Herbert v. Perry

• Decision Date: 04 December 1937
• Docket Number: 2 Div. 107
• Citation: 177 So. 561,235 Ala. 71
• Parties: HERBERT v. PERRY et al.
• Court: Alabama Supreme Court

177 So. 561

235 Ala. 71

HERBERT v. PERRY et al.

2 Div. 107

Supreme Court of Alabama

December 4, 1937

Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.

Bill in equity by W.F. Herbert against T.M. Perry and others, as members of the Board of Revenue of Marengo County. From a decree favorable to respondents, complainant appeals.

Affirmed.

BROWN J., dissenting.

W.F Herbert, of Demopolis, for appellant.

Geo Pegram, of Linden, for appellees.

G.W.L Smith, of Brewton, Fleming & Paul, of Elba, and C.L. Hybart, of Monroeville, amici curiae.

THOMAS, Justice.

In the absence of a demurrer, or any contention to the contrary, we shall construe and treat the bill in this cause as showing an actual existing controversy between the parties, which we are called upon to determine under the authority conferred upon the courts by our Declaratory Judgment Law (Gen.Acts 1935, p. 777). We shall therefore pretermit consideration of any question as to any technical defect in the pleadings. The parties have treated the pleadings as sufficient to invoke the jurisdiction of the court, and we are proceeding upon that theory.

The bill sought a declaratory judgment under Gen.Acts 1935, p. 777, as to whether Marengo County, through its board of revenue, had the power and authority to issue interest bearing county warrants payable out of the gasoline fund derived monthly from the State of Alabama and collected by the State under the provisions of Schedule 156.11, § 348, of the General Acts of Alabama of 1935 (General Acts of Alabama 1935, pp. 256, 441, 512), approved July 10, 1935, and under the resolution of the county board exhibited for public highway construction. See, also, General Acts of Alabama 1936, Ex.Sess., pp. 28, 29 and General Acts of Alabama 1927, pp. 348, 391, § 157 (Michie's Code, § 1397 (110).

When the several statutes touching the question for decision are considered, it is noted that they are to the effect (1) that the county gas taxes from the state must be used for construction, improvement, maintenance, and supervision of public highways, bridges, and the retirement of bonds issued to that end and for no other purpose (General Acts of Alabama 1935, pp. 441, 511, § 348, Schedule 156.9 and General Acts of Alabama 1936-37, Ex.Sess., p. 280; and analogy found in Houston County v. Covington et al., 233 Ala. 606, 172 So. 882); and (2) the county may expend not exceeding one-third of the amount received from the State from any tax on gasoline for the payment of any debt that may have been theretofore incurred by it in construction of county roads and bridges (General Acts of Alabama 1936, Ex.Sess., pp. 28, 29, and General Acts of Alabama 1932, Ex.Sess., p. 225 et seq.).

We have indicated that the county's power to make contracts is unlimited for the maintenance and construction of public roads and bridges, within the county; except such contracts shall not exceed the periods of time fixed,--ten or twenty years--according to the class within which the county may be, as defined by the General Acts of Alabama 1927, pp. 348, 391, § 157.

Under these statutes counties may issue interest-bearing warrants to road contractors for such work maturing within the period prescribed in the statutes. Littlejohn v. Littlejohn, County Treasurer, 195 Ala. 614, 71 So. 448, and Board of Revenue of Shelby County v. Farson, Son & Co., 197 Ala. 375, 72 So. 613, L.R.A.1918B, 881.

As the proposed warrants are to be paid solely out of the gasoline fund in question, they do not fall within inhibitions of the Constitution (In re Opinion of the Justices, 230 Ala. 673, 163 So. 105; Kimmons v. Jefferson County Board of Education et al., 204 Ala. 384, 388, 85 So. 774, and People's Bank of Mobile v. Moore, 201 Ala. 411, 78 So. 789) and are non-negotiable.

It is insisted that the general authority of the counties to issue such warrants was, in effect, excluded because of the passage of the Act of July 8, 1935, General Acts of Alabama 1935, p. 231. True, the latter act deals only with such counties as collect as much as $40,000 per annum from the fund there provided. The Counties of Marengo and Shelby do not belong to the class set up in the Act of July 8, 1935. General Acts of Alabama 1935, p. 231. It must be noted, however, that the latter act does not repeal in toto or limit the power of the counties as enumerated in section 1347 et seq. of the Code of 1923. Thus said counties are left the right to issue said warrants as are limited to ten years. The last-cited act raises the limitation, as to time, of the counties there dealt with to twenty years.

As noted in the opinion of the learned trial judge, some of the acts limited this fund to the maintenance and repair of the road, as distinguished from the construction; but the last legislative expression on the subject said fund to be used for construction as well as maintenance, etc. This question was dealt with in our recent decision in the case of Lyon v. Shelby County, 177 So. 306. The proposal in this case, on the resolution of the county board for construction of public highways, does not extend to maintenance, as is indicated in the exhibit made a part of this pleading. And such resolution, so treated, is approved under the statutes as to construction of public roads and bridges in the county, as classified by the statutes.

The main difference between the Shelby County Case (Lyon v. Shelby County, supra) and the instant case is that in the Shelby County Case the board of revenue sought to carry out and confirm a co-operative scheme with the Highway Commission, as provided by the quoted provision of the act in said last-cited opinion; whereas, in the present case, the warrants purported to be issued under the general power of the Board of Revenue of Marengo County for the construction, etc. Code of Alabama 1923, § 1347 et seq.; Michie's Code, § 1397 (110), p. 273; and the General Acts of Alabama 1927, pp. 348, 391, § 157.

The decree of the circuit court is therefore affirmed.

Affirmed.

ANDERSON, C.J., and GARDNER, BOULDIN, FOSTER, and KNIGHT, JJ., concur.

BROWN J., dissents.

BROWN, Justice (dissenting).

The appellees, the personnel of the Court of County Commissioners of Marengo County, acting as such Court of County Commissioners, at a called meeting held on September 30, 1937, adopted the following resolution:

"Be it resolved by the Board of Revenue of Marengo County, Alabama, in legal session convened, as follows:

"Sec. 1: That Marengo County, a political subdivision of the State of Alabama, be, and it hereby is authorized, empowered and directed to issue warrants for the purpose of constructing, resurfacing or improving roads and highways within the boundary of said county, to be paid out of its receipts from the tax on gasoline or motor oils paid to it monthly by the State of Alabama out of the State tax on gasoline. The payment of such warrants, both principal and interest, shall be and hereby is expressly limited to the funds received from said tax on gasoline and motor oils.

"Sec. 2: The amount of such warrants is hereby expressly limited to the principal sum of $275,000.00, which shall bear interest at the rate of not exceeding four per cent per annum, such interest being payable semi-annually at the depository of Marengo County, Alabama. Such warrants shall be issued for the principal sum of $1,000.00 each, with interest at not exceeding four per cent from date, shall be numbered

serially, and shall run for a term not exceeding ten (10) years, and shall be signed by the President of the Board of Revenue of Marengo County, Alabama, and attested by the Clerk of such Board of Revenue. Such warrants may be registered or may be coupon warrants with interest coupons attached payable semi-annually, as herein provided, at the option of the purchaser or purchasers of such warrants.

"Sec 3: There is hereby expressly appropriated out of the receipts of Marengo County of the tax derived on gasoline and motor oils, as now provided by law, an amount equal to one-third of the total of such receipts as a sinking fund for the payment of interest on such warrants and the principal as they mature, as herein provided. Such sum hereby appropriated is to be set aside and segregated from all other county funds out of the amount received each month by Marengo County out of said gasoline and motor oil tax fund as is now provided by law and such sum shall be used solely and exclusively for the purpose of paying the interest on said warrants semi-annually and the principal as they mature, as herein provided. Said warrants shall mature serially and shall be payable after the first year as to principal semi-annually as the sinking fund herein provided for shall accumulate a sufficient amount to pay the principal on such warrants after all of the interest on all of said warrants outstanding shall have been paid semi-annually as herein provided. The warrants shall be paid as to principal beginning with the lowest numbered of such serially numbered warrants and shall be paid thereafter in the next higher number serially until all of such warrants shall be paid and retired.

"Sec 4: After the payment of the semi-annual interest on said warrants, it shall be the duty of the Clerk of the Board of Revenue of Marengo County, Alabama, to ascertain the amount on hand or in the bank of the sinking fund herein provided, and it shall be his duty to publish in some paper published in Marengo County, Alabama, a notice that certain warrants, denominating them serially, will be paid upon presentation at the office of the county depository and no interest shall accrue on such warrants after thirty days after the publication of the notice of proposed payment and retirement herein...