Gunter v. Hackworth

• Decision Date: 17 April 1913
• Citation: 62 So. 101,182 Ala. 205
• Parties: GUNTER et al. v. HACKWORTH et al.
• Court: Alabama Supreme Court

62 So. 101

182 Ala. 205

GUNTER et al. v. HACKWORTH et al.

Supreme Court of Alabama

April 17, 1913

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

Bill by J.H. Gunter and others, resident citizens and taxpayers of Jackson county, against J.B. Hackworth and others, members of the commissioner's court of Jackson county, and another. Decree for respondents on demurrer, and complainants appeal. Reversed and remanded.

The bill is to enjoin the execution of a contract to build a courthouse, and to declare void interest-bearing warrants issued to pay for the same, and to further enjoin the issuance of such warrant, on the ground that the present indebtedness of the county, independent of the liability sought to be created by this contract, is greater than 3 1/2 per centum of the assessed taxable value of all the property in said county.

Cooper & Cooper, of Huntsville, for appellants.

Virgil Bouldin, and John B. Tally, both of Scottsboro, for appellees.

SAYRE J.

When the constitutional convention of 1901 addressed itself to the purpose of fixing arbitrary limits beyond which the counties of the state should not go in levying taxes and incurring indebtedness, there were presented to it all those possible exigencies of bridges swept away, courthouses, jails, and poorhouses destroyed, in which strict limitations might seriously impair the administration of those functions of government which are committed to county organizations. In the way of limiting indebtedness the result of its deliberation is found in section 224 of the Constitution which reads as follows:

"No county shall become indebted in an amount, including present indebtedness, greater than three and one-half per centum of the assessed value of the property therein provided, this limitation shall not affect any existing indebtedness in excess of such three and one-half per centum, which has already been created or authorized by existing law to be created; provided, that any county which has already incurred a debt exceeding three and one-half per centum of the assessed value of the property therein shall be authorized to incur an indebtedness of one and a half per centum of the assessed value of such property in addition to the debt already existing. Nothing herein contained shall prevent any county from issuing bonds, or other obligations, to fund or refund any indebtedness now existing or authorized by existing laws to be created."

One material point of difference between the parties arises in respect to the proper interpretation of the phrase "authorized by existing law to be created," which occur at the conclusion of the first proviso. The operation of these words in a certain contingency has had consideration in this court. By an act of December 7, 1898, the court of county commissioners of Jackson county had been "authorized, empowered and required" to issue bonds of the county to the amount of $250,000 to provide for the construction of macadamized roads and bridges in said county. On and prior to March, 1902, $187,500 of these bonds had been issued, constituting an indebtedness in excess of 3 1/2 per centum of the assessed value of the property in the county, and the question was whether the constitutional limitations stood in the way of an issue of the remaining $62,500 of the issue authorized by the act. In Sisk v. Cargile, 138 Ala. 164, 35 So. 114, the court held that the proposed additional issue of bonds constituted an indebtedness authorized by existing law (at the time of the ratification of the Constitution) to be created, saying, "as to such indebtedness, the provision is as though it were not in the Constitution." Nobody doubts the correctness of that decision; but appellees refer to sections 1403 and 1405 of the Code of 1896, of force at the time the present Constitution went into effect, and reading as follows: "1403.--The county buildings are to be erected, and kept in order and repair at the expense of the county, under the direction of the court of county commissioners, which court is authorized to make all necessary contracts for that purpose."

"1405.--It is the duty of the court of county commissioners of each county to erect a courthouse, jail, and other necessary county buildings; and such court has authority to levy a special tax for that purpose"--and they say these were existing laws authorizing the creation of an indebtedness. But we cannot accept the suggestion as furnishing a satisfactory explication of the constitutional purpose. To accept it would emasculate the limitation. Prior to the Constitution of 1901 counties had, by necessary implication the power to contract debts, though not to borrow money, in the execution of those purposes for which they were organized. Simpson v. Lauderdale County, 56 Ala. 64; Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611. This power they still have, but within the limits laid down in the Constitution of 1901. The prohibition against indebtedness is generally construed to apply to indebtedness in all forms, however incurred, or...