LIVINGSTON, Justice.
This is
an appeal from a declaratory judgment rendered in the court
below on a petition filed by the appellant under and by
virtue of the provisions of the Act of 1935, pages 777 et
seq., Code 1940, Tit. 7, §§ 156-168, in behalf of himself and
all other citizens and taxpayers of Marshall County, Alabama
against said county, the judge of probate and ex-officio
chairman of its Court of County Commissioners, and the
members of its Court of County Commissioners; the Court of
County Commissioners being the governing body of said county.
The
suit sought a declaratory judgment based on the existence of
a justiciable controversy arising out of the contention made
by the appellant that a proposed issue of warrants by the
appellee county would be invalid, and that there is no
authority in law for payment of the same by said county. The
answer of appellees admitted the allegations of fact set
forth in the petition, but denied that the proposed action of
the Court of County Commissioners of Marshall County and the
proposed issue of warrants, or either of them, would be void
and further joined in the prayer for a declaratory judgment.
By stipulation between the parties, the allegations of fact
set forth in the petition were admitted. The cause was
submitted on the petition, the answer and the stipulation.
In
brief appellees adopt the following statement of controlling
facts, as set forth in brief of appellant:
"Prior
to May 31, 1941, appellee county duly issued and delivered
various warrants (which are herein referred to as 'the
outstanding warrants') at various times and in varying
amounts for the construction or maintenance of roads and
bridges. The outstanding warrants are now outstanding in
large sums and are payable out of the revenues receivable by
the county from the tax levied by the State of Alabama on
distributors, refiners, retail dealers and storers of
gasoline levied under the provisions of Title 51, section
647, of the Code of 1940
(which tax is herein referred to as 'said State tax')
and distributed to the counties of said State under the
provisions of Title 51, sections 655 to 657, inclusive, of
said Code. For the payment of the principal of and interest
on the outstanding warrants the county did prior to May 31
1941, duly pledge and order set aside, out of the revenues
receivable by the county from said State tax, varying amounts
during each of the months from December 1941 to and including
January 1948, ranging from a total minimum of $2,000 to a
total maximum of $3,870 during any one month. Subsequent to
May 31, 1941, said county has made arrangements with the
State of Alabama for the construction and improvement of two
necessary public roads in the county, a portion of the cost
of which is to be borne by the county and a portion by said
State. No part of the work thereon has yet been done. The
petition does not so aver but it is admitted by the appellant
that no obligation has yet been incurred under such
arrangement and the court of county commissioners of the
county is acting in good faith in its intention to carry out
the proposed plan. Recognizing that such would be the only
means whereby the county could finance its portion of the
cost of the public roads so proposed to be constructed, the
court of county commissioners of the county on December 8,
1941, adopted a resolution evidencing its intention to issue
and sell $100,000 principal amount of State Gasoline Tax
Warrants (which are herein referred to as 'the proposed
warrants') of the county to be dated January 1, 1942, and
to mature during the years from 1948 to 1951, inclusive, and
provided that the same would be sold at the par value thereof
plus accrued interest thereon to the date of their delivery
for the purpose of raising funds with which to pay the
county's portion of the cost of constructing said public
roads. The proposed warrants would not be general obligations
of the county but the principal thereof and interest thereon
would be payable solely out of the revenues which might
hereafter be received by the county from said
State tax, and it was provided in said resolution that there
should be paid into a special fund, out of the revenues
received by the county from said State tax, for payment of
the principal of and interest on the proposed warrants,
certain amounts each month from December 1941 to and
including December 1950.
"The
county did not then have and would not have during its
current fiscal year funds sufficient to pay its portion of
the cost of constructing said roads and in order to raise
funds for such purpose it would be necessary to anticipate by
the sale of proposed warrants a portion of the revenues which
would be received by the county in the future from said State
tax. No funds would be available for payment of the proposed
warrants at the time the same would be issued. The proposed
warrants would not be issued for the purpose of refunding or
financing any indebtedness, obligation or commitment of the
county outstanding on or prior to May 31, 1941, and would not
be issued for the purpose of paying any emergency obligation
resulting from an act of God or the public enemy over which
said court of county commissioners had no control. The amount
proposed to be set aside each month in said special fund for
the purpose of paying the principal of and interest on the
proposed warrants, when added to the amounts heretofore
pledged and ordered set aside for the payment of the
principal of and interest on the outstanding warrants, would
in many months exceed one third of the total amount received
by the county from said State tax during each of the months
of October, November and December, 1941, and, when computed
on an annual basis, would also exceed one-third of the total
of the revenues received by the county during the fiscal year
of the state and county ended September 30, 1941."
The
trial court entered the following judgment, from which this
appeal was perfected:
"This
cause coming on to be heard on this date by agreement of the
parties, was submitted for final decree on the petition, the
answer of the respondents thereto, and the stipulation of the
parties filed in this cause, and the same having been argued
by counsel and considered and understood by the court, and
the court being of the opinion that the parties are entitled
to the rendition of a declaratory judgment as prayed for in
said petition, it is ordered, adjudged and decreed by the
court as follows:
"(1)
Title 12, Chapter 6 of the Code of Alabama of 1940, does not
apply to the revenues receivable by the respondent county
from the tax levied by the State of Alabama on distributors
refiners, retail dealers and storers of gasoline under the
provisions
of Title 51, section 647, of said Code and distributed to the
counties of said State under the provisions of Title 51,
sections 655 to 657, inclusive, of said Code.
"(2)
Title 12, section 78, of said Code does not prohibit the
issuance by the respondent county of the State Gasoline Tax
Revenue Warrants to be dated January 1, 1942, proposed to be
issued as set out in the petition herein.
"(3)
Said warrants so proposed to be issued by the respondent
county will not constitute a 'debt that may have been
incurred by such county for the construction or maintenance
of roads or bridges' within the meaning of Title 51
section 647, of...
