54 So. 757 | Ala. | 1910
Lead Opinion
The following act, omitting its caption, was approved August 26, 1909 (Acts Sp. Sess. 1909, pp. 303, 304) :
“Sec. 2. That courts of county commissioners and boards of revenue, where there is levied a road tax, general or special, or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing, repairing or maintaining roads or highways of any description, in the connty, shall pay over each year to each municipality therein one-half of the money collected on such road tax on the property located in such municipality.
“Sec. 3. That such sums when paid over to the municipalities shall be used exclusively for maintaining the streets in the corporate limits of such municipality, provided that if the tax is levied for any particular, class of roads or highways, such sums shall be used on the streets of the municipality for roads of a similar character to such roads or highways.
“Sec. 4. That all laws or parts of laws in conflict with this act, general or special, be and the same are hereby repealed.”
Section 215 of the Constitution of 1901 reads:
“No county in this state shall be authorized to levy a greater rate of taxation in any one year on the value of the taxable property therein than one-half of one per centum; Provided, that to pay debts existing on the sixth day of December, eighteen hundred and seventy-five, an additional rate of one-fourth of one per centum may be levied and collected which shall be appropriated exclusively to the payment of such debts and the interest thereon: Provided further, that to pay any debt or liability now existing against any county, incurred for the erection, construction, or maintenance of
In the recent pronouncement made in Adams v. Southern Railway Company, 167 Ala. 383, 52 South. 439, and in the previous ruling made in Southern Railway Company v. Cherokee County, 144 Ala. 579, 42 South. 66, this court took account of section 215, and in construction of the section established these (as presently important) propositions: That the power to levy and collect the special tax for public roads, bridges, etc., can only be exercised by a county, and not by a fraction thereof, and the tax must, in certain consequence, be imposed and exacted within the rule of uniformity pei*taining to taxation; that the object of the special tax is to satisfy county debt or liability contemplated or then incurred in providing the roads, bridges, etc., defined in the section; and that the application of the funds raised by the special tax must be to the special purposes contemplated in the creation of the power, conferred by exception from a major inhibition against the power to tax beyond' the stipulated limit.
One of the purposes for which the special, exceptional, iax provided for in the section is allowed is for the erection of necessary public roads. - It is apparent, from the terms of the quoted act, that the intent thereof was to bring, by legislative declaration, streets in municipalities within the constitutional term “roads,” and, in consequence, permit the application, in this instance, of a
Section 215, after fixing the general limitation upon the power of counties to tax, excepted, within a stipulated limitation, from the control of the general limitation the power to tax for certain defined purposes. Consistent,with the governmental authority to which the major limitation of taxing power was applied, the exceptions were addressed to the counties as governmental units. It nowhere affirmatively appears from the section that municipalities, in any feature of their organism or authority, were in mind when its major limitation was fixed and qualified by the exceptions minutely defined. Indeed, from the patent fact that in the next succeeding section (216) the taxing power of municipalities is amply dealt with, it cannot be a matter of doubt that in writing and adopting section 215 the makers of the organic law attended only to the county
In view of the separate and separable status of the two minor governments, counties and municipalities, that at least in organism and source of separate sustenance of each provided by the taxing power, it is inevitable that, in order to sustain the application of the funds gathered by special county tax to the improvement or construction of a municipality’s streets, a clear
Coming to the concrete question presented, Does the term “roacls” as employed in section 215, include streets in municipalities? No better means to the correct ascertainment of the constitutional intent in the premises appears than that afforded, as we view it, by the organic law itself. No interpretation of Constitution or statute can be well or safely approved that does not take into account the whole Constitution or the whole enactment. Terms employed in Constitution or statute may, and often do, have diverse meanings, and comprehend when used in one connection what is not intended they should include when used in another connection. For instance, shooting along or across a street was, in Gaston v. State, 117 Ala. 162, 23 South. 682, held to be a violation of the penal statute (Code 1896, § 5354) forbidding shooting across or along a “public road,” upon the evident idea that the gist of the offense defined was the use of firearms in public places; whereas, where the offense charged was the failure to keep a public road in repair, it was ruled in effect, in McCain v. State, 62 Ala. 138, that the omission charged could not be sustained where the neglected part of the roadway had become a part of municipal territory. We doubt not other penal statutes tending to the preservation of public roads
That the Constitution makers did.not intend the inclusion of streets in the term “roads,”- as used in section 215, will appear from reference to sections 220, 223, 225, 227, and 228. In each of these sections the term “street” is employed as aptly descriptive of a thoroughfare in municipalities. Along with its use in that connection the terms “avenues,” “alleys/ “sidewalks,” “street paving,” and “street improvements,” all having reference to urban ways alone, appear. None of these terms even suggest any relation to the rural highway, which, to us, is familiarly known, in statute and decision, as a “public road S'o that we feel impelled to affirm that the makers of the Constitution recognized and wrote to the generally well-understood distinction, in reference, between roads and streets — a distinction thus aptly noted by Stone, J., in McCain v. State: “Manifestly, what we know as a public road or highway has very little resemblance to a street in a village, town, or city. * * They cannot be both a public road of the county, as that phrase is understood, and a street of an incorporated village at one and the same time. One character must yield to the other.”
It must be presumed, in the absence of countervailing expression, that the makers of our organic law were cognizant of the status of decision fixed by McCain’s Case, supra, in respect of the distinction indicated. Being so, it necessarily results, especially in view of the county purpose, as distinguished from other purposes of governmental entertainment, with which the exception in hand deals, that in the use of the term' “roads” municipal streets were not included. If public roads only, as distinguished from streets, were in contemplation of the makers of the Constitution, it is obvious that the Legislature, by mere declaration that a street was a
Looking to the broader view, there is another consideration that leads to the constitutional invalidity of the quoted act. In this state internal county government has long been committed to bodies called “commissioners’ courts” and “boards of revenue.” These institutions exercise the fiscal, as well as many other, powers of county authority. To these institutions reference must necessarily be had, when restrictions on the exercise of the internal county authority are met with in the Constitution. The governmental attributes or powers of such institutions, in respect of internal government and affairs of the county, were said, in Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 576, 578, 17 South. 112, to be in part legislative, in part judicial, and in part executive or administrative. Taking account of the discretion necessarily implied in the effective exercise by these institutions of at least some of the powers referred to in Jeffersonian Publishing Co. v. Hilliard, supra, this court, in Hays v. Ahlrichs, 115 Ala. 239, 248, 22 South. 465, concluded against the equity of a bill to enjoin the building of a vault for the county of Cullman, on a contract therefor by the county body, on the ground that authorized “discretionary powers” were involved, and no mala fides was shown. The satisfactory note at page 93 of 2 American State Reports was referred to in the opinion as collating the authorities.
Section 215, in the proviso under consideration, expressly confines the application of the fund raised by the special tax to the purpose for which it is levied and col
Broadly considered, the sum of the wdiole matter is that the Constitution (by proviso) permits the investment of the counties wdth the special powder to tax for the special purpose of constructing and maintaining public roads, and commands the application of this tax fund to that purpose alone wdiile the Legislature has undertaken by this act to direct the application of the fund, pro tanto, to municipal streets, thereby necessarily denying to rural sections of the counties the benefit •of that percentage of the fund contributed by property owners in municipalities. This would divert, pro tanto, the special fund, specially raised, from the purpose the
In this instance, mandamus is sought, not only to compel the delivery, by the commissioners’ court to the municipality of Birmingham, of one-half of the sum contributed by property in the municipality to the special road tax fund, but also that proportion of the special bridge tax fund contributed by property in the mu-. nicipaiity. The substance, in general purpose, of the act quoted before, was first section 120 of the Municipal Code, approved August 18, 1907. It appears as Code 1907, § 1385, though adopted subsequent to the Code of that year. Affirming the ruling of the learned court below, this section (120) was declared invalid in State ex rel. v. Miller, 158 Ala. 59, 48 South. 496. The mandamus ivas- awarded below on this petition,- but only as to the relief sought in respect of the special road tax. Consistent with the conclusions reached here, the judgment of the circuit court, awarding the writ, must be reversed, and a. judgment will be here rendered denying the writ of mandamus prayed. •
The opinion entertained renders unnecessary the consideration of the other questions raised and argued.'
Reversed-and rendered.
Rehearing
The court is of the opinion that the fund in question was levied under the general power of taxation, and was not the tax authorized under subdivision “a” of section 215 of the Constitution of 1901. We are also of the opinion that Acts 1909, page 304, required the court of county commissioners to pay over to the municipality one-half of all taxes on property, within said municipality, as was levied and collected for maintaining roads and highways. Nor do we think that this act was, as to this particular fund, repealed by the act of the same date (Acts Sp. Sess. 1909, p. 174), readopting the Code of 1907. Whether or not so much of the act, or so much of section 1335, as requires the payment to the municipality of one-half of the tax levied for a specific purpose, under subdivision “a” of section 215 of the Constitution, is valid, we need not decide, as that question is not involved.
The rehearing is granted, the reversal is set aside, and the judgment of the circuit court is affirmed.
Affirmed.
Dissenting Opinion
(dissenting). — The opinion delivered on the original consideration of this 'appeal was adopted as authority for the conclusion in State ex rel. City of Tuscaloosa v. Court of County Commissioners of Tuscaloosa County, 54 South. 763 (affirmed on authority of this case). There was no application for rehearing of that appeal. On the rehearing of this appeal, the majority rule that the tax of one mill for “McAdam roads” was not a special tax within the second proviso of section 215 of the
The writer adheres to the original construction of the order of the board of revenue of Jefferson county, viz., that the levy thereby “for McAdarn roads” was the levy of a special tax for “roads,” and hence the product of the levy was and is subject to the restriction, in application, written in the second proviso of section 215 of the. Constitution. That such levy accurately answers to the accepted description of á special tax, as expressed in State v. Street, 117 Ala. 203, 210, 23 South. 807, and also in 2 Desty on Tax. p. 1186, cannot, as the writer views it, be a matter of doubt. Besides, the intent of the levying body to so characterize the levy “for McAdarn roads” is made entirely clear when reference is had to the just preceding levy, in the order, of “2% mills on the one dollar for the general fund.” Other [undoubtedly special taxes are levied in the order. There is no merit, in my opinion, in the suggestion that there can be no special tax, under the latter proviso of section 215, until the general limitation therein pro
The word “road,” as employed in the Constitution, does not include streets. — McCain v. State, 62 Ala. 138; Wiggins v. Skeggs, 171 Ala. 492, 54 South. 756. See, also, subdivision 26 of section 104; sections 220, 222, 223, 225, 227, and 228.