O'Rear v. Sartain

• Decision Date: 30 June 1915
• Docket Number: 109
• Court: Alabama Supreme Court
• Parties: O'REAR v. SARTAIN et al., County Com'rs.

69 So. 554

193 Ala. 275

O'REAR v. SARTAIN et al., County Com'rs.

No. 109

Supreme Court of Alabama

June 30, 1915

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Suit by Martin O'Rear against C.M. Sartain and others, as County Commissioners, to enjoin them from letting contracts for bridge construction. From a decree dissolving an injunction plaintiff appeals. Affirmed.

Ernest Lacy, of Jasper, for appellant.

Davis &amp Fite and Gray & Wiggins, all of Jasper, for appellees.

THOMAS J.

Appellant filed his bill, praying that appellees, as members of the court of county commissioners of Walker county, be enjoined from letting contracts for the construction of four steel bridges. A temporary injunction was granted on the filing of the bill. Appellees filed their answer under oath, and moved the dissolution of the injunction. On the hearing, submission was had upon the bill as amended, and affidavits supporting the same, together with the answer of the appellees and the affidavit of the judge of probate in support of the answer. From the decree dissolving the injunction the appeal is taken.

The bill as amended alleges that the last assessed value of the taxable property of Walker county, Ala., "for the tax year 1914, does not exceed the sum of $12,500,000;" "that the total outstanding indebtedness of the county amounts to $290,250, not including interest warrants;" that said interest warrants were on the courthouse debt, and amounted, at the time of the filing of the bill, to $100,457.50; that interest warrants outstanding on the bridge debt of the county amounted to the sum of $22,322.96. The interest warrants are payable annually, and, as shown by the exhibits to the affidavit of the county treasurer, have not matured. It is further alleged that there remain unsold $150,000 of the authorized county road bonds, and that if said bonds are sold this year, as is contemplated by the court of county commissioners, the indebtedness of the county will be increased to the sum of $413,560.80, not including the interest debt of the county on said bridge warrants and road bonds. It is further alleged that by the act approved August 2, 1907, three-fifths of all special taxes, except special school taxes, collected for Walker county, Ala., belong to the public road fund of said county, and no part of same is authorized to be spent, except in constructing and maintaining the public roads of the county, except that $2,000 of such taxes may be annually used for repairs to public bridges, and that the remaining two-fifths of said special taxes so collected each year have been set aside as a fund with which to meet the payments of the courthouse warrants, and that practically all of this two-fifths of said special taxes is required to pay said courthouse warrants as they respectively mature; that after the payment of maturing courthouse warrants, and of demands for building and maintaining the public roads of the county, there is, and will be, nothing left of this special tax fund with which to pay debts incurred for the construction of bridges already built or to be built; "that there is no fund out of the money collected by the county out of which payments can be made for bridges, except the general fund of the county; and that it requires all of the money paid into said general fund to meet the expenses of the county, outside of payments of the courthouse debt and money appropriated to the said road fund of the county."

The respondents aver "that the amount of the interest warrants referred to in the bill does not constitute an outstanding indebtedness against the county within the meaning of the constitutional limitation," and "that there remains unsold $150,000 of the county's road bonds"; but they deny that respondents "are making efforts at this time to sell such bonds, and allege that said amount is not an outstanding debt against Walker county." And respondents deny that the building of the proposed bridges entails an expense of $125,000 on the county, averring that, on the contrary, such bridges can be constructed at a cost of not exceeding $75,000. They further aver that the present indebtedness of the county is $262,805, and that, as under the Constitution and laws of Alabama the county is authorized to incur an indebtedness of approximately $437,500, the indebtedness to be incurred by the construction of the proposed bridges will not increase the total indebtedness of the county to the constitutional maximum, but that the present indebtedness and said proposed indebtedness for bridges will not aggregate in excess of $350,000--a sum $87,500 less than said constitutional maximum. The respondents deny that "there will be nothing left of the special road and bridge and general funds of Walker county out of which to pay for the bridges mentioned in said bill, but allege that Walker county will be amply able to meet its present indebtedness and the additional indebtedness incurred by the building of said bridges."

A county's authority to "become indebted" is limited by section 224 of the Constitution. This provision, peculiar to the Constitution of 1901, is 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."

To properly understand section 224, it must he construed in connection with section 215, which provides that:

"No county in this state shall be authorized to levy a greater rate of taxation in any one year on the value of the taxable property therein than one-half of one per centum: Provided that to pay debts existing on the 6th day of December, 1875, an additional rate of one-fourth of one per centum may be levied and collected, which shall be appropriated exclusively to the payment of such debts and the interest thereon: Provided, further, that to pay any debt or liability now existing against any county, incurred for the erection, construction, or maintenance of the necessary public buildings or bridges, or that may hereafter be created for the erection of necessary public buildings, bridges, or roads, (a) any county may levy and collect such special taxes, net to exceed one-fourth of one per centum, as may have been

or may hereafter be authorized by law, which taxes so levied and collected shall be applied exclusively to the purposes for which the same were so levied and collected." On counties having "become indebted in an amount, including present indebtedness, greater than three and one-half per centum of the assessed value of the property therein," section 215 can confer no right to levy taxes to pay an indebtedness incurred in excess of the limitation placed by section 224. To determine whether a county would "become indebted" in an amount exceeding the constitutional limitation, add the aggregate amount of the proposed contract to the county's present indebtedness, and if the sum of the contract for the proposed improvement and the total present indebtedness of the county is beyond the constitutional limitation, the power to contract the debt and to levy an annual tax is denied, to the extent of the excess. Hagan v. Commissioners of Limestone County, 160 Ala. 544, 562, 49 So. 417, 37 L.R.A. (N.S.) 1027; Gay-Padgett Hardware Co. v. Brown, 66 So. 161.

The question to be determined is: The meaning of the words "become indebted," as used in section 224 of the Constitution. Is it principal and accrued interest, or is it principal and all interest; that is, interest accrued and to accrue between the date of incurring the debt and the date the principal is to mature? Constitutions are the result of popular will, and their words are understood ordinarily as used in the sense that such words convey to the popular mind. 6 Am. & Eng.Ency.Law (2d Ed.) 924, 925. The words "become indebted" were used in section 224 of the Constitution in the ordinary and popular sense, and a natural and common-sense construction must be given them.

The case of Gunter v. Hackworth et al., 182 Ala. 205, 62 So. 101, is cited as authority for the proposition that the word "debt" is to be so defined as to embrace unmatured interest. The use, in the opinion, of the words, "The prohibition against indebtedness is generally construed to apply to indebtedness in all forms, however incurred, or for whatever purpose," however, did not decide this question. The decision in the Gunter-Hackworth Case turned on the question whether certain warrants that were issued for the rebuilding of the courthouse exceeded the constitutional limitation. The precise question before us was presented in Hagan v. Commissioners of Limestone County, supra. The bill sets out an itemized statement of the proposed increased indebtedness against which injunction was sought as:

"Total principal, $59,000.00; interest, $15,989.00; grand total, $74,989.00."

Mr. Justice Denson, for the court, said:

"We are also of the opinion, and so hold, that the amount to be considered, in determining whether the debt exceeds the limitation, is the aggregate amount of the contract.

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