County Commissioners v. City of Jacksonville

36 Fla. 196

• Court: Supreme Court of Florida
• Decided: June 15, 1895
• Status: Published

Opinion

Mabry, C. J.:

It is contended for plaintiffs in error that the proviso of section 17 of the act of 1891, Chapter 4014, the-basis for this suit, is in conflict with the Constitution in two particulars. The first one is, that the subject-matter of the proviso is not expressed in the title of' the act, as required by section 16 of Article III of the-Constitution; and the second is, that it is an attempt to divert money raised by taxation for county purposes to other and unauthorized uses, in violation of. section 5 of Article IX of the Constitution. The title-of the act in question is: “An act to provide for establishing, working, repairing and maintaining the-public roads-and bridges of the several counties of this-State, and to provide penalties for failure thereof.” Provision is made in the act for working, repairing and maintaining the public roads of the counties of the State by means of manual labor by the residents of the several counties subject to road duty, aided for-building and repairing bridges by a one mill tax on the dollar, in case such roads and bridges are not-worked, repaired and maintained by a special tax as provided in the seventeenth section of the act. After-defining the powers and duties of the County Commissioners of the county over and in reference to the-public roads and bridges, directing the division of the-counties into road districts and providing the manner-of compelling those subject to road duty to work the-roads, it is provided in the sixteenth section that ‘ ‘no person residing in and paying municipal taxes to any incorporated town or city shall be required to work on the public roads under this law.” The seventeenth section authorizes the County Commissioners of any county whenever deemed advisable and for the public good, to levy a special tax for public roads and bridges, not to exceed three mills on the dollar, on all the real and personal property in the county subject to taxation, which tax shall be assessed and collected as other taxes of the county, and the money arising therefrom to be paid into the county treasury as a special fund to be expended under the direction of the County Commissioners solely for the purpose of maintaining, working and keeping in good condition the public roads and bridges of the county and in purchasing tools and materials for that purpose. The proviso to this section reads: “provided, however, that one-half of the amount realized from said special tax on property in incorporated cities or towns shall be turned over to the municipal authorities of said cities or towns, to be used in the repairing working and improving and laying out the streets thereof, as may be prescribed by the ordinances of said cities or towns.” When the special tax for working and maintaining the public roads and bridges is levied, no person residin the county shall be required to work on the public roads of the county.

We will first consider the contention that the provision for turning over one-half of the money raised for the public roads and bridges of the county to the municipal authorities to be used by them in laying out and maintaining the streets thereof is a devotion of it to other than county purposes. It is beyond question that, under section 5 of Article IX of the Constitution, the Legislature can not authorize counties to levy taxes for any other than county purposes, nor can counties be authorized to devote money so raised to any other than such purposes. Skinner vs. Henderson, 26 Fla. 121, 7 South. Rep. 464; Stockton vs. Powell, 29 Fla. 1, 10 South. Rep. 688; Mayor, etc., of Nashville, vs. Towns. 5 Sneed, 186. In the case of State ex rel. vs. Commissioners of Putnam County, 25 Fla. 632, 3 South. Rep. 164, the question presented was whether the County Commissioners had been deprived of jurisdiction over that part of a public road, of the county included within the corporate limits of a town subsequently incorporated under the general law for the incorporation of cities and towns. The court said, in effect, that whether the County Commissioners had been deprived of a jurisdiction of such road within the new town organization depended upon the legislation on the subject of public roads and of municipal corporations, and that the intent of the Legislature, as manifested by the statutes, would control. The conclusion was that the County Commissioners had not been so deprived of jurisdiction over the road. As shown in the case of Skinner vs. Henderson, supra, the city of Tampa has entered into a contract for the construction of a bridge over a river within the corporate limits of the city, and the County Commissioners, on petition for that purpose, ordered that a portion of the cost of the bridge be paid by the county. The payment of the money by the county was enjoined and the bill filed for this pui-pose, among other things, alleged that the bridge was wholly within the corporate limits, entirely a municipal improvement, and not a county purpose within the meaning of the Constitution. Such allegation being admitted to be true on demurrer, it was held that the County Commissioners had no authority to appropriate .the money. Anticipating the questions that might arise in the case, the court further said that the statute authorizing the city to build bridges within its limits did not necessarily revoke the authority given to the county by general statute without restriction as to locality, to build a bridge within the city limits. As there may be bridges serving only a city purpose, so there may be others demanded in the same territory for county purposes, and where the circumstances create this demand, and the bridge is for the use and benefit of the people of the county at large, or of some considerable portion of them, and intended and needed as well for those outside as for those inside the city, the authority of the county to build it is not annulled by the local city statute, some courts hold that statutes conferring, in general terms, authority upon counties to establish and maintain public roads and bridges in.the counties without restriction as to locality will not be construed so as to authorize its exercise within the teritorial limits of incorporated towns or cities situated therein, when legislative authority has been given such towns and cities to establish and maintain municipal streets and highways. We need not go into a discussion of such decisions, as this court has admitted their existence and refused to follow them.

In State ex rel. vs. Commissioners of Putnam County, supra, it is said: “Though all public roads and all streets are public highways, yet neither all public highways nor all public roads are streets, or city or town highways. * * Public roads are established by the county authorities with reference to the convenience of the people of the county of neighborhoods therein; streets and other municipal highways are located in obedience to the dictation of the welfare and convenience of the town or city. The road may be so located in the town that no interest of the municipality would dictate its maintenance at municipal expense; it may touch no municipal highway of any kind.” The case of Skinner vs. Henderson clearly recognizes a distinctly municipal or county purpose in respect to a bridge within the corporate limits, and also a mixed or double municipal and county purpose in respect to the same bridge, dependent upon the circumstances of each particular case. In both of the decisions just referred to the legislative intent, as manifested by the legislation on the subject of public roads and bridges, and in reference to the municipalities in question, was recognized as controlling. The question we are to deal with is not so much one of legislative intent as one of legislative power. The seventeenth section of the act before us expressly authorizes the County Commissioners of any county in the State, when deemed advisable and for the public good, to levy a special tax not exceeding three mills for working and maintaining the public roads of the county, and directs that one-half of the amount realized from said tax on property in incorporated cities and towns shall be turned over to the municipal authorities thereof to be used in repairing, working and improving and laying out the streets thereof as may be prescribed by ordinances. There is no doubt about the legislative intent here, and if there is no constitutional inhibition against carrying it out, it is the duty of the court to inforce it. The act must be clearly unconstitutional before we are authorized to set it aside on such grounds. If we entertain any well-founded or reasonable doubt about the constitutionality of the act, we must, in deference to the legislative department, uphold it. This rule of constitutional construction is well-settled. State ex rel. vs. Hooker, 36 Fla. —-, 18 South. Rep. —. If the establishment and maintenance of streets in incorporated towns and cities can not be declared by the Legislature, or regarded to any extent, a county purpose within the meaning of the< provision of the Constitution on the subject, then the proviso to the act in •question directing that a portion of the money' raised by taxation for the public roads and bridges of the ■county be turned over to the municipal authorities for the purpose mentioned, is unauthorized and void. That locality alone within the corporate limits can not determine the character of the purpose, is clearly pointed out by the decisions in this court already referred to, and even]under statutes giving general authority over public roads and bridges to County Commissioners, taken in connection with statutory authority in municipal bodies over streets, lanes and allies within their limits, it may be that a street will subserve both a county and municipal purpose. If such should be the case there would be no difficulty, according to the reasoning in the decision in Skinner vs. Henderson, in appropriating road money raised by county taxation to all such streets that exist in incorporated towns and cities. So long as the money is devoted to such streets, even though expended under the agency of the municipal corporation, it would not be a diversion of it under such statutes from strictly county purposes. We have no information in the record as to the character of the streets in the city of Jacksonville for the establishment and maintenance of which the funds in question are demanded, and even under statutes similar to those existing when the decisions to which we have referred were made, it would be difficult to affirm that the devotion of part of the money raised by taxation on the property in the town or city to maintaining the streets therein would be a diversion of it from county purposes. Halsey vs. People ex rel., 84 Ill. 89. But, as before stated, there is a specific statutory direction that one-half of the road money raised by county taxation from the taxable property in incorporated towns and cities shall be turned over to their municipal authorities for the specific purpose of laying out and maintaining the streets therein, and, conceding this to be a direction to turn the money over to the municipal authorities to be applied ‘by them on any or all of the streets of the municipality, without distinction, the question is, is such an object so far foreign to a county organization, or a county purpose as to be forbidden by the Constitution under county taxation for public roads or highways. The authorities have formulated no generally accepted definition of county purposes, but leave each case involving the question to be decided as it may arise. Cotton vs. County Commissioners of Leon Co., 6 Fla. 610; Stockton vs. Powell, supra. In the first mentioned case it. is said: “The Constitution does not attempt to give a definition of county purpose, and to obtain a correct interpretation of that phrase we must look to the contemporaneous legislation upon that subject and the ■ uniform action of the county courts under the territorial government. By this reference it will be abundantly demonstrated that at that day county purposes were taken to embrace principally the erection and repair of court houses and jails, the opening and maintaining public thoroughfares within the limits of their respective counties, by opening roads, building bridges and causeways and keeping the same in repair, licensing and regulating ferries and toll-bridges, etc. It is thus seen that the entire subject of highways was at the time of the Constitution, an object peculiarly within the jurisdiction of the county authorities, and we are hence warranted in the assumption that it was so understood by the convention when they used the phrase ‘county purposes’.”

In Commissioners of Hamilton County vs. Mighels, 7 Ohio St. 109, the court say: “A county organization is created almost exclusively with a view to the policy of the State at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are in fact, but a branch of the general administration'of that policy.” The Legislature has always under our system of government had plenary control of all public highways whether they be public county roads or streets in cities and towns. State ex rel. vs. Jacksonville Street Ry. Co., 29 Fla. 590, 10 South. Rep. 590. Cooley on Taxation, page 130, says: “One of the most important functions of government is the makr ing provision for public roads for the use of the people. The variety of these is great, and the modes of construction and operation are different. Ho question is made of the competency of the Legislature to levy taxes for the common highway, the improved turnpike and macademized road, the planked or paved street, the canal, the tramway or the railway. Any or all of them may be constructed by the State, or under State authority, by the municipal subdivisions of the State within whose limits they may be needed.” The decision in the case of Supervisors of Will County vs. People ex rel., 110 Ill. 511, makes a distinction between raising money by taxation for she purpose of building bridges and maintaining public highways, and for the purpose of carrying on other more private concerns of a municipality. It was there held that the raising of money by taxation in towns or counties in pursuance of a general law of the State, for the purpose of building bridges, maintaining public highways, and for other objécts of a similar character, in which the people of the State at large are directly interested, is not the levying of a tax for a strictly local corporate purpose ’Within the meaning of the Illinois constitution. In that case a mandamus was sustained against the Board of County Commissioners of $he county to compel the levy and collection of a tax upon the property of a county to aid the commissioners of highways of the town of Wilmington to build a- bridge across a river within the limits of said town. It is true that there may be a distinctively municipal purpose, as distinguished from county purpose, and, in our judgment, the Constitution of the State recognizes such distinction, but in reference to the laying out and maintenance of public streets, or municipal highways, over which not only the people of the municipality, but of the entire county, can travel, it can not be said, we think, that they are so distinctively and exclusively a municipal purpose as to render it impossible for the Legislature to authorize the counties to devote revenue raised by county taxation for public roads on the property situated within the municipalities to the maintenance of the public streets therein. The result of this conclusion is, that the proviso in question is not in conflict with section 5 of Article IX of the Constitution.

The objection that the subject-matter of the proviso to section 17 is not expressed in the title of the act can not. in our judgment, be sustained. It is not questioned that it was not competent for the Legislature under the title of the act to authorize the County Commissioners, when deemed advisable and for the public good, to levy a special tax not exceeding three mills on the dollar on the entire taxable property of the county for the purpose of maintaining, working and repairing the public roads therein. What matter is-properly connected with the expenditure of the money raised by such a levy ? It was held in' State ex rel. vs. Board of Commissioners of Montgomery Co., 26 Ind. 522, that “when a matter is so closely connected with the subject of the act as to create a doubt whether it is not included within it, the court will not consider-the question whether the legislative action upon it violates the constitutional prohibition relating to the title of laws.” “A street is a public road or way in the city, town- or village. All streets are highways, but all highways are not necessarily streets.” 24 Am. & Eng. Ency. of Law, page 2. All highways, whether public roads or streets, are subject to the control of the Legislature. Our constitutional requirement in reference to the subject-matter and titles of laws is, that each law shall embrace but one subject and matter properly connected therewith, and that the subject shall be briefly expressed in the title. It is not essential that the title should give a synopsis of all the-means by which the object of the law is to be .accomplished by the provisions in its body. State ex rel. vs. L. Hilton Green, 36 Fla. 154, 18 South. Rep. —. The title of an act may be general, and so long as the generality of the subject therein expressed is not employed as a guise to conceal the real object of the law, or some provision therein, it will not be objectionable. It is also true that the title to an act may be so restrictive in reference to a subject expressed therein as-to confine the body of the act to such phase of the*, subject as is indicated by the title. State ex rel. Gonzales vs. Palmes, 23 Fla. 620, 3 South. Rep. 171; Cooley's Const. Lim. (6th ed.), page 172. The general subject of the title of the act we are considering is the laying out and maintaining the public roads of' the counties, and streets are public roads or highways within the limited space of the municipalities within, the counties. We deem the provision as to applying a part of the road tax to the streets in incorporated cities and towns in a county as matter properly connected with the maintenance of public roads in the-county; at least it is so closely connected therewith as. to create a doubt whether it is not included in the general subject of the roads of the county.

In the case of Mayor, etc., of Knoxville, vs. Lewis, 12 Lea, 180, cited by counsel for plaintiffs in error, the title of the act considered was to provide more just and equitable laws for the assessment and collection of revenue for State and county purposes, and to repeal all laws then in force whereby revenue was collected for the assessment of real estate, personal property, privileges and polls. The act contained many sections,, and after making provisions on the subject of assessing and collecting State and county revenue, it enacted,, in the fiftieth section, that the county clerk should collect the municipal revenues. Under the law previously existing the municipal recorder collected the-town taxes. Under a constitution similar to ours as. to the subject-matter and title of an act it was held, that the fiftieth section introduced a new subject not. expressed in the title, and the entire act was void. Inf reaching this conclusion the court said there was a. distinction between State and county revenue,, and municipal revenue, recognized by the Constitution itself, and as a result the Legislature had undertaken to introduce into the act on the subject of State and county revenue provisions in reference to a different subject not expressed in the title. Our Constitution recognizes a difference between taxation for distinctively county or municipal purposes, but in reference to public highways, whether public roads or urban highways, in the county, it is competent for the Legislature to authorize' the counties to raise money by taxation for their maintenance.

The turning over of one-half of the money raised from the property in the towns and cities does not destroy the equality and uniformity of the tax itself. The levy is made upon all the taxable property of the county justas any other lax is assessed and levied, and all property in the county bears an equal portion of the burden of such tax in proportion to its value. Sangamon Co. vs. City of Springfield, 63 Ill. 66.

It is further objected that the statute does not require the County Commissioners to turn over the money to the municipal authorities, or that it is left in doubt as to whose duty it was to turn over the money, and that the relief by mandamus will be refused when the right is doubtful. It will be seen that the seventeenth section directs the money when collected to be paid into the county treasury as a special fund to be expended under the direction of the County Commissioners solely for the purpose of maintaining, working, repairing and keeping in good condition the public roads and bridges of the county, and for purchasing suitable tools, implements and material for that purpose, “provided, however, that one-half of the amount realized from said special tax on property in incorporated cities or towns shall be turned over to the municipal authorities of said cities or towns to be used in the repairing, working and improving and laying out the streets thereof as may be prescribed by the ordinances of said cities or towns.” No money can be drawn from the county treasury except upon warrant drawn by the order of the County Commissioners, and the warrant shall specify the particular fund upon which it is drawn (secs. 584, 585 Rev. Stat.) The county treasurer is required to keep the various county funds separate (sec. 586), and he is forbidden to pay out any money in his hands as county treasurer except upon warrant drawn as provided under an order of the County Commissioners. If the municipal authorities are entitled to any portion of the special fune raised for the maintenance of the public roads of the county and required to be paid into the county treasury, it is evident that it is the clear duty of the County Commissioners under the statutes mentioned to draw the warrant for the money. The municipal authorities are compelled to obtain such warrant be ■ fore they can call upon the county treasurer for the money, and the plain duty in such a case rests u pon the County Commissioners to issue the warrant.

The only other contention demanding any discussion is, that the peremptory writ commands the County Commissioners to forthwith turn over to the municipal authorities of Jacksonville §5,746.74, when, as shown by the return, only $758.91 remained in the treasury to the credit of the public road fund. The case was disposed of on the alternative writ and return thereto, and as shown by the return one-half of the amount collected and paid into the county treasury on property in the city of Jacksonville as a road fund for the years 1891, 1892 and 1898 was §8,455.79. The sum of §2,709.05, it is conceded, had been paid, and the balanee amounted to $5,746.74. This last sum is the? amount ordered by the court in the peremptory writ to be immediately turned over to the city authorities. The return distinctly alleges that the whole amount had been required and used for the purpose of keeping-the county roads and bridges in good repair, except the sum of $758.91, the balance remaining in the hands of the county treasurer. According to the return of the County Commissioners,' it is clearly shown that the-county had expended all the road and bridge fund except the amount stated, and that the only sum received by the city authorities was $2,746.05. The county had expended largely the city’s part of the road money, but the money, as is clearly shown, is not in the-county treasury to be turned over, and the question arises, to what extent will the remedy of mandamus apply ? The writ of mandamus is a discretionary remedy, and while the courts will apply in proper cases, they often refuse it when it would be attended by no beneficial results. State ex rel. vs. Commissioners of Marion Co., 27 Fla. 438, 8 South. Rep. 749. A peremptory writ of mandamus will not usually issue commanding an officer to do what is not within his power to do, and though by putting it out of his power to perform a duty he may become liable in damages, still where he can not perform the act, and this is clear to the court, mandamus will not be issued against him. This rule has been applied to public officers who have improperly diverted funds in their hands or under their control so that they are unable to comply with some duty in reference to their disposal. Rice vs. Walker, 44 Iowa, 458; Bates vs. Porter, 74 Cal. 224; Universal Church vs. Trustees of Columbia Township, 6 Ohio, 446, S. C. 27 Am. Dec. 267; State ex rel. Board of Freeholders vs. Township of Lacey, 42 N. J. L. 536; People ex rel. vs. Tremain, 29 Barb. 96; State ex rel. vs. City of New Orleans, 34 La. Ann. 469; Township Board of Education vs. Boyd, 58 Mo. 276. Under the showing made, we think the court should not have undertaken to compel the County Commissioners to turn over money that was not under their •control, and which it was not in their power to do as officials of the county. The judgment should have commanded the County Commissioners to turn over the road funds in the county treasury by issuing a warrant on the treasurer for that purpose. To this extent only should the remedy by mandamus be applied in this case.

The judgment is reversed with directions that- the Circuit Court enter judgment in accordance with this •opinion.