the second and third gas taxes would be repugnant to the constitution and their levy void.
3. The second and third gas taxes, as well as one-third of the fourth gas tax, are held to be county taxes, and the levy thereof as such is valid. The revenue from these taxes becomes county funds.
4. The apportionment of the revenue from the third gas tax in proportion to the bonded indebtedness of the several counties is invalid. Apportionment of the revenue from the second, third and one-third of the fourth gas tax must be to the several counties in the proportion collected therein respectively.
5. The application of the second and third gas taxes to the payment of county and district road bond indebtedness, after apportionment to the several counties as above stated, is valid. The application of one-third of the fourth gas tax to the construction of roads in the county is valid.
6. The apportionment provided for school funds in Sec. 3 1/2 of Chap. 14573, supra, on a basis of "aggregate days attendance" in the several counties does not apply to the distribution of that portion of the fourth gas tax devoted to school purposes. The revenue from two-thirds of the fourth gas tax levied by Senate Bill Five must be apportioned to the several counties "in proportion to the average attendance upon schools in the said counties respectively," as provided by Sec. 7, Art. 12, of the Constitution.
7. Creation of the Board of Administration by Senate Bill One is valid, but the authority of that board to administer county revenue arising from the second and third gas taxes, is confined to the "care, custody, reporting and paying out" of such county funds. *65
8. Any surplus funds arising from the second and third gas taxes and to the credit of any county, after apportionment as hereinabove pointed out, should be remitted to such county to be used for the construction and maintenance of roads and bridges therein.
In the chancery cause, the decree appealed from is affirmed in part and reversed in part, and the cause remanded for further proceedings consistent with this opinion.
In the quo warranto, the demurrer to the information is sustained.
It is so ordered.
WHITFIELD, ELLIS, BROWN AND BUFORD, J. J., concur.
ERNEST AMOS, as Comptroller of the State of Florida, and W. V. KNOTT, as Treasurer of the State of Florida, Appellants, v. JOHN E. MATHEWS, Appellee.
Injunction.
THE STATE OF FLORIDA, on the relation of FRED H. DAVIS, Attorney General of said State, v. DOYLE E. CARLTON, as Governor, and MEMBERS OF THE BOARD OF ADMINISTRATION, and ERNEST AMOS, as Comptroller, et al.
Quo Warranto.
Division A.
Concurrence Opinion
The above entitled two causes, while not involving identical questions throughout, are in relation to the same subject matter and involve a financial policy of the State developed in the legislation of the Extraordinary Session of the Florida Legislature of 1929. The subject of such legislation was the collection and distribution of an excise tax on gasoline to provide funds for the expenses of the State Road Department; the payment and ultimate retirement of county and road district bonded indebtedness incurred to build state highways and local roads; to aid county public schools and to aid counties for school purposes and for building roads and bridges and their maintenance.
The Acts involved are Chapters 14486, 14573 and 14575. Each act was approved by the Governor on the same day. Two of them, Chapters 14486 and 14573 to take effect upon becoming a law, which was the date of approval by the Governor; and the third, Chapter 14575 to take effect on *116
July 1, 1929. See Parker v. Evening News Company,
For the purpose of obtaining a view in legal perspective as it were of the State's economic policy so far as it is developed by the statutes mentioned, a brief synopsis of each act might be helpful to the end that the aspect of the subject under investigation may be seen in all its relations and the vanishing point of constitutional objections, if any exist in reality, more clearly perceived.
The title to Chapter 14486, supra, is as follows: "AN ACT Providing for Depository of Sinking Funds and Delinquent Taxes and Other Moneys for Road and Bridge Indebtedness of the Counties and Special Road and Bridge Districts of the State or Otherwise, Authorizing the Issuance of Refunding Bonds by Said Counties and Special. Road and Bridge Districts, and Providing for the Creation of a Board of Administration and the Disbursement of such Funds to Pay Such Indebtedness and the Use of Any Surplus in Any County for the Construction and Maintenance of Roads and Bridges."
There are three subjects definitely announced in that title: first, the creation of a depository for funds for road and bridge indebtedness of counties and special road and bridge districts of the State "or otherwise"; second, authorizing the issue of refunding bonds by counties and special road and bridge districts; and third, the creation of an agency of administration and providing for disbursement of the funds to pay the indebtedness and the use of any surplus in any county for the construction and maintenance of roads and bridges.
The word "depository," as used in the title of the Act, means a person with whom funds or securities are placed and not the place where they are deposited. This meaning is evident from the provisions of the Act which names *117 the officer, "State Treasurer," as such custodian and such funds are to be held and disbursed by him not as he is required under the Constitution to hold and disburse funds, that is to say, upon the order of the Comptroller countersigned by the Governor. Under the Act he is a mere depositary of funds and disburses them upon the Comptroller's order. An administration agency of county funds to the extent named in the Act is created and one member of such agency is empowered to expend the funds to be administered.
The Act declares that all roads and bridges which have heretofore been built in whole or in part from the proceeds of bond issues by counties or special road and bridge districts are beneficial to the State at large and have contributed to its general welfare, settlement and development. The word "bonds" is defined to mean bonds, time warrants, notes and other forms of indebtedness issued for road and bridge purposes. Here is a legislative declaration that all such indebtedness was incurred for State and county purposes and not solely for county purposes, although in Lewis v. Leon County,
The legislative declaration that such county and special district roads are beneficial to the State is a truism. The fact cannot be reasonably denied, but this Court said nevertheless that road and bridge construction by counties were county activities and indebtedness incurred for aid in the building of State highways was incurred nevertheless for county purposes and for no other purpose.
The purpose of the legislative declaration therefore is *118 obvious. It is designed as the basic principle on which the remaining provisions of the Act shall rest. The postulate supporting the policy declared by the particular Act and others in pari materia, the argument being: The State may levy and collect taxes to defray as State expenses all indebtedness incurred by counties for construction work beneficial to and contributing substantially to the State's general welfare; county indebtedness for road building is an indebtedness incurred by a county for construction work beneficial to and contributing to the State's general welfare, therefore such county indebtedness may be paid by the State as a part of the State expenses. It is evident that a material fallacy exists here and it lies in the first premise which is a complete denial of a governmental policy established by our Constitution and followed by our legislative and judicial departments since the organization of the government.
All constructive work performed by a county within its legal authority to construct is in the last analysis work which is beneficial to and contributes substantially to the State's general welfare. In that sense the phrase "general welfare" as used in the Act would not justify listing the expense therefor as a State expense when in fact the work was for a county purpose and no other purpose. All such constructive work is not deemed to be the subject of a State expense.
The building of court houses, jails, urban and rural schools and county hospitals have been held to be county activities as distinguished from State activities and the expense incurred therefor county expense to defray which counties may levy and collect taxes. The same has been held regarding activities by counties in road and bridge construction. See Gamble v. State,
The validity of the indebtedness incurred for such work depends upon the character of the work as one for a county purpose and no other. The work having been completed and the county's bonds or promises to pay therefor, outstanding valid obligations for county purposes and no other purposes, it cannot later be declared to have been a State enterprise of such character as to justify the levying of a tax by the State for State expenses without impugning the county's authority to contract the indebtedness originally.
In other words, to say that counties may contract indebtedness for road building as a county purpose and no other and that the State may levy and collect taxes to pay such indebtedness because as the work was beneficial to the State the cost of it becomes a State expense is to occupy inconsistent positions because the indebtedness cannot be one incurred for a county purpose and no other purpose when the bonds or other evidences of indebtedness were issued and sold and then be transmitted into a State expense when they are to be paid. The purpose for which the indebtedness was incurred has not changed by the execution of the work. If the indebtedness was originally for a county purpose and no other and therefore a valid county expense to pay which the counties might levy and collect taxes, by what process of reasoning does the indebtedness become a State expense to pay which a State tax may be lawfully levied and collected?
It could be only upon the theory that the State may levy and collect taxes with which to pay county indebtedness *120 lawfully created which must be for a "county purpose and no other purpose" as part of the State expenses for the fiscal year or as part of its existing indebtedness. Sec. 2, Art. IX, Constitution.
Under the State policy existing at the time of the passage of the acts in question county indebtedness incurred for county purposes and no other purposes was neither a state expense for any fiscal year nor part of the State indebtedness.
If the proposition announced in the next preceding paragraph is not true but the one announced in the paragraph preceding that is true, it follows that all county indebtedness legally incurred becomes in the last analysis a State obligation, part of the State expense for the fiscal year, or part of its indebtedness which it may pay when and in whatever manner the legislature may determine and no question of appropriation or equality and uniformity of taxation could be successfully raised, because each county item of indebtedness being a State debt it could make no legal difference which were paid first nor in what proportions they were paid.
It is contended by some that the State may take over the county indebtedness and pay the same as a matter of gratuity but which it could not do if it undertook by the same legislative act to authorize the counties to incur the indebtedness for a county purpose and no other purpose and provide for the payment of the same by the State, because that would be a subterfuge, they say, and the act would be void because of the subterfuge.
It would seem that if the term is an appropriate one to be used in relation to any State activity it could more appropriately be applied to the former method by which under the name of a "gratuity" it seeks to accomplish what its legislature has no power directly to accomplish, *121 viz.: the authorization of the issue of bonds by counties for county purposes only which shall become a State indebtedness to be paid out of funds derived by State taxation.
A State policy on any subject is not a thing to be divided into sections, which assume at different times varying relative importance to each other. It is an entirety as of any certain date and consists of all the laws in existence as of the date the policy is determined. If it is consistent with State policy to assume a county indebtedness and levy a State tax to pay it, what law would prevent the authorization by the State of such indebtedness and its promise to pay it which would not be applicable to the assumption of the indebtedness after it is created and the imposition of a tax to pay it?
Can there be a policy which prohibits the State from promising to pay a county indebtedness before it is created but which permits the State to pay it after it is created? A policy which prohibits the incurring of an indebtedness but permits the payment of it?
Is it not merely a playing with words to contend that while the State has no power to issue bonds or other indebtedness through its agencies, Advisory Opinion,
It is upon that fallacy, which I have endeavored to point out, that the act under consideration was passed and which the Attorney General and Mr. Mathews in behalf of the State attacked by a proceeding in quo warranto in which the right of the Administration Board and its members severally to function is challenged.
A careful reading of the act reflects the uncertainty of its author as to the validity of a policy which must be relied upon to support the act. First it is declared that road building by counties has been and will continue to be beneficial to the State and has contributed to its general welfare. It is obvious, however, that such declaration, in view of the decisions of this court, cannot make the indebtedness created by the counties for road building other than "a county purpose and no other purpose," so the act then proceeds to declare: second, that all indebtedness incurred by the counties for road purposes "shall remain obligations of said counties or special road and bridge districts respectively, and each of said counties or districts shall be legally liable for the full amount of its bonds so issued by it outstanding, together with interest thereon, until paid."
Now we have a government whose powers are supposed to be limited by a written constitution, at least all officers of the government and all electors who qualify are required to take an oath to support, protect and defend that Constitution, which places the purposes for which the power of taxation or the power to raise revenue may be exercised in two classes: State expenses and State agency *123 purposes, which latter include and are limited to counties, districts and municipalities. Art. IX, Const.
A municipal expense or indebtedness is not such an indebtedness as would support the levy of a State tax to pay. It creates no obligation upon the State to pay it, neither do the expenses or indebtedness of counties create a State obligation, and the act under consideration so recognizes the truth of that proposition because it declares: third, that it is not the purpose of the act to obligate the State "directly, or indirectly or contingently, for the payment of the obligations of any counties or the obligations of any special road and bridge district, or that the State should assume the payment thereof." Then why does the State undertake to exercise the power of taxation which is limited to "expenses of the State for each fiscal year and also a sufficient sum to pay the principal and interest of the existing indebtedness of theState"? Art. IX, Sec. 2.
The act itself answers the question: fourth, the "appropriations are made specifically for the benefit of the taxpayers and property owners of the State of Florida and for the purpose of rendering assistance to the various State agencies which have already performed part of the functionsresting upon the State." (Italics mine.) That phraseology would sound well in a political document for the "hustings" but will it bear careful analysis from a constitutional standpoint? In the first place the purpose singles out a class of citizens for whose benefit the tax referred to is levied, viz.: "tax payers and property owners." A large percentage of the population, many of whom are qualified electors and many under the required age for the discharge of the duties of an elector, are excluded from the avowed purpose of the act; second, it declares that another purpose for which the assistance is rendered is the payment of indebtedness incurred by counties and districts *124 in the performance of a "function resting upon the State," which is equivalent to asserting that the counties issued their bonds and taxed themselves to pay them for a purpose that cannot be classed "as a county purpose and for no other purpose" because a function which in a State policy is a State function as distinguished from a county function must necessarily be a State purpose as distinguished from a county purpose. But that declaration is a denial of the views expressed by this court that taxation for county roads and State highways in the particular county is a tax for a "county purpose and for no other purpose."
The act by Section 3 imposes upon the State Treasurer the duty of receiving as County Treasurer Ex-Officio all securities, monies or claims which may be in the possession or control of county bond trustees or other officials charged with the administration of sinking funds of any county or special road or bridge district which have accumulated for the payment of bonds of such counties or road or bridge districts issued for the construction of roads and bridges. Such funds he is required to retain and deposit in banks to be approved by a Board of Administration created by the act. See Sections 3 and 17.
For the purpose of "administering the provisions of this act and such money as is available by law" the Board of Administration is created. See Sec. 12.
It is unnecessary to discuss here in detail the methods provided according to which the Board is to function and how the funds available or which may be made available by law are to be apportioned between the counties. The State Treasurer is required to keep a separate account for each county of any moneys to be received from any tax on gasoline and other like products of petroleum "applicable to the bonds of such county and of any special *125 road and bridge district therein, and (b) any personal property tax on motor vehicles similarly applicable." Section 13.
Chapter 14575, Laws of 1929, known as the Gas Tax Law, purports to provide for part of the funds to be administered by the Board of Administration. This act is the subject of the litigation involved in the cause of Mathews v. Ernest Amos, as Comptroller, and W. V. Knott, as State Treasurer. It is an act amending Chapter 9120, Laws of 1923, as amended, which impose a license tax of five dollars upon every dealer in gasoline or other like products of petroleum and three cents per gallon on gasoline sold by him. The act provided that two cents per gallon of such tax should go to the State of Florida for the use of the State Road Department and one cent per gallon of such tax should be equally divided between the counties of the State of Florida.
Chapter 10025, Laws of 1925, amended Chapter 9120 by imposing a tax of four cents per gallon on gasoline, which was distributed in the proportion of three cents to the State Road Department and one cent equally among the counties. Both acts were again amended in 1927 by Chapter 12037 but the gasoline tax levied and the distribution of it was not changed. Each act indicates a legislative intent to cover the entire subject matter. See State ex rel. Bradford v. Stoutamire, Sheriff,
The provision in each act as to that portion of the tax to be paid over to counties is that "one cent per gallon of such tax shall be equally divided between the counties of the State of Florida." In my opinion, that provision makes the one cent per gallon tax a State tax, as distinguished from a county tax levied by the Legislature, because if it were a county tax the money raised in each *126 county by such tax would be required to be used in the county where raised and not paid into a common fund to be equally divided among all the counties. Art. IX, Sec. 5, Const. of Fla. Such distribution would destroy the constitutional requirement of uniformity in taxation. But the acts have been put into effect, the tax collected, and the money distributed as they direct. Such administration of the law could be maintained only on the theory that the tax is a State tax and the distribution of part of it to the counties equally a mere "gratuity."
Chapter 14575, supra, the act under consideration, levies a tax of five cents per gallon upon gasoline, which the act declares to be made up of four separate taxes, viz.: first, a tax of two cents for use of the State Road Department; second, a tax of one cent to be apportioned to the several counties of the State in the proportion collected in such counties; third, a tax of one cent to be apportioned to each county in proportion that the indebtedness authorized, issued and outstanding in the county for road purposes or road and bridge purposes by the county or any road and bridge district therein on April 1, 1929, bore to the indebtedness of the same class of all the counties and special road and bridge districts of the state and, fourth, a tax of one cent per gallon to be apportioned equally among the several counties of the State.
In this act there was a departure by the Legislature from the plan theretofore followed by the addition of the second and third gas tax, by which one cent of the tax is apportioned to the county in which it is collected and one cent apportioned between the counties in the proportion that the county and special road and bridge district indebtedness bears to all such indebtedness of all the counties.
Here was a perfectly obvious effort by means of the exercise of the taxing power on the part of the State to pay *127 county and special road and bridge district indebtedness incurred for the construction and maintenance of county and district roads.
In the view I have of the limitations imposed by the Constitution, such legislative activity is not permissible if the tax in its entirety is to be considered a State tax.
Whatever may be the power of the legislature in the matter of providing for special assessments by its agencies for local benefits the power to levy a tax either ad valorem or excise in character for State purposes is limited by the Constitution to providing "revenue sufficient to defray the expenses of the State for each fiscal year and also a sufficient sum to pay the principal and interest of the existing indebtedness of the State." Art. IX, Sec. 2, Const.
The county bond issues are declared by the act to be no existing indebtedness of the State. Is then such indebtedness and the yearly accrual of interest thereon "expenses of the State for each fiscal year"? Certainly not if such indebtedness is not an existing indebtedness of the State. If it were an existing indebtedness of the State it would be the duty of the Legislature to raise the revenue sufficient to defray such expenses for each fiscal year because the language of Section 2 of Article IX of the Constitution is mandatory in character but the terms of the act deny that there is any obligation upon the State to pay the indebtedness which must be taken as a legislative determination that the revenue sought to be raised by the tax, the proceeds from which is sought to be appropriated to counties for road and bridge indebtedness, is not for State expenses.
If the gasoline tax levied by the Act, Chapter 14575,supra, is a State tax but not for the purpose of raising revenue for State expenses, its justification must be found in the power of the Legislature to raise money by taxation *128
for the purpose of making donations to State agencies to aid them in the payment of obligations which the State is in no way whatever bound to pay and as was said in Martin v. Dade Muck Land Co.,
The lack of legislative power to pay such obligations by a State ad valorem tax was decided in the case above cited. It is contended that as the tax provided for by Chapter 14575,supra, is an excise tax the case cited is not analogous and constitutes no authority in support of the attack on the tax.
The power to levy taxes is not one varying in degree accordingly as the tax happens to be an ad valorem tax or a tax on licenses which includes excise taxes. See Amos v. Gunn,
The exercise of the power by the Legislature is limited by the terms of the Constitution to "raising revenue sufficient to defray the expenses of the State for each fiscal year and also a sufficient sum to pay the principal and interest of the existing indebtedness of the State." Art. IX, Sec. 2, Constitution.
Whether the class of taxes levied be ad valorem or a tax on licenses, the only two classes of taxes which can be levied for State purposes, Afro-Am. Ind. Benefit Ass'n v. State,
I am, therefore, impelled to consider the second, third and fourth gas tax as a county tax levied by the Legislature under Section 5 of Art. IX of the Constitution, in which the power is conferred upon the Legislature to "also *129 provide for levying a special capitation tax, and a tax on licenses." I use the term "conferred" because Section 2 of Article IX of the Constitution is a limitation upon the power of the Legislature to raise revenue and is limited to the purpose set out in that section. In Section 5 of the same article, however, the power was extended to the levying of a capitation tax and a tax on licenses.
It is only upon the theory that the second, third and fourth gas taxes are county taxes that they may be sustained.
A statute must be so construed, if fairly possible, as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score. See Burr v. Florida East Coast R. Co.,
Now there is a provision in Section 1 of the Act, Chapter 14575, which affects the second gas tax by requiring it to be apportioned to the several counties in the same manner as the third gas tax is required to be apportioned.
I conclude, therefore, that the second, third and fourth gas tax cannot be supported as a county tax if the funds derived therefrom are to be apportioned in the manner required by the Act because such an apportionment would destroy the constitutional requirement of uniformity in taxation.
To take money by way of taxation from all the counties of a State, put it into a common fund, and then redistribute it accordingly as a certain character of indebtedness in each county bears to the indebtedness of like character in all counties is to avoid the constitutional requirement of uniformity of taxation, destroy the theory of local self-government by counties and potentially hold one county to a payment in part of the indebtedness of another *130
county. A tax must be laid, said Mr. Justice COOLEY, according to some rule of apportionment; not arbitrarily or by caprice, but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest. A State burden is not to be imposed upon any territory smaller than the whole State nor a county burden upon any territory smaller or greater than the county. People v. Salem,
To undertake to sustain the apportionment upon the theory that gasoline is purchased in one county and may be used in driving motor propelled vehicles upon the roads in other counties is to attempt to imprison the delicate softness of a summer night's zephyr in the wide meshes of a tennis net.
The conclusion to which I am forced is that the second, third and fourth gas tax as collected in each county must be paid into the treasury of the county in which collected to be expended in such county upon the indebtedness of such county incurred for road and bridge construction and maintenance.
The one cent per gallon gasoline tax levied by Chapter 14573, Acts of 1929, is a State tax for public free schools and should be apportioned to the counties as directed by Section 7 of Article XII of the Constitution.
Addendum
The Constitution provides for the division of the State into counties, Section 1, Article VIII, and contemplates the existence of "incorporated districts," Section 10, Article IX. The construction of public roads is not regulated by the Constitution, and statutes may make public roads a State purpose or a county purpose or a district purpose, and may authorize and regulate *108 the issue, not of State bonds, but of county or district bonds for road construction, and may regulate the payment of such county or district road construction bonds by any means not forbidden by organic law. Districts are statutory entities. Instead of taxing the use of the public roads the statute for convenience taxes gasoline which is chiefly used in motor vehicles on the public roads.
There is in the Constitution no specific reference to "State taxes" or to "county taxes"; but the Constitution (1)requires the Legislature to provide for raising revenue sufficient to defray the expenses of the State for each fiscal year, Section 2 Article IX; (2) requires the Legislature to authorize the several counties to assess and impose taxes for county purposes only, Section 5, Article IX; and (3) provides that the Legislature may also provide for levying "a tax on licenses," with no specific limitations, Section 5, Article IX. Amos v. Gunn,
Statutes may authorize State revenues to be used for road construction as a State expense, Hathaway v. Monroe,
There are now no State bonds to be redeemed or refunded under Section 6, Article IX of the Constitution. See Chapter 8507, Acts 1921; Section 1379 et seq., and also Vol. 5, page 4761, Comp. Gen. Laws of Florida 1927; *109 Annual Reports of State Treasurer, J. C. Luning, 1925-27, page 9 et seq.
License taxes may be levied by statute for State expenses or for county or district purposes. The "second gas tax," the "third gas tax" and the "fourth gas tax," provided for by Chapter 14575, Acts of 1929, are not assessed and imposed by the counties; nor are such gas taxes levied for State expenses; but they are license taxes levied by the statute, under the license clause of Section 5, Article IX, Constitution, to be collected by State officers as distinct funds, separate and apart from taxes assessed and imposed by counties and from revenues raised for State expenses. The proceeds of such license taxes so levied and collected are to be apportioned to the counties and used for designated county and district purposes, and are wholly distinct from and are not controlled by the organic limitations upon, taxes assessed and imposed by the counties for county purposes under the first clause of Section 5, Article IX.
Such license taxes are not levied by or in the counties as local taxes. They are levied by statute at a uniform rate throughout the State to be collected by State officers as separate statutory funds, the proceeds of the second and third gas taxes to be used for public road purposes in all the counties, the public roads being for the use of the general public without regard to county lines or to the relative burdens of road construction. The legislative power in levying license taxes is not restricted by the Constitution except that the taxes must be levied only in pursuance of law and at a uniform and equal rate; and the taxes must not violate organic property rights or interfere with dominant Federal authority in its sphere. Within these organic limitations statutes may levy and apply license taxes for lawful and appropriate public purposes as *110 the Legislature determines, in the absence of organic limitations or regulations.
County and road district bonds have been issued under statutory authority for road construction, and the statutes require the counties and road districts to levy and collectad valorem taxes to pay such bonds. But this is not the limit of legislative authority. Under the inherent and organic power of the Legislature to provide for levying "a tax on licenses," Chapters 9120, Acts 1923, 10025, Acts 1925, and 12037, Acts 1927, levied license taxes on sales of gasoline for both State and county purposes, the county purposes being to supplement county ad valorem tax funds for road construction. County and district road bond indebtedness having greatly increased and much road construction having been accomplished, the Legislature, under its sovereign power and under the express authority given by Section 5, Article IX of the Constitution, to provide for levying "a tax on licenses," enacted Chapter 14575, Acts 1929, here considered, amending the prior statutes, and imposing less license taxes for road construction, but levying two "separate taxes" each of one cent per gallon on sales of gasoline, "to be apportioned among the counties" and used to supplement county and district ad valorem tax funds for road indebtedness, the levies being made by statute forcounty and district road bond purposes and not for State expenses. A public road in a county may be a county purpose even though it be constructed by means of a district bond issue.
The "second gas tax" and the "third gas tax" not being levied for State expenses, the application of the proceeds thereof to the payment of county and district public road indebtedness is not an evasion of, or an indirect violation of, the intendments of Sections 2 and 6, Article IX, Constitution. *111
The application of such statutory license taxes to the payment of district road bonds as well as to county road bonds, does not violate the provision of Section 5, Article IX, that the Legislature shall authorize the several counties to assess and impose taxes for county purposes only, because (1) such organic provision is not applicable to license taxes levied by statute throughout the State to be collected by State officers for county and district purposes; (2) if such organic provision is so applicable, the statute may, and in effect does, make public roads constructed by outstanding district bond issues, a county purpose; and (3) statutes may levy license taxes for district as well as county purposes, and the "second gas tax" and the "third gas tax" are levied by statute throughout the State to be collected by State officers and applied to the payment of both county and district road bonds. Public roads in a county being in fact and in law a county purpose, the required payment of district road construction bonds with license taxes levied by statute upon the subject and for the purpose and collected as in this case, does not violate organic property rights of persons who live in or own property in the counties but not in the districts that issued the bonds. Assumption by the districts severally of debts for road construction in the districts respectively, does not make it unlawful to use the proceeds of license taxes levied as in this case by statute for the payment of such debts for public road construction.
The provisions of Chapter 14575 and of Chapter 14486 for the collection and distribution or disbursement by State officers
of the license taxes levied by the statute throughout the State, for State, county and district purposes, do not violate any provision of the Constitution; but such statutory provisions as to the collection and disbursement by State officers of the license taxes levied by *112
the statute for county purposes, are expressly authorized by Section 6, Article VIII of the Constitution, as amended in 1914, which abolished the office of County Treasurer and provides that "the Legislature shall provide by law for the care and custody of all county funds and shall provide the method of reporting and paying out all such funds." This quoted organic provision affords ample authority for the statutes making the collection and disbursement by State officers of statutory license taxes levied by statute for county purposes, and there is no other provision of the Constitution which negatives such authority or limits or regulates such collection and disbursement by State officers of license taxes levied by statute for county purposes. The collection and disbursement of taxes levied by the statute for road district purposes, and the custody and disbursement of taxes levied for the payment of county and district bonds issued under statutes, are for legislative regulation. Abstract principles of local self government cannot interfere with the operation of the Constitution or of valid statutes. State ex rel. v. Johns,
The Constitution does not regulate or specifically limit the inherent and express power of the Legislature to levy "a tax on licenses," and the Legislature has authority over the counties and districts and over all public roads in the State. The roads are for general public use without reference to county lines, and there is great inequality among the counties in public road burdens and in taxable resources.
Where license taxes on gasoline used in motor vehicles on the public roads, are levied by statute, uniformly throughout the State to be collected by State officers as statutory funds to be apportioned among the counties and used for public road purposes in all the counties of the *113 State, such taxes are not levied for State purposes, nor are they levied by the counties for county purposes but they constitute a separate and distinct statutory license tax fund and it does not clearly appear that an apportionment among the counties of the proceeds of such statutory license taxes so levied and collected, in the proportion as such license taxes are collected in the counties severally, is, in view of the law and of the facts above stated, the only rule of apportionment that is permissible under Sections 1 and 5, Article IX, or other provisions of the Constitution. The Constitution requires geographic uniformity and equality in the rate of taxation, not in the application of tax funds to public purposes that are geographically not uniform or equal. The legislative power of a state is limited by the State and Federal constitutions, but not by theories of local taxation.
A statute must be construed, if fairly possible, as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score. United States v. Jin Fuey Moy,
The members of the Court all agree that the primary statutory apportionment of the "second gas tax" among the counties as collected therein severally, is valid; and that two-thirds of the "fourth gas tax" should be apportioned as required by amended Section 7, Article XII, Constitution, in the absence of appropriate statutory regulations under amended Section 9, Article XII. Where a fund for county school purposes has to bedistributed *114 among the counties, the applicable organic rule of "apportionment and distribution" controls. Board Pub. Inst. v. Croom,
In view of the questions raising doubts as to the constitutional validity of the primary apportionments made by the statute of the "third gas tax" and of one-third of the "fourth gas tax," and as there are express alternative provisions for such apportionment contained in the Act, in order to so apply the statute as to avoid doubts as to the validity of the adjudged apportionments and to effectuate the enactment, I concur in the holding in this case that the apportionment among the counties of the "third gas tax" as well as the "second gas tax," shall be in the proportion as the taxes are collected in the counties respectively, to be applied to stated county and district road bonds; and that one-third of the "fourth gas tax" shall be apportioned among the counties in proportion as the tax is collected in the counties respectively, to be used for public road construction in the counties severally; which adjudged apportionments are authorized and contemplated by the express alternative provisions of the Statute.
TERRELL, C. J., concurs. *115
ERNEST AMOS, as Comptroller of the State of Florida, and W. V. KNOTT, as Treasurer of the State of Florida, Appellants, v. JOHN E. MATHEWS, Appellee.
THE STATE OF FLORIDA ON THE RELATION OF FRED H. DAVIS, Attorney General, Relator, v. DOYLE E. CARLTON, as Governor, ERNEST AMOS, as Comptroller, and W. V. KNOTT, as Treasurer, ex officio members of the Board of Administration, and ERNEST AMOS as Comptroller, and W. V. KNOTT as Treasurer of Florida and ex officio Treasurer of each of the Counties of the State of Florida, Respondents.
Division A.
Quo warranto; Original Jurisdiction.
Addendum
The extraordinary session of the legislature for 1929 enacted Senate Bill One, which is now Chapter 14486, Laws of Florida, and Senate Bill Five, *66 which is now Chapter 14575, Laws of Florida. Both laws are inpari materia and will be referred to hereafter as "Senate Bill One" and "Senate Bill Five."
Senate Bill One was approved and became effective June 21, 1929. It creates a depository for certain funds of counties and special road and bridge districts, authorizes the issuance of refunding bonds by said counties, and special road and bridge districts, provides for a Board of Administration composed of the Governor, Comptroller, and State Treasurer, whose duties shall be to administer and disburse such funds as come into their hands under the terms of the said Act. It also embraces other provisions immaterial to this treatment.
Senate Bill Five was approved June 21, 1929, and became effective July 1, 1929. It amends Sections One and Four of Chapter 9120, Acts of 1923, Laws of Florida, the same being an Act imposing a license tax on gasoline or other like products of petroleum, providing for reports of sale of such commodities to the Comptroller of the State of Florida and providing for the distribution of the moneys derived from such tax and fixing a penalty for the violation of the provisions of said Act. Senate Bill Five is not materially different from the Acts passed in 1921, 1923, 1925, and 1927 affecting the same subject matter except in the method of the levy of the taxes and the apportionment of the proceeds of the tax collected. The pertinent provisions of both Senate Bills One and Five will be quoted and treated later in this opinion. A fuller statement of them here would, therefore, be superflous.
On July 5, 1929, John E. Mathews filed his bill of complaint in the Circuit Court of Leon County against Ernest Amos as Comptroller and W. V. Knott as State Treasurer seeking to restrain them from undertaking any proceedings authorized under Senate Bill One and to restrain the *67 levy, collection, and apportionment of the tax as authorized by Senate Bill Five. The prayer of the bill of complaint seeks to strike down Senate Bills One and Five on various and sundry constitutional grounds. The chancellor overruled the demurrer to the bill of complaint and upheld the legality of the levy as to each and all taxes imposed. He further decreed that the second and third gas taxes were county taxes, that the apportionment of the third gas tax was in violation of Section Five, Article Nine of the Constitution but that under the terms of Senate Bill Five the second gas tax and the third gas tax should be apportioned to the counties in the proportion collected in such counties. It was also decreed that the fourth gas tax was a State tax, one third of which should be apportioned to the counties in equal parts for road purposes and that two thirds thereof should be apportioned to the counties for public school purposes as provided by Section Three and One-Half (3 1/2) of Chapter 14573, Acts of 1929. Defendants below appealed from that decree and complainants filed cross assignments of error.
Coincident with the filing of the bill of complaint in the Circuit Court of Leon County, the State on relation of the Attorney General filed in this Court a motion for leave to file an information in the nature of a quo warranto against Doyle E. Carlton as Governor, Ernest Amos as Comptroller, and W. V. Knott as State Treasurer, who ex officio are members of and constitute the Board of Administration, and Ernest Amos as Comptroller, and W. V. Knott as State Treasurer, and ex officio treasurer of each of the counties of the State of Florida as provided in Senate Bill One. This motion was granted and a rule was issued directed to the said Doyle E. Carlton as Governor, Ernest Amos as Comptroller, and W. V. Knott as State Treasurer, who ex officio are members of and constitute the Board of *68 Administration, and Ernest Amos as Comptroller, and W. V. Knott as State Treasurer, and ex officio treasurer of each of the counties of the State of Florida as provided in said Senate Bill One, requiring them to show cause on Monday, the 15th day of July, A.D. 1929, why the said writ of quo warranto, as prayed for should not issue, requiring them to show by what warrant or authority they exercise the offices, franchises, and powers as aforesaid.
There was a demurrer to the information in the quo warranto suit which raised substantially the same questions as the assignments of error in the injunction suit. The whole matter is now before us on appeal from the decree of the chancellor in the injunction suit in the demurrer to the information in thequo warranto suit. Both causes raising substantially the same questions will be treated and decided in this opinion.
With the exception of the assignments of error predicated on vagueness, indefiniteness, uncertainty, and ambiguity every question brought here for our determination is grounded on the asserted violation of some provision of the State or Federal Constitution. In the decision of such questions both bench and bar must at all times be impressed with the weight of the following canons of statutory construction: (1) On its face every Act of the legislature is presumed to be constitutional; (2) Every doubt as to its constitutionality must be resolved in its favor; (3) If the Act admits of two interpretation one of which would lead to its constitutionality and the other to its unconstitutionality the former rather than the latter must be adopted; (4) The constitutionality of a statute should be determined by its practical operation and effect; (5) In determining its constitutional validity courts should be guided by its substance and manner of operation rather than the form in which the Act is cast; and (6) After indulging *69 all presumptions in favor of the Act if it is found to be in positive conflict with some provision of organic law it becomes the duty of the court to strike it down. With these principles to guide us we will now analyze and decide the question brought here for our determination.
It is first contended that Senate Bills One and Five are void for vagueness, ambiguity, indefiniteness, and uncertainty.
Unaccompanied by a bill of particulars this criticism is abstract and nebulous. It cannot be successfully lodged against Senate Bill One. We find it to be clear, direct, and positive in terms and its import not subject to reasonable doubt. So much cannot be said in support of Senate Bill Five. Nothing can be said in commendation of its draughtmanship. It is crude and incoherent but out of it all we think that it is quite possible for men of common sense and reason to divine the legislative intent and to provide the means necessary for its execution. This we understand to be the test that the instant challenge must overcome.
Where an Act of the legislature is challenged on the ground of vagueness, indefiniteness, uncertainty, or ambiguity it must be so vague, indefinite, uncertain, or ambiguous as a whole that men of common sense and reason are unable to determine with any degree of certainty what the legislature intended, or that its terms are so conflicting or inconsistent that it becomes meaningless. It must be so meaningless and incapable of being given effect under any reasonable interpretation that may be placed on it that the courts would not hesitate to hold it void. The fact that it may offend against the rule in some of its provisions is not enough so long as it is capable of execution in its essential provisions and does not impinge on some constitutional provision. Curry v. Lehman,
It is next contended that Senate Bills One and Five violate Section 16 of Article 3 of the Constitution in that they are misleading, that the subject matter is not briefly expressed in the title and that they embrace more than one subject and matter properly connected therewith.
Determination of this contention necessitates an examination of both the title and body of the Acts assaulted. It is not practicable to set out the body of said Acts in haec verba. The title to Senate Bill One is as follows:
"AN ACT Providing for Depository of Sinking Funds and Delinquent Taxes and Other Moneys for Road and Bridge Districts of the State or Otherwise, Authorizing the Issuance of Refunding Bonds by Said Counties and Special Road and Bridge Districts, and Providing for the Creation of a Board of Administration and the Disbursement of Such Funds to Pay Such Indebtedness and the Use of Any Surplus in Any County for the Construction and Maintenance of Roads and Bridges."
The title to Senate Bill Five is as follows:
"AN ACT to Amend Sections 1 and 4 of Chapter 9120, Laws of Florida, Acts of 1923, Entitled 'An Act Imposing License Tax Upon Gasoline or Other Like Products of Petroleum; Providing for Reports of Sale of Such Commodities to the Comptroller of the State of Florida; Providing for the Distribution of the *71 Monies Derived from Such Tax and Fixing a Penalty for the Violation of the Provisions of This Act, and to Repeal all Laws in Conflict With This Act,' as Amended by Section 1 of Chapter 10025, Laws of Florida, Acts of 1925, and as Further Amended by Chapter 12037, Laws of Florida, Acts of 1927, Said Sections 1 and 4 Being Sections 1153 and 1156 of the Compiled General Laws of Florida, 1927."
This Court is committed to the well recognized doctrine that the title of a bill need not be an index to the contents of the Act. If it fairly gives notice of the subject of the Act so as to reasonably lead one to an inquiry into its contents that is sufficient. State ex rel. Moodie v. Bryan,
The specific criticism of the title to Senate Bill One is that it appropriates money from the State treasury and does not give notice of such appropriation. It is hardly necessary to say that Senate Bill One is now legislation and that its primary purpose is to provide a practical economic system to administer certain funds provided for counties and special road and bridge districts for road and bridge purposes. This purpose is accomplished through a Board of Administration composed of State officers which it creates. It does not levy a tax or make an appropriation, it administers funds provided by other statutes, abolishes bond trustees, withdraws certain powers from Boards of County Commissioners and authorizes the issuance of refunding bonds, but these are mere incidents to the main purpose of the Act. Fine v. Moran,
Senate Bill Five, as its title indicates, imposes a license tax on the sale of gasoline and amends all previous legislation on the same subject matter. Chapter 8411, Acts of 1921, Laws of Florida, was the initial Act imposing a license tax on gasoline and other like products of petroleum. At each recurring session of the legislature the parent Act has been amended with little or no variation in the title except to indicate the amendments which have generally been limited to an enlargement of the tax. The machinery for its collection has in some respects been improved but not materially changed. In Amos v. Gunn,
It is next contended that Senate Bill Five is unconstitutional because its provisions apportioning the second, *73 third and fourth gas taxes to the several counties of the State were enacted in the alternative.
No constitutional provision is cited which is claimed to be violated by the alternative provisions of Senate Bill Five but appellee rests his contention on the ground that those provisions amount to a delegation of legislative power. Legislative Acts stated in the alternative which attempt to delegate legislative power or which alternatively vest discretionary power in designated officers to enforce, or which contain inconsistent alternatives and for other reasons not necessary to state, might be unconstitutional but that is not the case with the Act under consideration. The alternative provisions in Senate Bill Five relate only to the distribution of the proceeds of the tax collector, the said tax being imposed by the Act in definite and unconditional terms. If the primary distribution of the tax is constitutional all the alternatives become ineffective but if the primary distribution is unconstitutional the Act mandatorially requires that it be distributed in another manner which is directly and positively stated. The alternative provisions of Senate Bill Five carry no authority whatever for the exercise of discretion on the part of, or the delegation of legislative power to anyone. The courts in this country have repeatedly upheld such provisions. In Munn v. Finger,
It is next contended that Senate Bills One and Five are violative of Section Eleven of Article Sixteen of the Constitution, which is as follows.
No extra compensation shall be made to any officer, agent, employee, or contractor after the services shall have been rendered, or the contract made; nor shall any money be appropriated or paid on any claim, the subject matter of which shall not have been provided for by pre-existing laws, unless such compensation or claim be allowed by bill passed by two-thirds of the members elected to each house of the Legislature.
This contention is bottomed on the assumption that the distribution of the second and third gas taxes among the counties of the State for road indebtedness as provided in Senate Bill Five is tantamount to an undertaking on the part of the State to assume and pay a moral obligation to the counties and that if such assumption is true the Act must be approved by two-thirds of the members elected to each house of the legislature.
An examination of Section Eleven of Article Sixteen discloses that it applies only to two classes of claims against the State, viz: (1) Extra compensation to officers, agents, employes, or contractors after the service rendered or the contract made, and (2) Claims against the State, the subject matter or basis for which were not provided for or authorized by pre-existing law. As to either or both such *75 claims they can be paid only by an appropriation approved by two-thirds of the members elected to each house of the legislature. Both these classes of claims are personal, the first for extra compensation on an authorized contract and the second for compensation on an unauthorized contract. In the case at bar there is no claim of any kind against the State involved. The last quoted provision of the Constitution has no application whatever.
It is next contended that by the inclusion of the Governor, Comptroller, and State Treasurer on the State Board of Administration as provided in Senate Bill Five they are required "to perform the functions of more than one office under the government of the State at the same time" contrary to Section Fifteen of Article Sixteen of the Constitution.
Senate Bill One provides for the organization of a State Board of Administration to be composed of the Governor, Comptroller, and State Treasurer, and as members of such board imposes on them certain powers and duties. In this situation the question raised must turn on the proposition of whether or not the powers and duties imposed on the Governor, Comptroller, and State Treasurer as members of the State Board of Administration are such as to constitute them the holders of or performing the functions of more than one office under the government of the State at the same time as contemplated by the pertinent part of Section Fifteen of Article Sixteen of the Constitution as above quoted.
The term "office" implies a delegation of a portion of the sovereign power to, and the possession of it by the person filling the office. State ex rel. Clyatt v. Hocker,
In Whitaker v. Parsons,
Sections Twelve, Thirteen, Fourteen, Fifteen, and Sixteen of Senate Bill One provide for the organization of and define the powers and duties of the State Board of Administration. Inspection of these sections discloses that the State Board of Administration is the mere fiscal agent of the counties together with certain road and bridge districts in this State for the economic, safe keeping, and distribution of road and bridge funds that come into their hands by virtue of the terms of Senate Bills One and Five. Each member of the State Board of Administration is required to give bond for the forthcoming of any funds that come into their hands and the State Treasurer is made a county treasurer ex officio for the several counties of the State. Such duties are nothing more than additional duties imposed on the Governor, Comptroller, and the State Treasurer and are in no wise inconsistent with their constitutional duties as such or their duties as administrative officers of the executive department.
The contention that Senate Bill One makes the State Treasurer county treasurer ex officio of each county of the State contrary to the provision of the Constitution under consideration is completely answered by Section Six of Article Eight of the Constitution as amended in 1914. Section Six of Article Eight directs that "the legislature shall provide by law for the care and custody of all county funds." In providing for the "care and custody of all county funds" the discretion of the legislature is unrestricted, and so long as a sensible, reasonable, workable plan is devised it should be upheld. The legislature may provide, and has, in fact provided for keeping certain county funds in one way and other county funds in another way, there being no constitutional limitation laid on it in respect to the custody of either county or road district funds. It was not necessary to the validity of the Act to *78 designate the State Treasurer as county treasurer ex officio, the "care and custody of all county funds" might have been committed to him by official title. On the adoption of Section Six of Article Eight of the Constitution as amended in 1914 the provisions of Sections Four and Seventeen of Article Sixteen in so far as they apply to the office of county treasurer became obsolete and the power of the legislature in the premises became absolute. The reason and policy of the Act though obvious are no concern of the Court. We may assume that it was actuated by a stern necessity.
It is next contended that Senate Bill One is violative of Section One of Article Three of the Constitution in that it delegates legislative power to the State Board of Administration and that it is violative of Section Twenty-seven of Article Three of the Constitution in that it creates new offices and provides for filling them in an unconstitutional manner.
In response to the contention that Senate Bill One creates new offices and provides for filling them in an unconstitutional manner, it is sufficient to say that this contention is fully answered in the negative by our treatment and disposition of the question immediately preceding this one. To determine the contention that Senate Bill One delegates legislative power to the State Board of Administration contrary to Section One of Article Three of the Constitution it becomes necessary for us to examine these provisions of Senate Bill One defining the powers of the State Board of Administration. In fine, the Act directs the board to make an estimate each year of all moneys available to each county and special road and bridge district for the ensuing fiscal year, it is also directed to anticipate and appropriate certain funds in the Act designated to the principal, interest, and sinking fund of *79
the bonds of said counties and the Comptroller is required to notify the proper county officers of the amounts so found to be available for interest, sinking fund, and principal requirements. If the amount is sufficient to meet all principal, interest, and sinking fund requirements the county commissioners are directed to make no ad valorem tax levy for that year but if found to be insufficient the county commissioners are required to levy an ad valorem tax sufficient to meet the deficit. It is also provided that all banks selected for depositories by the State Treasurer as county treasurer ex officio shall be approved by the State Board of Administration and that county commissioners may issue refunding bonds on approval of the said board. The State Board of Administration in other words is clothed with nothing but administrative duties, the county commissioners have full power to fix the rate and make the levy of all ad valorem taxes, to issue refunding bonds, and administer the general affairs of the counties and special road and bridge districts. None of these duties are legislative. This reasoning is amply supported by State v. Allen,
It is next contended that Senate Bills One and Five impair the right of local self-government.
This is a cryptic contention. There is no attempt to define the scope of local self-government as so used or to state to what extent or in what manner the right therein is impaired. It is alleged that Senate Bills One and *80
Five transfer the powers and duties of county officers from the various counties to a central board at Tallahassee contrary to the letter and spirit of the Constitution. In our argument on the preceding question we demonstrated that there was no constitutional inhibition against withdrawing from or enlarging the powers and duties of constitutional State or county officers so long as their duties as defined by the Constitution are not interfered with. The following cases also support this view: State ex rel. Buford v. Fearnside,
The principle of local self-government means that local affairs shall be decided upon and regulated by local authorities, and that the citizens of particular districts have the right to determine their own public concerns and select their own local officials without being controlled by the general public or by the State at large. Black Constitutional Law, 373, 374. Local self-government as we know it is an Anglo Saxon creation and had its beginnings in the early civil divisions of England called counties, hundreds, tithings and towns, they being the predecessors of the several divisions of our state and date back to the time of Alfred. Our strength as a self-governing people may be attributable to the distribution of governmental powers among the local political subdivisions of the State and the exercise of these powers by the people of the locality. Rathbone v. Worth, 40 N.Y. Supp. 535, 542,
It is also urged in this connection that Senate Bills One and Five are in conflict with the spirit of the Constitution. No two critics would agree on just what the attribute or quality of the Constitution is and the briefs of counsel give us no light on the subject. Someone referred to it as "that convenient refuge of loose thinking which is vaguely called the spirit of the Constitution." It is enough to say here that this phase of the question is conclusively answered by this Court in a complete refutation of the idea that the spirit of the Constitution may supply the test of the validity of a legislative enactment. State v. Johns,
It is next contended that those provisions of Senate Bills One and Five which attempt to levy a tax and distribute the proceeds thereof to counties and road districts for the purpose of paying the principal and interest of their bonded indebtedness for roads violates Section Six of Article Nine of the Constitution relating to the issue of State bonds which is as follows: *83
"The Legislature shall have power to provide for issuing State bonds only for the purpose of repelling invasion or suppressing insurrection, or for the purpose of redeeming or refunding bonds already issued, at a lower rate of interest."
This language is clear and unambiguous. It prohibits the issuing of State bonds except for repelling invasion, suppressing insurrection or for refunding bonds already issued at a lower rate of interest. We think a State bond as here used must have reference to a contractual obligation to pay money or something of value. Here it is insisted that the distribution of the proceeds of the tax levied by Senate Bill Five to the counties and special road and bridge districts with the direction to apply such proceeds to the principal and interest of their bonds should be construed as such a contractual obligation on the part of the State, although said bonds are not, never have been, and under the terms of the Act never can be State bonds or State obligations of any kind. To support this contention appellee relies on Cheney v. Jones,
In Cheney v. Jones this Court construed certain provisions of Article Twelve of the Constitution of 1868 which authorized the Legislature to provide for raising revenue sufficient to defray the expenses of the State for each fiscal year and to "issue State bonds bearing interest, for securing the debt." The Legislature of 1871 and 1873 authorized a bond issue for the purpose of meeting appropriations which it had made and intended to make in the future but for which no indebtedness existed at the time of the passage of the Act. This Court held that such bonds could not be issued nor could a tax be levied to pay them. *84 The Constitutional provisions construed and applied and the facts supporting Cheney v. Jones are not in point with and do not support the instant case.
In Advisory Opinion to the Governor this Court construed Chapter 12297, Acts of 1927, authorizing the State Road Department to borrow money and execute its notes therefor to meet obligations incurred in executing its budget of maintenance and construction for the current year. We held that the State Road Department was a State agent, exercising a part of the sovereign power of the State and that any debt incurred by it pursuant to lawful authority is a State obligation forbidden by Section Six of Article Nine of the Constitution.
In Martin v. Dade Muck Land Company this Court had under consideration Chapter 12016, Acts of 1927, which provides for the issuance of twenty million dollars of bonds of the Everglades Drainage District. The Act obligated the State to pay the bonds and provided for State funds to pay them in the event the drainage district failed to do so, they were obligations of the drainage district without any finding that they were beneficial to the State, though under the terms of the Act the bonds constituted a contract with the holder enforceable ultimately against the State. Chapter 12016, Acts of 1927, was apparently designed to impose an obligation on the State for the benefit of the Everglades Drainage District and with State credit to secure the purchasers of bonds sold under it. The rules promulgated by the governing board of the district (Chapter 12017, Acts of 1927) also required the bonds to recite that the ad valorem taxes levied against the district would be paid from the funds of the district or from funds appropriated by the State for that purpose. Such affirmative declarations as these imposing a bonded obligation on the State not for the purpose of repelling invasion or funding *85 bonds already issued were in the teeth of Section Six of Article Nine of the Constitution and were properly held to be so.
In the case at bar we are confronted with no such an array of facts. Neither of the statutes under attack imposes an obligation on the State by contract or otherwise, no debt is created or assumed, no consideration of any kind passes to the State, the State borrows nothing nor does it receive anything, it makes no promise of any kind, it pledges nothing, and the body of the Act in as clear terms as is possible for language to express, negatives any intent or purpose on the part of the State to assume or become responsible directly or indirectly for county, district, or other obligations, Sections Eight and Twenty of Senate Bill One being as follows:
"Section 8. It is hereby declared that all bonds heretofore issued by any county or special road and bridge district, and outstanding at the time of the passage of this Act, and issued for the purpose of obtaining funds to pay for the construction of roads or roads and bridges, and all refunding bonds which have been issued by any county or special road and bridge district for the purpose of constructing roads or roads and bridges, shall remain obligations of said counties or special road and bridge districts respectively, and each of said counties or districts shall be legally liable for the full amount of its bonds so issued by it outstanding, together with interest thereon until paid.
"Section 20. It is hereby expressly declared that it is not the purpose or intention of this Act or any part hereof to obligate the State of Florida, directly or indirectly or contingently, for the payment of the obligations of any counties or the obligations of any *86 special road and bridge district thereof; and this Act is not to be construed as obligating the State of Florida to the holders of said bonds to make any payment of the same, nor shall holders have any right to enforce the appropriation of the moneys hereinabove provided for. It is further declared that appropriations are made specifically for the benefit of the taxpayers and property owners of the State of Florida and for the purpose of rendering assistance to the various State agencies which have already performed part of the functions resting upon the State, and this Act shall be subject to amendment, alteration, or repeal at any time."
At best, all that can be said of Senate Bills One and Five is that they impose an excise tax on the sale of gasoline and other like products of petroleum, uniform throughout the State and distribute a portion of the proceeds to the counties and road districts for road and bridge purposes, the Act requiring that said proceeds be used by the counties and road districts in retirement of their outstanding road bonds. The State does not undertake to pay or become responsible for those bonds. It does not undertake to apply the proceeds distributed to the payment of the bonds and in fact this designation that the proceeds of the tax to the payment of county road and district bonds is the only respect in which it is different from other Acts that have been frequently passed by the Legislature distributing the proceeds of tax funds collected by the State to the counties. For concrete cases in which this has been done see the following: Section 966, Rev. Gen. Stats.; Section 1238, Comp. Gen. Laws 1927; Chapter 6421, Acts of 1913; Section 889, Rev. Gen. Stats.; Section 1145, Comp. Gen. Laws 1927; Chapter 6421, Acts of 1913, and Chapter 8556, Acts of 1921; Section 1627, Rev. Gen. Stats., *87 2477 Comp. Gen. Laws; Section 1790, Rev. Gen. Stats; Section 2841, Comp. Gen. Laws; Chapter 7328, Acts of 1917; Chapter 8553, Acts of 1921; Chapter 9120, Acts of 1923; Chapter 10025, Acts of 1925; Section 438-439, Gen-Stats. of 1906, and Section 803 et seq., Rev. Gen Stats; Section 1050 et seq., Comp. Gen. Laws 1927. The whole theory of the Acts is to relieve counties and road districts which had undertaken to perform a duty resting on the State to provide roads and bridges and which the legislature declared in Section One of Senate Bill One had contributed substantially to the general welfare, settlement, and development of the State, the relief so provided being subject to alteration or repeal at any time. It is quite as important for the State to conserve the financial integrity of its various subdivisions as it is to conserve its own and within constitutional restrictions the legislature may exercise its taxing power to do so.
It is admitted that the building of good roads is a State function for which the State may exercise its taxing power. If this is true there is certainly no sound reason why they should not be constructed or their construction aided by counties or other State agencies. At any rate this is what has actually been done because every road constructed by the counties or special road and bridge districts has been constructed by State authorization. It has been an oft repeated practice for the Legislature to apportion the proceeds of taxes collected back to the counties. We have searched diligently and have found no organic legal restraint on the practice and can conceive of no good reason why it should not be done or why it is not competent for the Legislature to direct the manner of its use when apportioned.
In this holding we do not in the least recede from the rule approved by this Court, so well and tersely stated by *88
Mr. Justice ELLIS in Advisory Opinion to the Governor,
Our State Constitution is not an enabling Act, neither is it a grant of enumerated powers to the Legislature. It is a restraining act and such acts as it does not in express terms withdraw from and prohibit the Legislature from doing, it (the Legislature) is at liberty to do or authorize to be done in a lawful manner.
We have purposely not involved our discussion of Section Six of Article Nine with the alleged violation of Section Two of Article Nine, relating to the power of the Legislature to raise revenue sufficient to defray the expenses of the State. We do not see that the subject matter of Section Two and Six of Article Nine are interrelated and it is not made to appear that a discussion of Section Two has any relation to this treatment unless the statutes brought in question impose an unconstitutional obligation on the State, then, in that event such obligation would not be an expense of the State. *89
It is next contended that Senate Bills One and Five are violative of Section Two of Article Nine of the Constitution, which is as follows:
"The Legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year, and also a sufficient sum to pay the principal and interest of the existing indebtedness of the State."
Appellee urges that under this provision of the Constitution the Legislature can levy taxes only for the purpose of defraying the expenses of the State, that Senate Bill Five attempts to distribute a portion of the gas tax levied therein to the counties and road districts to apply on their road bonds, that such a distribution is not an expense of the State and is in consequence thereof invalid. In support of this contention appellee relies on Cheney v. Jones,
We do not think that Barrow v. Moffett has any application whatever to the case at bar. In that case this Court had under consideration a decree of the lower court validating a bond issue of the Board of Public Instruction of Highlands County pursuant to Chapter 12844, Acts of 1927, the purpose of said bonds being to raise funds to pay the floating indebtedness of said county incurred in supporting its public free schools. The Act and the bond issue were held invalid because of conflict with Sections Eight and Nine of Article Twelve of the Constitution. There was no question about the legality of the debt that the bonds were issued to pay. That was admitted. The effect of the decision was to hold that bonds could not be issued to pay a past due indebtedness from the sources provided. *90 We do not see that it furnishes any guide to an interpretation of the question here raised.
In Advisory Opinion to the Governor, November 23, 1927, we held that Chapter 12297, Acts of 1927, authorizing the State Road Department to borrow money against its anticipated revenues and execute its notes therefor was violative of Section Six of Article Nine of the Constitution. Such an obligation having been held void it necessarily follows that the payment of it is not an expense of the State that taxes may be imposed to pay as contemplated by Section Two of Article Nine of the Constitution.
In addition to what we said about Cheney v. Jones in treating the question immediately preceding this, that case also holds that Section Two of Article Twelve of the Constitution of 1868, Section Two of Article Nine of the Constitution of 1885, is a limitation on the power of the Legislature to raise revenue, which can only be done to defray the expenses of the State. This interpretation of Section Two of Article Nine was followed in the Advisory Opinion to the Governor November 23, 1929, but neither of these cases attempted to define the phrase "expenses of the State," or to suggest that such a distribution to the counties and road districts as is now under attack cannot be classed as such an expense.
It would be folly for us to undertake to enumerate any arbitrary list of expenditures and decree them to answer the question, what are "expenses of the State." In Cheney v. Jones this Court held that "expenses of the State" includes such expenditures as may be authorized by the Legislature and which are not prohibited by the Constitution. It was also held that this provision was so broad that there could be no necessity to travel outside its terms for the legitimate exercise of all the powers of government. We think it may easily be construed to cover any expenditure *91 for a public purpose not prohibited by the Constitution. We also held in Cheney v. Jones that it has been established on high judicial authority that as to the State governments there is no limitation upon the power of the Legislature as to the amount or objects of taxation; that the interest, wisdom, and justice of the legislative body, and its relation with its constituents, furnish the only security against unjust and excessive taxation, unless there be express restrictions upon that power in the Constitution.
Appellee predicates this contention in part on the theory that the apportionment to the counties now under consideration is invalid because not for a "State purpose." In Section Five of Article Nine it is provided that the Legislature shall authorize the counties and municipalities to assess taxes for county and municipal purposes and for no other purpose. On account of litigation arising from this provision the phrase "county purpose" has come to have a well defined meaning but there is no similar language in the Constitution from which the term "State purpose" can be coined nor in reason can there be, because of the wide range that any limitation placed on a tax for State purposes must take over that for a county purpose. There can be no objection to the use of the term "State purpose" but it can have no such restriction on the taxing power as that implied by a "county purpose." In the scope of their application there is nothing analogous between a "State purpose" or "expenses of the State" and a "county purpose" by which they can be compared. They are not convertible terms. If "expenses of the State" includes such expenditures as may be authorized by the Legislature and which are not prohibited by the Constitution, it must necessarily follow that what are "expenses of the State" is a matter for legislative determination. *92
This Court has repeatedly held that a legislative determination as to what constitutes a county purpose is entitled to such weight as to require allegation and proof, showing that contrary to justify the courts in overthrowing the legislative judgment. Jackson Lumber Company v. Walton County,
The law is well settled that the control of all public highways is vested in the State absolutely without any constitutional limitations or restrictions, that the duty of constructing and maintaining highways is an obligation and function of the State, that the actual construction of highways may be delegated by the Legislature to counties and road districts as agents of the State, but even when this is done and the roads paid for by the counties the State may at any time assert its control and withdraw the management of the roads in any county from the county commissioners and vest such control in the State Highway Department or any other body or board it may see fit. State ex rel. Buford v. Fearnside,
From the foregoing it must follow that a public highway is essentially a State instrumentality, that counties and road districts as corporate entities have a mere qualified proprietary right in them even though constructed by them with local taxes, that the Legislature may at any time authorize the construction of roads by counties or road districts, and that they are subject at all times to legislative control.
Section Three of Article Nine of the Constitution commands that no tax shall be levied except in pursuant of law. We construe this provision to mean that all taxes must be imposed by organic law or by a valid statute. Section Five of Article Nine recognizes three distinct classes of taxes, an ad valorem tax, a capitation tax and a tax on licenses. It is required that the capitation tax be applied exclusively to common school purposes but there is no restriction or limitation whatever on the application of the license tax. The matter of levying a license tax is an inherent legislative power and being inherent in the Legislature it necessarily follows that it may be levied for a county purpose or a State purpose. It may be levied and collected by the State and distributed among the counties as the Legislature may deem advisable or the *94 State may levy it for State purposes and authorize the counties to levy it for county purposes, both methods having been practiced during our constitutional history.
A State excise tax must be imposed on a uniform basis throughout the State but a county excise tax may be imposed uniformly in all the counties, or it may be imposed in only a portion of the counties and omitted in others. The power of the State to impose a State license tax and a county license tax on the same subject to be collected at the same time and by the same officers is settled beyond question in this State. State ex rel. Bonsteel v. Allen,
In Amos v. Gunn,
In this holding there is nothing inconsistent with the decision in Cheney v. Jones, supra. In that case we were confronted by an Act of the Legislature imposing an ad valorem tax on real and personal property to retire matured and anticipated indebtedness of the State, while in the instant case we are considering two Acts providing for the levy, collection, and distribution of an excise tax imposed pursuant to Section Five of Article Nine of the Constitution. In the imposition and in the enforcement of an ad valorem and an excise tax there is little in common. As to the ad valorem tax uniformity and equality of rate and just valuation are mandatory, while a different rule applies as to an excise.
The policy and expediency of an excise tax is always a question for legislative determination. The objects on which it is imposed, the amount of the tax, and the standard employed to measure the tax are matters in which the legislative discretion may take a broad range. The judiciary is not authorized to revise the judgment of the legislature on those matters unless it is shown to be unequal, grossly oppressive, or offends against every impulse of common right and justice. Connecticut Insurance Company v. Commonwealth,
It is next contended that Senate Bills One and Five not only impose unconstitutional and invalid taxes but that the distribution of the taxes thereunder is invalid.
That part of Senate Bill Five imposing the tax brought in question and providing for its distribution is as follows:
*97"Section 1. Every dealer in gasoline or any other like product of petroleum, under whatever name designated, in this State shall pay a license tax of five dollars to the State and in addition thereto a tax, herein termed gas tax, of five cents per gallon for every gallon of gasoline, or other like products of petroleum sold by him and upon which the tax herein provided has not been paid, or the payment whereof has not been assumed by a person preceding him in the handling of said lot of products, said tax of five cents per gallon being made up of four separate taxes, being:
"First Gas Tax: A tax of two cents per gallon for the State of Florida, for the use of the State Road Department, as provided by law.
"Second Gas Tax: A tax of one cent per gallon to be apportioned to the several counties of the State in the proportion collected in such counties respectively.
"Third Gas Tax: A tax of one cent per gallon to be apportioned to each county in the State in the proportion that the indebtedness authorized, issued and outstanding in the county for road purposes or for road and bridge purposes by the county and/or by any special road and bridge district or districts therein on April 1, 1929, bore to indebtedness of the same class of all counties and/or special road and bridge districts of the State of Florida.
"Fourth Gas Tax: A tax of one cent per gallon to be apportioned equally among the several counties of the State.
"If the foregoing apportionment of either the second or the third gas tax shall be held unconstitutional or ineffective for any reason, then the apportionment thereof shall ipso facto be the apportionment herein provided for the other of said two taxes.
"The second and third gas tax apportioned to each of the several counties as above provided shall be applied to the payment of interest and principal and/or sinking funds of indebtedness for road and bridge construction bears to the total amount of such indebtedness issued and now outstanding in all the counties heretofore contracted by each such county respectively and by the special road and bridge districts in such county and/or the construction and maintenance of roads and bridges in such county.
"If the foregoing purposes of application of either the second or third gas tax shall be held unconstitutional or ineffective for any reason, such tax shall be paid into the general revenue funds of the counties to which the tax is apportioned, respectively. Two-thirds of the fourth gas tax after apportionment to each of the several counties shall be used for school purposes and one-third thereof for the construction of roads and bridges in the county to which it is apportioned; provided, however, if the county board of public instruction should find that any part of the amount so allotted to school purposes is unnecessary for an eight months' term, such part shall be paid by the county board of public instruction to the board of county commissioners and shall be used for road construction and maintenance. If the apportionment of this fourth gas tax for such purposes or either of them *98 shall be held unconstitutional then such apportionment shall be made in such manner as may be lawful."
The "First Gas Tax" is not under attack and is not, therefore, before us. The "Second Gas Tax" and the "Third Gas Tax" are apportioned to the counties on a different ratio but for a like purpose so they will be treated together. The "Fourth Gas Tax" will be reserved for treatment later in this opinion.
The "Second Gas Tax" is a tax of one cent per gallon and is apportioned to the several counties of the State in the proportion collected. The "Third Gas Tax" is also a tax of one cent per gallon and is apportioned to the several counties of the State in the proportion that the authorized outstanding indebtedness for roads and bridges in said counties, including the indebtedness of special road and bridge districts therein, incurred prior to April 1, 1929, bore to the total of such indebtedness in all the counties and special road and bridge districts in the State. It is also required that after distribution among the counties the second and third gas taxes shall be applied to the payment of principal, interest, and sinking fund of outstanding road and bridge indebtedness of said counties incurred prior to April 1, 1929.
The contention is that such an apportionment is bad because funds collected in one county are used to pay the debts of other and different counties. If the second gas tax or the third gas tax partook of the nature of an ad valorem tax there might be substance to this contention but the very nature of the tax overthrows and completely rebuts it. The tax is not attached to an article with a fixed situs, the tax is imposed on a "sale" and not on something tangible, the sale on which the tax is based is transitory by nature, the commodity sold may be delivered at the place of purchase or elsewhere within the State, the *99 residence of the consumer may be domestic or foreign, the commodity is often purchased in one county and consumed in the same or in different counties than that where purchased, in theory it is levied and collected at the place of retail but in practice fifty per cent. of it is actually paid for at points outside the State and the remaining fifty per cent. is paid for from a half dozen points within the State, it is an excise tax pure and simple, springing from a source never dreamed of by the makers of the Constitution and in conjunction with the automobile has made a system of good roads throughout the State indispensable which of necessity cannot be restricted by county lines. Any argument to limit the application of the tax under consideration, which is grounded on constitutional limitations effecting ad valorem taxes is beside the issue.
In applying organic rules to such acts as we have here it must be borne in mind, that while constitutional guarantees never vary, the scope of their application must expand or contract to meet the changing conditions of our social and economic order. Of all sciences the law will be the last to become static. It is eternally dynamic, broadening, deepening. It has always and must continually guide the course of development in every field of endeavor. The Constitution was never conceived or intended as a legal clamp and straight-jacket applicable only to the agrarian economic order in which it was evolved. It is on the other hand and instrument of expanding life and its principles must be so applied as to bring within its compass new conditions that constantly develop in the life of our social and economic evolution, otherwise many of the great divisions of the law such as that effecting railroads, telegraphs, telephones, steamships, automobiles, minerals, radios, aeronautics, good roads, and others are impressed with no constitutional guarantees. Euclid v. Ambler *100
Realty Company,
In the absence of constitutional regulation the Legislature has a wide discretion in the distribution and application of the proceeds of a tax. Inequality of assessment is necessarily fatal to the levy but if collected for the public welfare inequality of distribution is not fatal. Cooley on Taxation, Section 1813; Duffy v. Treasurer and Receiver General,
The validity of every tax must be determined upon its own facts and not on the form in which the taxing scheme is cast or manner in which it is clothed. The ultimate controlling test of validity must be revealed by the practical operation and effect of the statute upon existing conditions as applied and enforced. St. Louis Southwestern v. State of Arkansas,
Section Five of Article Nine of the Constitution in defining a scheme of taxation for the guidance of the legislature, contemplates an ad valorem tax on all real and personal property for county and municipal purposes, a capitation tax for common school purposes, and a "tax on licenses." If the tax under consideration was an ad valorem tax imposed by the counties under direction of the legislature it would necessarily have to be used in the counties from which collected, but that is not the case. The second and third gas taxes are imposed by the legislature under its inherent power to provide for a "tax on licenses," they are collected by State officers and distributed to the counties for county purposes. Section 4 of Chapter 9120, Acts of 1923, of which Senate Bill Five is amendatory, speaks of the said taxes as county license taxes. There is no constitutional inhibition on the legislature imposing a license tax for county purposes and apportioning such tax among the counties so long as there is no abuse of legislative discretion. Appellee concedes that under Section Two of Article Nine of the Constitution the Legislature may impose a State excise or other tax for road purposes and distribute said tax among the counties of the State as it sees fit. If this is true it must follow that by virtue of Section Five of Article Nine the Legislature may impose an excise tax for county road purposes and distribute it among the counties as it may see fit there being no constitutional limitations as to such distribution in *102 either case. It is settled by the decisions of this Court that the proceeds of state taxes levied for expenses of the State cannot be used to pay county road bonds but the limitations on the use of such funds as defined in Sections Two and Six of Article Nine of the Constitution have no application to excise taxes imposed by the Legislature and distributed among the counties for county road purposes.
Conditions of life have changed materially since the adoption of our Constitution. Under our social and industrial rearrangement the question of good roads cannot be local. It is no more a county matter than the tariff or currency is a State matter. Its very nature precludes it from being so. A system of good roads is not concerned with county lines. To meet the demand for facilitating the construction of a bigger and better system of roads in this State and to aid the counties in doing this the Legislature in Senate Bill Five has attempted to distribute the proceeds of the taxes raised so as to place the burden of road construction on the object that has made them indispensable and thereby relieve the burden on the home, the farm, the railroad and other properties which if at all, are only incidentally benefited. Senate Bill One expressly declares that the distributions thereunder are made for the benefit of the taxpayers and property owners of the State and for the purpose of rendering assistance to the various State agencies which have already performed part of the functions resting upon the State. The Legislature has in other words come to the realization that as public expenditures increase new sources of revenue must be tapped to meet them and that we cannot continue the old practice of heaping the burden on real estate to do so. To contend that it cannot do this is without support in law or reason. The levy of a tax must be "uniform and equal" but that rule never has, nor can it ever be the *103 dominant rule to control its distribution. If uniformity and equality were required in the distribution of State, county, or municipal taxes we could never provide a through system of roads, a system of higher education, larger expenditures for bridges at strategic points, institutions for the unfortunate and other such objects as are essential to the common good. In its distribution the public welfare is the pole star that must guide the Legislature and unless the method of distribution adopted can be declared to have no reasonable or legitimate relation to the purpose for which distributed it should be held good.
The mere fact that the method of distributing the proceeds of the tax is arbitrary does not defeat it nor is such a procedure now in this State. It is coeval with the Constitution itself. For more than a generation the taxes on the rolling stock and personal property of railroad companies have been distributed among the counties through which the railroad runs in proportion to the mileage in said counties without regard to its actual situs or physical location. Section 966, Rev. Gen. Stats, Section 1238, Comp. Gen. Laws 1927, Chapter 6421, Acts of 1913. A State license tax is imposed on express companies doing business in Florida. It is payable to the Comptroller and the proceeds distributed among the counties on the basis of assessed valuation. (Section 889, Rev. Gen. Stats., Section 1145, Comp. Gen. Laws 1927, Chapter 6421, Acts of 1913, Chapter 8551, Acts of 1921.) The following Acts also distribute State funds to the counties for various purposes not unlike the distribution in the instant case: Section 1627, Rev. Gen. Stats., Section 2477, Comp. Gen. Laws, Section 1790, Rev. Gen. Stats, Section 2841, Comp. Gen. Laws 1927, Chapter 7328, Acts of 1917, Chapter 8553, Acts of 1921, Chapter 9120, Acts of 1923, and Chapter 10025, Acts of 1925. The Legislature has consistently *104 levied an excise tax or authorized the counties to do so and has distributed the proceeds thereof in an arbitrary manner. See Sections 438-439 of General Statutes of 1906, Section 803 et seq., Rev. Gen. Stats. of Florida (Section 1050, Comp. Gen. Laws of Florida 1927). The feature of the Act assailed and Acts of like import have been on the statute books for many years unchallenged and millions of dollars have been collected and expended under them, and while this fact is not sufficient to declare them valid if clearly in conflict with paramount law it is strongly persuasive that the Act is not so clearly unconstitutional as it must be shown to be to make it the duty of this Court to set it aside at this time. If, therefore, the validity of an act must be determined by its practical operation and effect there is ample reason on which we may uphold the validity of Senate Bills One and Five.
It is next contended that the apportionment of two-thirds of the Fourth gas tax for school purposes as required by Senate Bill Five is violative of Sections Seven and Nine of Article Twelve of the Constitution.
Section Seven of Article Twelve of the Constitution provides for the apportionment and distribution of the interest on the State school fund and, "all other means provided," to the several counties of the State in proportion to average attendance. Section Nine of the same article defines the county school fund of the several counties in the State and provides for its apportionment and distribution "as may be provided by law." "Provided that such apportionment and distribution shall be made by general law, based upon some declared principle of classification to be determined by the Legislature."
Senate Bill Five requires that the fourth gas tax be distributed equally among the several counties of the State and that two-thirds of said tax be used for school purposes *105 and one-third be used for road and bridge purposes in the county to which distributed; provided that if the county board of public instruction of any county should find that any part of the two-thirds allotted to it for school purposes should not be necessary for an eight months' term then in that event such part shall be turned over by the county board of public instruction to the board of county commissioners to be used for road construction and maintenance.
The Chancellor below held that this distribution of the fourth gas tax was bad, that said tax was a State tax and that one-third of the proceeds thereof should be distributed to the counties equally to be used for roads and bridges, and that the remaining two-thirds should be apportioned to the counties for school purposes as provided by Section Three and One-Half (3 1/2) of Chapter 14573, Acts of 1929.
The primary purpose of Chapter 14573, Acts of 1929, was to raise special revenue for educational purposes. The title clearly does not cover the distribution of revenue for school purposes not embraced or contemplated in the body of the act and is therefore as to such funds in conflict with Section Sixteen of Article Three of the Constitution requiring that the subject matter of every act be briefly expressed in the title. Courts cannot limit or modify the terms of a statute. United States v. Harris,
It cannot be questioned that the apportionment of two-thirds of the proceeds of the fourth gas tax to the several counties for school purposes would amount to an appropriation by the Legislature as contemplated by Section Nine of Article Twelve of the Constitution. If this premise is correct, the conclusion is inescapable that the apportionment or distribution of said proceeds among the countries must be "made by general law based upon some declared principle of classification to be determined by the legislature." What is a "declared principle of classification" as used in Section Nine of Article Twelve of the Constitution? It is the grouping of counties on the basis of population, attendance, requirements, convenience, similarity of situation or some other reasonable basis of classification in order that their public requirements or interests will be best served by the apportionment. Classification of counties and municipalities or other governmental entities is generally determined by differences in needs, circumstances, situation, necessity, custom, nature and the like. It cannot be employed as a substerfuge or as a means to evade the plain requirements of the Constitution. It appearing that no general law based on any declared principle of apportionment for the distribution of the proceeds of two-thirds of the fourth gas tax for school purposes to the several counties, was enacted said proceeds as the act requires may be apportioned "in such manner as may be lawful." Commonwealth v. Gilligan, 195 Pa. St. 504, 46 Atl. R. 124; Semple v. Pittsburgh,
In practical effect the requirement as to the apportionment of the county school funds as contained in Section Nine of Article Twelve of the Constitution affects nothing but "appropriation by the Legislature," that part of said fund represented by the proportion of the interest on the *107 state school fund and the one-mill state tax having already been apportioned under Section Seven of Article Twelve, and that part represented by the ad valorem tax as required by Section Eight of Article Twelve not being subject to legislative apportionment. Since no general law was enacted for the apportionment of that part of the fourth gas tax appropriated for public free schools, we think that under the terms of Senate Bill Five it may properly be considered as "other means provided" for the support and maintenance of public free schools as defined in Section Seven of Article Twelve of the Constitution and may be apportioned to the counties on the basis of average attendance as therein required.
What has been said in this opinion in regard to the (disposition of) the second gas tax and the third gas tax is applicable to one-third of the fourth gas tax apportioned to the counties for road construction and maintenance.
It follows that the demurrer to the information in the quo warranto suit must be and is hereby sustained and the decree of the Chancellor in the injunction suit as to the apportionment of the "third gas tax" and two-thirds of the "fourth gas tax" and in restraining the application of the "second gas tax" and the "third gas tax" to the payment of district and county road bonds is reversed. In other respects the decree of the Chancellor is affirmed.
WHITFIELD, J., concurs.