Adams v. Southern Ry. Co.

• Decision Date: 21 April 1910
• Citation: 167 Ala. 383,52 So. 439
• Parties: ADAMS, TAX COLLECTOR, v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

52 So. 439

167 Ala. 383

ADAMS, TAX COLLECTOR, v. SOUTHERN RY. CO.

Supreme Court of Alabama

April 21, 1910

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Action by the Southern Railway Company against Q. S. Adams, as Tax Collector, to recover money paid to Marengo County under protest, as a special road tax for a road district in that county, established under Act October 10, 1903, as amended by Act August 13, 1907. Judgment for plaintiff, and defendant appeals. Affirmed.

William Cuninghame, for appellant.

L. E Jeffries, E. W. Pettus, Henry McDaniel, and Abrahams &amp Taylor, for appellee.

McCLELLAN J.

But one of the several questions presented on this appeal is necessary to be considered, viz.: Does section 8 (Acts 1903 p. 414), in the particular that it assumed to authorize "road districts," less in area than a county, to impose, consonant with the popular will therein taken, a tax on property in that district, of "not more than one-fourth of one per centum," "for the purpose of constructing, improving and maintaining the public roads and bridges in such district or districts," offend section 215 of the Constitution of 1901, reading: "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-three, 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, (a) 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."

Section 8, as presently pertinent, is as follows: "That courts of county commissioners and boards of revenue may, if they deem it expedient or proper, divide their respective counties into 'road districts,' and when such districts are created the said courts of county commissioners or boards of revenue may order elections in such districts or any of them, for the purpose of ascertaining whether it is the will of the people of such district or districts that a tax of not more than one-fourth of one per centum on the taxable property in such district or districts shall be levied and assessed for the purpose of constructing, improving and maintaining the public roads and bridges in such district or districts. That such election shall be held in such manner as the courts of county commissioners or boards of revenue shall provide and only the qualified electors of such district or districts shall vote at such election. If a majority of the voters at such election shall vote for such tax the same shall be levied, assessed and collected as other taxes for county purposes. All taxes which may be levied and assessed under the provisions of this act shall constitute a lien on the property of the person against whom they are assessed superior to all other liens, except the state's lien for taxes. * * *" Acts 1903, pp. 414, 415.

The question indicated has not been considered in this court. The recent adjudication in Southern Railway Company v. Cherokee County, 144 Ala. 579, 42 So. 66, treated and decided only that section 215 of the Constitution, by the use of the phrase, "or that may hereafter be created," had reference to debts contemplated by the governing bodies of the several counties, and did not condition the power to impose the special tax upon a debt existing at the time of the imposition of the tax. In short, that the power can be exercised in anticipation of payment for contemplated improvements within the provision of the section.

Section 215, in respect of its broad purpose, is a reiteration of the, generally, similar provision in the Constitution of 1875, whereby, for the first time, and as suggested by motives of the wisest prudence, a limitation was put upon the taxing power to be exercised by the Legislature. Many decisions delivered here rehearse the lamentable conditions immediately resulting from an unrestrained power to tax, out of which grew the limitation fixed in section 215. Keene v. Jefferson County, 135 Ala. 465, 33 So. 435.

While the wisdom of the limitation was not to be doubted, nor its broad efficacy impaired, it was considered proper and of equal necessity that for the purposes (among others not necessary to be restated) of erecting, constructing, or maintaining certain public agencies, public roads and bridges being among them, the general limitation of the taxing power expressed in the section (215) should yield to exception. The proviso with which we are now concerned raised the limitation with respect to the construction or maintenance of public roads and bridges so that "any county" may impose for that purpose a tax not exceeding one-fourth of 1 per centum.

The power to impose the special tax mentioned being created by proviso, an exception to a general limitation, the proviso must be so strictly construed as to confine its effect in lifting the major limitation to a status falling fairly within its terms. United States v. Dickson, 15 Pet. 141, 10 L.Ed. 689; Bragg v. Clark, 50 Ala. 363; Ex parte Lusk, 82 Ala. 519, 2 So. 140; 2 Lewis' Suth. St. Const. § 352; Endlich Int. Stat. §§ 186, 526.

This rule of construction must have application in this instance.

Under our Constitution counties are considered and expressly treated as entirely distinctive from precincts, wards, and districts. In the suffrage department of the Constitution dealing with registration as a prerequisite to the right to exercise the franchise, precincts and wards are recognized as being territorial areas less than a county and different, in...