Montgomery County v. City of Montgomery

• Decision Date: 07 November 1914
• Docket Number: 85
• Citation: 67 So. 311,190 Ala. 366
• Parties: COUNTY OF MONTGOMERY v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

67 So. 311

190 Ala. 366

COUNTY OF MONTGOMERY v. CITY OF MONTGOMERY.

No. 85

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the City of Montgomery against the County of Montgomery. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Mayfield and Sayre, JJ., dissenting.

A.H Arrington and John R. Tyson, both of Montgomery, for appellant.

W.A Gunter, of Montgomery, for appellee.

McCLELLAN J.

This is an action at law by the city of Montgomery against the county of Montgomery. Its purpose and object is to recover of the count of Montgomery $30,000 as the city of Montgomery's asserted portion of funds garnered by the county authority and directed by that authority to be devoted to the improvement, etc., of public roads and bridges within the confines of the county of Montgomery. The quotation of the first count of the complaint, along with the material parts of the agreed statement of facts, will serve to fully disclose the controversy now under review. The first count reads:

"The plaintiff claims of the defendant the sum of thirty thousand ($30,000) dollars, with interest thereon from the first day of March, 1912, for this, to wit: That in the month of February, 1912, the board of revenue of the county of Montgomery transferred to the road and bridge fund of said county from its general fund, collected under the general levy for general purposes, the sum of eighty-five thousand ($85,000) dollars, and that thereby it became and was the duty of the board of revenue of said county, making said transfer, to pay to the plaintiff, out of said funds so transferred, one-half of the proportion of said sum so transferred, as was collected on the property located in the corporate limits of the plaintiff.

"And plaintiff avers that one-half of the said proportion of said sum so transferred to the road and bridge fund, which was collected on the property located in the corporate limits of the plaintiff, amounted to the sum of thirty thousand ($30,000) dollars, or other large sum; that the said defendant failed and refused to pay the said money or any part thereof, to the plaintiff, and still refuses to pay the same, and used the same for other purposes; and plaintiff claims the said sum as now due to it, with interest thereon from, to wit, the first day of March, 1912."

The agreed statement of facts is as follows:

"It is agreed by and between the attorneys of record in this cause that the board of revenue of Montgomery county during the year 1911 made a general levy of one-half of 1 per cent. for general purposes, and that in that levy there was no specification that any part of it was for road purposes; that during the month of February, 1912, the board of revenue of Montgomery county entered an order transferring $85,000 as a surplus from the general fund in the treasury of the county to the road and bridge fund belonging to said county; that the general fund of the county, at the time this order was entered, was made up from taxes collected under the general levy of one-half of 1 per cent. and from funds collected from license taxes, taxes on recorded mortgages, money derived from hard labor convicts, and from fines imposed for convictions for criminal offenses.

"It is further agreed that under the general levy of one-half of 1 per cent. made in June, 1911, by the board of revenue, there was collected between October 1, 1911, and September 30, 1912, the sum of $155,553.39, and that during this period there was collected from sources other than the one-half of 1 per cent. levy approximately $80,000; the total receipts derived from one-half of 1 per cent. and other sources approximated $235,555.39, of which sum $102,241.19 was expended for county purposes other than road purposes, leaving a balance of $133,314.20, out of which the $85,000 was transferred to the road and bridge fund, which was expended by the county before this suit was commenced; that the books of the county do not show the assessed values of city property separately from the assessed values of the property outside of the city; that this, however, is shown by the books kept by the city, in which all assessed values of property within the city were taken from the county books of assessment.

"That for the year 1911 the total assessed tax value for the county was $31,861,679, as shown by the books of the county. That, as shown by the books of the city, of the total assessed tax values of the county, $22,394,739 was the assessed value of property in the city; that the assessed value of the property in the city was 70.29 per cent. of the total assessed tax values of the entire county; that 70.29 per cent. of one-half of $85,000 is $29,873.25; and that the interest on this amount from March 1, 1912, to this date, is $3,896.77, making a total of $33,770.02."

The city's claim is based upon sections 1 and 2 of the act approved August 26, 1909. Acts Sp.Sess. 1909, pp. 303, 304. Those sections read:

"Section 1. That the maintenance of streets of municipalities in the state of Alabama is hereby, for the purposes of this act, declared to be a county matter.

"Sec. 2. That courts of county commissioners and boards of revenue, where there is levied a road tax, general or special, or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing, repairing or maintaining roads or highways of any description, in the county, shall pay over each year to each municipality therein one-half of the money collected on such road tax on the property located in such municipality."

Pretermitting the consideration of all other questions that might be proposed on the record for review, a controlling meritorious issue of law presented is whether the sum claimed is a fund to which the city has a legal right.

In several decisions it has been decided here, after repeated full consideration of the question, that the application of a special road tax, levied and collected within the purview of section 215 of the Constitution of 1901, cannot be controlled by legislative enactment, since the Constitution commands that funds so garnered shall be applied to public county roads, not to urban ways, City of Tuscaloosa v. Court of County Commissioners of Tuscaloosa, 173 Ala. 724, 54 So. 763 (a ruling based on opinion in Board of Revenue v. State ex rel. City of Birmingham, 172 Ala. 138, 153-155, 54 So. 757); Pike County v. City of Troy, 173 Ala. 442, 56 So. 131, 274; Commissioners' Court of Tuscaloosa County v. State ex rel. City of Tuscaloosa, 180 Ala. 479, 61 So. 431. It follows, from the doctrine of these decisions, that section 1335 of the Code of 1907 (as readopted by the act of August 26, 1909 [Acts Sp.Sess. 1909, p. 174]), which purports to alone deal with a special road and bridge tax, was and is constitutionally invalid. Constitution 1901, § 215, div. (a).

As appears, the fund here in question is not the product of a special road or bridge tax, under section 215 of the Constitution; but it is a part of the general fund of the county, gathered by taxation under the general power conferred on counties. As also appears, the fund here in question is a part of the fund segregated by the county authorities in virtue of Code, § 5766, which reads:

"The court of county commissioners or board of revenue of any county of the state may transfer to the road fund of the county any surplus of general funds of the county in the county treasury or any part of such surplus whenever in the judgment of said court or board it will promote the interest of the county to make such transfer. Any surplus of general funds so transferred shall be used for the working of the public roads or the building of bridges or otherwise improving the public roads as the said court or board

may determine."

We come, then, to this unclouded inquiry: Did the act of 1909 (quoted ante) effect to invest the city of Montgomery with the right to a proportion of funds not the product of a tax laid "for the purpose of constructing, repairing, or maintaining roads or highways of any description in the county"? On the inquiry presented the really controlling words of the act of 1909 are these:

"Where there is levied a road tax, general or special, or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing, repairing or maintaining roads, or highways of any description, in the county."

It is apparent that the first phrase, viz., "where there is levied a road tax, general or special," had and has reference to a specific levy of a tax for the construction, repair and maintenance of public county roads. And it is equally obvious that the fund here sued for is not of the character of fund defined in the first phrase of section 2, just quoted. While this is manifestly true, the mentioned phrase is of consequence and importance in the ascertainment of the legislative intent sought to be expressed in the next succeeding phrase of section 2 of the act, viz.:

"Or where by the tax levy a portion of the tax is levied for or devoted to the purpose of constructing, repairing or maintaining roads or highways of any description, in the county."

It is upon the interpretation of the last-quoted language of section 2, read in connection with the other provisions of the act, that the decision here must turn.

It is entirely clear that the lawmakers purposed to require the payment over to municipalities of a proportion of certain funds that had come into the control of the county authorities. What fund--what description or character of funds--was required to be so paid over? In defining or describing the funds to be so paid over the statute writers employed...