Board of Revenue of Jefferson County v. Hewitt

• Decision Date: 30 June 1921
• Docket Number: 6 Div. 233.
• Parties: BOARD OF REVENUE OF JEFFERSON COUNTY et al. v. HEWITT.
• Court: Alabama Supreme Court

90 So. 781

206 Ala. 405

BOARD OF REVENUE OF JEFFERSON COUNTY et al. v. HEWITT.

6 Div. 233.

Supreme Court of Alabama

June 30, 1921

Rehearing Denied Oct. 6, 1921.

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by R.G. Hewitt, a citizen and taxpayer, against the individuals composing the Board of Revenue of Jefferson County, to enjoin the issuance by them of a warrant for $50,000 under the pretense that the same was issued to brokers in payment of brokerage for the sale of certain bonds, when in fact it was the repayment of the discount for which the bonds were sold. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellants.

London Yancey & Brower, of Birmingham, for appellee.

THOMAS J.

The bill was filed against the members of the board of revenue of Jefferson county, Ala., to enjoin the issuance of county warrants. Demurrer thereto and motion to dissolve were overruled.

The practical phase of the case for the county is well stated by its counsel:

"The county of Jefferson, at the time of the sale of the bonds was in this predicament: The law at that time forbade the sale of the bonds at less than par. The rate of interest authorized by law was such that no purchaser for the bonds could be found who was willing to take them at par. A grave emergency presented itself in that the county authorities, in the confident expectation that the bonds could be sold, had entered into many contracts for the building of public roads involving large amounts of money. Without the sale of the bonds the work could not go on, and, in that event, the county would be confronted not only with suits for breach of contract, but the work already done on the roads, being in an incomplete state, was subject to deterioration and waste, which would probably have entailed an enormous loss upon the county. Accordingly these contractors advanced to the county the sum of $50,000 so that it might have in the treasury the full amount of $500,000 or the face value of the bonds to be sold. They made the advance in the expectation that the county would keep faith with them and not allow them to suffer loss. The Legislature has recognized this obligation resting upon the county and has authorized the board of revenue to repay to these contractors the amount which they advanced for the county's benefit."

In Wallace v. Ball, 88 So. 442, this court said:

"The act of October 8, 1920, was passed and approved two days after the act of October 6, 1920. Both being on the same subject, the last one repeals the first one."

We must look to the legislative intent to ascertain whether repeal by implication was intended. Board of Revenue v. Johnson, 200 Ala. 533, 76 So. 859. If two acts are of the same nature and upon the same subject, the latter repeals the former by implication, if there is no different field of operation; that is, if it is obvious from the legislative proceedings and purport of the two acts that neither branch of the Legislature conceived a conflict, or "entertained any purpose other than their harmonious co-operation within their respective fields." Board of Revenue v. Johnson, 200 Ala. at page 535, 76 So. at page 861; Wallace v. Ball, supra. These two acts are to be found in Acts 1920, pp. 116, 166.

Such conflict, not being shown by the legislative history of the two acts, is as follows: (1) Senate Bill No. 21, by Mr. Acker, of Calhoun county, was introduced in and passed the Senate on September 15, 1920; was sent to the House on the 17th; received in the House on the 21st; passed on October 1st; signed by the presiding officer of the Senate and House on that date; was received in the office of the Governor at 5:50 p.m. the same day; and approved by him on the 8th. (2) Senate Bill No. 126, by Mr. West, of Jefferson county, was introduced in the Senate on September 23, 1920; passed on the 27th; sent to the House on the same day; passed October 1st, and signed by the presiding officer of the Senate and House; was transmitted to the Governor on October 2d at 7:05 p.m., and approved on October 6th. The mere act of the Governor in giving his assent and approval to such expression of the legislative intent and will, by affixing his official signature thereto on different days in no wise changed the legislative intent.

The purpose and field of operation of said acts are different. That approved October 6th, the West Act, relates to the manner of sale and disposition of bonds in counties having, according to the census specified, 150,000 inhabitants or more (Jefferson county being of that class), said sale in no case to be "below ninety-five (95%) per cent. of the par value," etc. That approved October 8th (by Mr. Acker) prescribes the rate of interest to be paid on the bonds of counties, cities, and towns of the classes indicated, and requires the bonds to be sold for not "less than par, with accrued interest to date of delivery," when the discount is considered as a part of the interest. The act of October 6th, as we have indicated, provides not only that bonds of counties or municipalities of the class indicated shall be sold at the best price obtainable, not to be below 95 per cent. of the par value, but that courts of county commissioners or boards of revenue may reimburse out of the proceeds of such sales "contractors who, within nine months prior to the approval of the act," have paid into its treasury "money equivalent to the difference between the market price and face value of bonds sold." The act of October 8th is merely a regulation of the rate of interest to be paid for the whole period on bonds of a county, or a municipality--meaning town and city bonds to which the act was applicable--stipulating that the rate of interest on bonds issued by counties and cities with a population of over 5,000 shall not exceed 7 per cent. per annum, that bonds by towns and cities of less than 5,000 inhabitants shall not bear a rate of interest exceeding 8 per cent. per annum, and that such rate shall not be increased by a sale of the bonds below par. The act of October 6th is limited by its terms to county and municipal bonds of the class of counties indicated, regulates the manner of notice for bids and notice of sale, and provides for distribution of a portion of the proceeds of such sale. The policy of this act is to provide for a sale of bonds by counties or municipalities of the class indicated at the discount permitted, and then to throw around such sale reasonable provisions conducive to the obtaining of the best price possible for the sale of the bonds, and to equalize the price or to make just distribution of the proceeds so as to recognize and discharge any moral obligations due by the county to contractors who, within nine months prior to the approval of the act, had paid into the treasury of such bodies money equivalent to the difference between the market price and the face value of the bonds to aid the county in the sale of its bonds and to enable it to proceed without delay or interruption in the prosecution of the purposes for which the bond issue was authorized. No such provision for equalization and reimbursement is contained in the act of October 8th.

If it be necessary to further pursue the comparison of these acts, it may be noted that the only features in common are provisions for retroactive effect; that each shall become effective upon approval. The repealing of all laws or parts thereof in conflict and conditions precedent for notice are fundamentally different in each act. That of October 6th (applying to Jefferson and like counties or municipalities) is that the bonds may be sold only after a double advertisement: (1) For bids invited in an advertisement "published [for ten successive days] in some daily newspaper" in the municipality or county to issue such bonds; and (2) that the sale may not be made "until the names of the bidders and the amounts of their bids shall have been advertised for ten successive days in such newspaper." Under the act of October 8th the municipality (whether county or of the class of towns or cities provided for) desiring to sell at private sale its bond or bonds was required to give notice thereof "by publication once a week for two consecutive weeks, in a newspaper published in the county," if there be such newspaper, and, if there be no newspaper published in the county, then notice of such sale shall be given by posting in three public places for two weeks; and, if the bonds are that of a city or town, said notice should be published or posted in that municipality as required. The nature and contents of the notice required of such a private sale was that it shall contain a statement of the amount of bonds to be sold, the rate of interest they are to bear, the date and maturity of the bonds, and the terms and conditions under which they are to be sold. No provision for private sale of bonds or of the contents of the notice to be given is contained in the act of October 6th. For such requirements recourse must be had to other acts. The "West Act" had the effect of dividing the counties of the state into two classes in respect of the matter dealt with, and as having 150,000 inhabitants or more; and the act of Mr. Acker had application in counties of a less population than 150,000.

There being separate fields of operation for the two acts, and the respective legislative history of each not disclosing the intent of conflict, the act last approved by the Governor did not repeal by implication that approved on October 6th. It is then necessary to consider whether the retroactive provision of the act of October 6th is offensive to the organic law, it being provided therein that, if...