Houston County v. Henry County

47 So. 710 | Ala. | 1908

ANDEBSON, J.

— The general rule, Avit-h reference to the liability of a county to which territory is attached for debts of the county from Avhich it Avas detached, as well as to any claims to property owned by the old county before the formation of the new one, is well stated in 11 Cyc. p. 357, and is as follows: “In the absence of express provision to the contrary, transferred territory loses all claim to share in the property belonging to the county from which it is taken, and is relieved of the indebtedness resting upon the latter, except in the case of debts contracted before the separation and which are a lien upon the detached teritory; but it incurs the liabilities and shares in the property of the county to which it is attached, and is equally subject to assessment and taxation for that purpose. Where a portion of the territory of one county is annexed to another, the county gaining territory neither acquires any rights nor comes under any obligations to the county losing it, unless the legislative act so provides.” Section 124 of the Code of 1907, which is in the same language as section 1398 of the Code of 1896, provides that, in case of the formation of a new county, the inhabitants cut off from any county are liable in law or equity for the payment of the pro rata amount of the existing debt of the counties from which they have been severed. Section 1399 of the Code of 1896 makes provision for the ascertainment and collection of said indebtedness, and, construed in the case of Chambers Co. v. Lee Co., 55 Ala. 534, renders the new county liable for said indebtedness and subject to a suit for same, upon a failure to comply with said statute. It is true that section 1399 of the Code of 1896 has undergone a change as section 125 of the Code of 1907; but as Houston county was formed before the adoption of the last Code, and as this bill was also filed prior to said adoption, we must deal with the question under the statute as it existed before the change in the Code of 1907.

We think “existing debts,” as referred to in the statute, meant anything then owning by the old county, regardless of its assets or ability to pay same, and that, in the absence of a statutory provision, the new county was not entitled to participate in the general fund of the old county, in the absence of an averment that it or a part thereof had been specifically collected for the payment of the bonds or had been applied to a sinking fund for that purpose. The bill does not set out any facts that would authorize a deduction from the complainant’s indebtedness to Henry county. Acts 1888-89, p. 136, did not require a sinking fund, but merely provided for it, in the discretion of the commissioners’ court, and there is no averment that said court levied a sinking fund tax for the purpose of paying said bonds. The Supreme Court of North Carolina, in passing on this question in the case of Dare Co. v. Currituck Co., 95 N. C. 187, held that “where a statute creating a new county provided that such new county should pay its pro rata of the debt of the county to which its territory formerly belonged, but the statute contained no provision giving it any interest in the property of the old county, the new county was not entitled to its pro rata of the proceeds of the sale of certain stock owned by the old county, although the debt of the old county was in fact to pay for the stock. We think that our own statute fixes a liability upon the new county for its pro rata of the debt of the old county existing at the time of" the formation of said new county, but fails to authorize it to share in the funds of the old county. It may be inequitable to require the new county to bear its share of the burdens and not allow it to share in a surplus on hand; but this was a question for legislative consideration, and we must construe the statute as it is, and not as we think it should be. Whether the Legislature had a good reason for failing to allow a deduction of funds on hand from the indebtedness of the old county, and the omission was intentional, or the failure was due to inadvertence, we do not know. The relief, however, if any there be, must be sought through the legislative, rather than the judicial, department.

As to whether or not the new county shall, under section 124, look only to the inhabitants cut off of Henry county, or all of its inhabitants, for indemnity, we need not decide, as this question is not involved. Nor does the bill, as amended, present the apportionment of taxes accruing during the year of the formation of the new county, as provided by section 127 of the Code of 1907, as the assignment of error relates to the decree upon the demurrers to the amended bill, and not the original bill.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, J.J., concur.