35 So. 114 (Ala. 1903), Sisk v. Cargile

Citation:35 So. 114, 138 Ala. 164
Opinion Judge:HARALSON, J.
Attorney:W. H. Norwood, for appellant. Virgil Bouldin, for appellees.
Case Date:June 30, 1903
Court:Supreme Court of Alabama

Page 114

35 So. 114 (Ala. 1903)

138 Ala. 164




Supreme Court of Alabama

June 30, 1903

Appeal from Chancery Court, Jackson County; W. H. Simpson, Chancellor.

Bill by W. D. Sisk against C. L. Cargile and others, constituting the court of county commissioners of Jackson county. From a decree dismissing the bill for want of equity, complainant appeals. Affirmed.

The following facts are averred in the bill: "By virtue of an act to authorize Jackson county to build macadamized roads and bridges, and to issue bonds of the county to aid in the construction thereof," approved December 7, 1898, and acts amendatory thereto, Jackson county has issued from time to time prior to November 1, 1902, bonds of the county, aggregating the sum of $187,500. The total bonds authorized to be issued by said act was $250,000. The bonds so issued are outstanding, the proceeds having been expended in the construction of macadamized roads and bridges, pursuant to said act. The system of roads set out and described to be constructed under said act have not been completed, and cannot be completed without a sale and use of the proceeds of the remaining $62,500 of bonds, authorized by said act. At the November term, 1892, the board of county commissioners of Jackson county made an order, authorizing the issuance of said remaining bonds. To facilitate a sale of said bonds, and to provide means for the payment of principal and interest thereon, there was passed by the Legislature of Alabama, and approved by the Governor on February 28, 1903, an act to provide for the payment of the principal and interest of certain bonds to be issued under "An act to authorize Jackson county to build macadamized roads and bridges, and to issue bonds of the county to aid in the construction and building thereof," approved December 7, 1898, and acts amendatory thereto. Under the authority of the last-named act, the court of county commissioners are proceeding to issue $62,500 of bonds for the county of Jackson and are proceeding to make a levy of a special tax, under said act of 1 1/4 mills on all of the taxable property of said county and, unless enjoined will levy said tax and enforce the collection thereof against the property of complainant, and other taxpayers of said county. The levy of 1 1/4 mills, as an additional tax, sought to be levied, solely by authority of the act approved February 28, 1903. It was then averred in the bill that said act was unconstitutional and void; the averments of said bill as to its unconstitutionality and validity being in words and figures as follows:

"The proposed levy of such special tax is illegal and void for the reason that the act of the Legislature of Alabama, under which it is made, is violative of various provisions of the Constitution of Alabama, 1901, as follows: It is violative of section 45, in that the act is amendatory in character and seeks to revive, amend, extend or confer the provisions of a former act by reference to its title merely, without re-enacting and publishing at length the provisions so revived, amended, extended or conferred.

"It is violative of subdivision 15, § 104, in that it is a local law, regulating the assessment or collection of taxes not in connection with existing municipal indebtedness created prior to 1875.

"It is violative of subdivision 17 of section 104, in that it is a local law authorizing the county to issue bonds, whereas, the issuance of said bonds has not been authorized before the enactment of such law, by a vote of the duly qualified electors of said county, at an election held for that purpose.

"It is violative of section 105, in that it is a local law enacted in a case provided for by general law, or in which the relief sought can be given by the courts of the state.

"It is violative of section 106, in that it is a local law, and notice of the intention to apply therefor was not published and proof of such notice made as required by section, and complainant hereto attaches certified copies of the journals of the two houses marked 'Exhibit B' and 'Exhibit C' as a part of this bill, from which complainant avers it is not shown that said bill was duly and legally passed.

"It is violative of section 107, in that, it is a local law modifying an existing local law without notice and proof as required by said section, for proof of which reference is made to copies of the journals aforesaid.

"It is violative of section 215, in that it seeks to levy a greater rate...

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