Commissioners' Court of Tuscaloosa County v. State
| Decision Date | 11 February 1913 |
| Citation | 61 So. 431,180 Ala. 479 |
| Court | Alabama Supreme Court |
| Parties | COMMISSIONERS' COURT OF TUSCALOOSA COUNTY et al. v. STATE ex rel. CITY OF TUSCALOOSA. |
Upon Rehearing, March 18, 1913
Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.
Mandamus by the State of Alabama, on the relation of the City of Tuscaloosa, against the Commissioners' Court of Tuscaloosa County, to require them to pay over to the board of commissioners of the city of Tuscaloosa the sum of $3,720 or such other sum as may be decreed to be due. Judgment for complainants, and respondents appeal. Corrected and affirmed.
Oliver Verner & Rice, of Tuscaloosa, for appellants.
Clarkson & Morrisette, of Tuscaloosa, and J. Manly Foster, of Montgomery, for appellees.
In the case of Board of Revenue of Jefferson County v. City of Birmingham, 172 Ala. 139, 54 So. 759, the original opinion dealt with the "one-fourth of one per centum" tax provided for in subdivision "a" of section 215 of the Constitution of 1901 for public buildings bridges, or roads, and which provides that this tax, when levied and collected, shall be applied exclusively to the purposes for which the same were so levied and collected. It was there held that this tax or any part thereof could not be turned over to municipalities for the improvement of streets, for the reason that the framers of our organic law did not intend to include city streets within the meaning of the word "roads," as used with reference to the one-fourth of 1 per centum tax as provided by subdivision "a" of section 215 of the Constitution. This construction, as to said special one-fourth of 1 per centum tax, was reaffirmed in the case of Pike County v. City of Troy, 173 Ala. 442, 56 So. 131, 274. In the Jefferson County Case, supra, upon rehearing, a majority of the court determined that the case did not involve the special tax of one-fourth of 1 per centum, but related to a part of a road tax levied under the general power of taxation, not to exceed one-half of 1 per centum, as mentioned in the first part of section 215 of the Constitution, and that Acts 1909, p. 304, which requires the commissioners' court or board of revenue to pay over to the municipality one-half of the road tax as is derived from the assessment of property within the municipality, was not unconstitutional, in so far as it related to a road tax levied and collected under the general power of taxation, as distinguished from the road, building, and bridge tax authorized by subdivision "a" of said section 215. This last opinion was reaffirmed in the case of Commissioners' Court of Calhoun County v. Anniston, 58 So. 252. As heretofore held, the act was not violative of section 215 of the Constitution, in so far as it deals with the road tax derived under a general levy as distinguished from the special tax of one-fourth of 1 per centum, and it was not then suggested, upon the consideration of either of the above cases, that said act was repugnant to any other constitutional provision, and it is neither the policy or custom of courts to wander into the field of speculation in order to gratuitously strike down a legislative enactment on some point not made or suggested in the brief or argument of counsel.
It is suggested, however, upon this appeal that the act is repugnant to section 216 of the Constitution of 1901 (section 7, Constitution of 1875), which prohibits the levy and collection of over one-half of 1 per centum of the value of property by a municipality, and in support of the suggestion or insistence we are cited to the case of State v. Southern Ry., 115 Ala. 250, 22 So. 589. This case has no bearing upon the present question, for there the act considered expressly increased the rate of taxation on property within the municipality above the constitutional limit, notwithstanding it was levied and collected by the state or county authorities. It was a tax on municipal property for municipal schools, and was not an appropriation of a part of a county fund legally levied and collected to the municipality. Here there is no additional burden of taxation put upon the property owners of the municipality, and the tax rate is in no sense increased, as the act creates a benefit instead of a burden on the city taxpayer. It simply, with the ends of justice and equity in view, requires the transfer of a certain portion of a fund legally collected, to the source from which it was derived, instead of expending all of said fund upon the highways outside of the municipalities.
It appears that the order appropriating the fund in question purports to have been made under the act of 1903 (Laws 1903, p. 433), instead of the act of 1907 (Local Acts 1907, p. 227), and which amended or repealed said act of 1903; yet it appears that the fund was transferred to the "Road and Bridge Fund" of Tuscaloosa county, and one-half thereof, as was raised under the general tax on property within the city of Tuscaloosa, either by a levy for road purposes or afterwards set apart for said purpose, should have been turned over to the city, instead of to the road and bridge fund. It may be true that the local act includes public buildings with roads and bridges, and that the general act of 1909 does not apply to funds levied or set apart for public buildings, but it does apply to funds set apart for roads and bridges, as bridges are but a part of the roads, and the commissioners' court, in order to comply with the general act of 1909, should designate the appropriation by separating the road and bridge fund from the amount set apart for public buildings, and should also separate the fund derived from the general tax from that derived as a special tax under subdivision "a" of section 215 of the Constitution. It seems, however, that the fund in question--that is, which is being sought-- was a part of the general tax, and was set apart for roads and bridges, not public buildings, and, instead of appropriating all of it to the road and bridge fund, a portion should have been turned over to the city of Tuscaloosa.
In other words, it appears that the road and bridge fund of the county has received funds which should have been turned over to the city, and there is no reason why the commissioners' court cannot correct an error which it has made, as the fund is not
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