Hand v. Stapleton

39 So. 651 | Ala. | 1905

SIMPSON, J.

The decision of this, case depends, in a large measure on the construction to be given to the act of February 5, 1901, for the removal of the county seat of Baldwin county. Acts 1900-01, p. 754. Ah this matter has been before this court twice, and the decisions concur in the construct ion of this act. the construction which this court has placed upon said art should not be diftrirb'(d, unless there are cogent reasons for holding that the former construction wan erroneous; but the magnitude and importance of the interests involved, and the fact that the last decision was by a divided court, suggest that it is proper to re-examine the question.

The first section of said act provides that the county neat of said county “is hereby permanently located in the town of Bay Minette.” ¡Sections 2, 3, 4 and 5 appoint the commissioner's and authorize them to receive subscriptions, to sell certain property belonging to the county, and, when they have received solvent subscriptions amounting to |3,000 and a proper site, to advertise for plans and specifications and to award the contract for building the courthouse and jail on the 1st of April, 1901. Section 6 simply directs the commissioimrs’ court at its February term to “ascertain and certify to the bear'd of commissioner,®, * * * what amount of money” the county can contribute during the year 1901 avítliout increasing the tax of said county. It does not give any intimation Achy this requirement is made, nor does it suggest that, this is all that the county is ever.to appropriate to the building of the courthouse. The only-restriction is that the amount so appropriated shall not necessitate the raising of the tax rate, Avhich really could not be done during that tax year, as the rate had already been fixed. If the legislature had intended that no more money should be appropriated by the county, it Avould have been very easy, and natural to have simply stated that if the other amounts raised, together with the amount thus appropriated by the county, were not sufficient to pay for the buildings, the act was not to go into effect. It does not do so., but goes on in section 7 to provide that the county shall pay all the expenses, of removal and building, provided, not that the amount so appropriated, with other funds, shall be sufficient, but that the amount necessary “is on hand, or can be .raised by said county without increasing the tax rate.” It is evident that, at the time of building the amount contributed in If 01 would be already “on hand,” so that the reference to what “can be raised by said county” must refer to the future, indicating that the county was to raise other sums in the future; the only limit being that it must not necessitate an increase in the tax rate. Then the tenth section places the entire matter in the hands of the courthouse commissioners, and provides that, with the exception of the preliminary matters committed to them, the act shall not taire effect until it is ascertained'by them that the amount “to be paid” by the county, in addition to the other sums to be used, “will not require an increase on the present tax rate of said county to pay the same.”. This cannot possibly refer to the amount contributed by the county in 1901, for that would be already “.raised” .and paid by the commissioners, and not “to be paid,” and in raising it the county commissioners would have already ascertained that it could be paid without, increasing the tax rate. The duty as to. that amount was placed on the county commissioners, not on the courthouse commissioners. It would be meaningless, then, to require the courthouse commissioners to ascertain whether the payment of that amount by the county would necessitate an increase of the tax rate.

Giving a field of operation to all of the sections of the act, it is evident that the'courthouse commissioners were to ascertain what the buildings would cost, whether they could so arrange the payment's for the same that a portion of the money could be paid in yearly installments, then by conference with the county commissioners what 'amounts they could contribute annually without necessifating an increase of the tax rate, and if by utilizing those payments, with other funds on hand, the building could be erected, they were to proceed with the erection of the same. As said by Justice Tyson in his dissenting opinion (140 Ala. 560, 37 South. 362), “the whole context of the act shows that the legislature did not contemplate that the new courthouse and jail would or could be built with the county contribution limited to what the taxes of 1901 would enable the court of county commissioners to contribute. The single purpose of the legislative restriction was that the object should be accomplished without the necessity of increasing the then tax rate, and the nature of the undertaking and the words of the statute show that the use of taxi's for future years at the same rate was contemplated.” It is shown, from the evidence in the case, that said courthouse commissioners have legally and properly ascertained the facts necessary to make the act effectual, and have properly proceeded iu accordance with the powers conferred upon them to have the buildings referred to in said act erected. The case of Hand et al v. Stapleton, 135 Ala. 161, 33 South. 689, and tlie same case in 140 Ala. 560, 37 South. 362, in so far as they conflict with this opinion are overruled. A decree will be here rendered, reversing tire decree of the chancery court, dissolving the injunction heretofore granted, and dismissing the blil.

Reversed and rendered.

Haralson, Tyson, Dowdell, Anderson, and Denson. JJ., concur.