Board of Revenue of Jefferson Co. v. State ex rel. City of Birmingham

54 So. 757, 172 Ala. 138, 1910 Ala. LEXIS 505

• Court: Supreme Court of Alabama
• Decided: July 6, 1910
• Status: Published

Opinions

McCLELLAN, J.

The following act, omitting its caption, was approved August 26, 1909 (Acts Sp. Sess. 1909, pp. 303, 304) :

“Section 1. That the maintenance of streets of municipalities in the state of Alabama is hereby, for the purpose of this act, declared to be a county matter.

“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 That all laws or parts of laws in conflict with this act, general or special, be and the same are hereby repealed.”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 the necessary public buildings or bridges, or that may hereafter be created for the erection of necessary public buildings, bridges or roads, any county may levy and collect such special taxes, not to exceed one-fourth of one per centum, as may have been or may hereafter be authorized by law, which taxes so levied and collected shall be applied exclusively to the purposes for which the same were so levied and collected.”

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 fraction of the garnered special tax for constructing, ■etc., roads to municipal streets. It cannot he gainsaid that, if the Constitution itself does not intend the embracing of streets in the employed term “roads” a term used in definition of an exception, a proviso, to a major limitation (see Adams v. Southern Railway Co.), the act must be condemned. That many courts have, upon occasion, treated the terms “streets”, “roads” “highways” and related descriptive words, as synonymous, and so in the interpretation of statutes, if not organic laws, may be readily seen by reference to 7 Words and Phrases, pages 6250-6254, 6684, et seq. But, if it be so conceded, such adjudications cannot'avail to influence or control the conclusion in this instance, in light of the section in hand and in the view that has long prevailed in this state as respects the creation, maintenance, and repair of the public necessities commonly called “roads” and “streets” to be read from decision, statute, and Constitution.

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 as a source of the sovereign power of taxation. From the general scheme of county aad municipal subordinate government familiar to all, it appears with certainty that it was never contemplated that the municipality should derive the source of governmental life, viz., funds drawn from taxation, from the exercise of county authority or county taxing power. Each character of government was intended to be, and it is, armed with its own separate taxing power for its own separate sustenance; and while the county can tax the property of the citizen within the municipality within the county, the exercise of that power is none the less a county act, neither infractive of the municipal right nor expansive of the county power. A vital feature of this twin system of minor government is, of course, the taxing power; and the present organic law treats each separately, and sets down in independent sections the respective limitations on the taxing power of each class of subordinate governments. So, to conclude on this idea, if there be in the whole range of municipal and county authority and law points whereat these, in a sense, twin governments become blended in authority and purpose, the taxing power (and necessarily the benefit thereof must coincide with and conform to that power and its exercise) is not one of the means inviting that result. It hence necessarily follows that the exercise of each authority of its taxing power must redound to its benefit, to its warrantable purpose, alone.

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 manifestation of constitutional intent to that end must appear. While great deference is always here paid legislative expression as spoken by its enactments, yet the question in hand cannot be resolved without a negative response to the inquiry: Is the Constitution violated by the course commanded by the act quoted before? All doubts must be resolved in favor of validity; but the doubts so to be resolved must, of course, find inspiration in the organic law as applied to the enactment, and the enactment, however emphatic its declaration, cannot alone cást the conclusion.

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 would, be held inapplicable to streets in municipalities.

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 public road- for the purposes of maintenance, could not bring the way, still a street, within the benefit of the power -intended by section 215 to be given county authorities. Constitutional mandates and restrictions cannot be altered, contracted, or expanded, by that means.

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 collectecl. Unquestionably no right rests with the Legislature to impair, much less defeat, the exercise of the power which the Constitution contemplates. -Indeed, to go further, the Legislature cannot fix such conditions to the exercise of the power and the ultimate application of the fruits of its exercise as to qualify the power and to restrict the legitimate benefit thereof to its objective. If the Legislature may direct, as in the act in hand, that a percentage of the fund raised by the special tax paid on property within a municipality shall be paid over to the municipal authorities, it would, of course, be permissible to direct that all of the special tax paid on property within municipalities shall be paid to those authorities, to be applied to the improvement of thoroughfares within them only. The immediate result of such legislative direction is to divest the governing bodies of counties of any discretion in respect to the application of a. part thereof (that paid on property in municipalities) to designated highways in municipalities. In other words, that process of legislative control (if sustained) would toll the sum available to the application of the county governing bodies to the purpose contemplated in the Constitution (section 215) to the extent that property in municipalities contributed to the special fund. The Constitution’s warrant, finder the pertinent proviso, is to the county, and the Legislature cannot qualify or impair it. To illustrate with Jefferson county: If the county authorities should validly levy and collect the special tax to construct a road, as in their discretion may be done, from the confines of corporate Bessemer to the confines of corporate Birmingham, the sum available therefor would not be the amount of the special tax drawn generally and uniformly from the entire county of Jefferson, but would be, if the quoted act were valid, the whole special fund .so collected, less 50 per cent, of the amount received from the special tax on property within Bessemer and Birmingham, together with that proportion of the tax paid by property in spch other municipalities in the county as came under the act in question; and the •subtrahend wTould give the wiiole amount subject to the ■control of the county governing body for application beyond, the confines of municipalities in the county. So that, if the county of Jefferson should incur a debt or liability in the construction. of a roadwuy between the points before indicated, the entire proceeds of the special road tax could not, if this act be valid,' be applied to the discharge of that debt or liability, but only such part of it as passed through the sieve of the act in hand could be so applied; and, if the sum of the collected special tax, less the deductions the act requires, wras insufficient to pay the debt or liability so warrantably incurred, the plain result wrould be that the county might levy and collect the special tax in order to discharge the •county liability, as the Constitution clearly intends, and yet a part of the gross special tax sum would, by legislative action, be forbidden application to that constitutionally commanded purpose.

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 Constitution clearly intends, in this instance, to alone and without qualification subserve. The authorities cited in brief for appellee have been carefully considered. In none of them were the courts delivering the opinions dealing with constitutional terms and purposes similar even, to those with which this appeal is affected.

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.

■ Anderson, Mayfield, and Evans, JJ., concur. Dow-dell, C. J., and Sayre, J., dissent.