Sisk v. Cargile

• Decision Date: 30 June 1903
• Citation: 35 So. 114,138 Ala. 164
• Parties: SISK v. CARGILE ET AL.
• Court: Alabama Supreme Court

35 So. 114

138 Ala. 164

SISK v. CARGILE ET AL.

Supreme Court of Alabama

June 30, 1903

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

Bill by W. D. Sisk against C. L. Cargile and others, constituting the court of county commissioners of Jackson county. From a decree dismissing the bill for want of equity, complainant appeals. Affirmed.

The following facts are averred in the bill: "By virtue of an act to authorize Jackson county to build macadamized roads and bridges, and to issue bonds of the county to aid in the construction thereof," approved December 7, 1898, and acts amendatory thereto, Jackson county has issued from time to time prior to November 1, 1902, bonds of the county aggregating the sum of $187,500. The total bonds authorized to be issued by said act was $250,000. The bonds so issued are outstanding, the proceeds having been expended in the construction of macadamized roads and bridges, pursuant to said act. The system of roads set out and described to be constructed under said act have not been completed, and cannot be completed without a sale and use of the proceeds of the remaining $62,500 of bonds, authorized by said act. At the November term, 1892, the board of county commissioners of Jackson county made an order, authorizing the issuance of said remaining bonds. To facilitate a sale of said bonds, and to provide means for the payment of principal and interest thereon, there was passed by the Legislature of Alabama, and approved by the Governor on February 28, 1903, an act to provide for the payment of the principal and interest of certain bonds to be issued under "An act to authorize Jackson county to build macadamized roads and bridges, and to issue bonds of the county to aid in the construction and building thereof," approved December 7, 1898, and acts amendatory thereto. Under the authority of the last-named act, the court of county commissioners are proceeding to issue $62,500 of bonds for the county of Jackson and are proceeding to make a levy of a special tax, under said act of 1 1/4 mills on all of the taxable property of said county and, unless enjoined will levy said tax and enforce the collection thereof against the property of complainant, and other taxpayers of said county. The levy of 1 1/4 mills, as an additional tax, sought to be levied, solely by authority of the act approved February 28, 1903. It was then averred in the bill that said act was unconstitutional and void; the averments of said bill as to its unconstitutionality and validity being in words and figures as follows:

"The proposed levy of such special tax is illegal and void for the reason that the act of the Legislature of Alabama, under which it is made, is violative of various provisions of the Constitution of Alabama, 1901, as follows: It is violative of section 45, in that the act is amendatory in character and seeks to revive, amend, extend or confer the provisions of a former act by reference to its title merely, without re-enacting and publishing at length the provisions so revived, amended, extended or conferred.

"It is violative of subdivision 15, § 104, in that it is a local law, regulating the assessment or collection of taxes not in connection with existing municipal indebtedness created prior to 1875.

"It is violative of subdivision 17 of section 104, in that it is a local law authorizing the county to issue bonds, whereas the issuance of said bonds has not been authorized before the enactment of such law, by a vote of the duly qualified electors of said county, at an election held for that purpose.

"It is violative of section 105, in that it is a local law enacted in a case provided for by general law, or in which the relief sought can be given by the courts of the state.

"It is violative of section 106, in that it is a local law, and notice of the intention to apply therefor was not published and proof of such notice made as required by section, and complainant hereto attaches certified copies of the journals of the two houses marked 'Exhibit B' and 'Exhibit C' as a part of this bill, from which complainant avers it is not shown that said bill was duly and legally passed.

"It is violative of section 107, in that, it is a local law modifying an existing local law without notice and proof as required by said section, for proof of which reference is made to copies of the journals aforesaid.

"It is violative of section 215, in that it seeks to levy a greater rate of taxation for county purposes than one-half of 1 per centum on the taxable property of the county, and is not for any of the purposes enumerated in said section for which an additional levy may be made. It seeks to authorize a special levy for bonds authorized by existing law, and not for a debt created for roads after the ratification of the Constitution of 1901.

"It is violative of section 224, in this: The total assessed value of the taxable property in Jackson county at the date of the approval of said act was, and now is, $4,133,243. At the time of the ratification of the Constitution of 1901 such assessed value did not exceed $4,000,000, but was about said sum. At the date of such ratification Jackson county had outstanding bonded indebtedness issued under the act of 1898 aforesaid, and which is still outstanding to the amount of $125,000. On March 1, 1902, Jackson county issued another series of said bonds of $62,500, making a total bonded debt at the time of the passage of the act of February 28, 1903 and now outstanding of $187,500. The issuance of the remaining $62,500 of bonds for which the special levy is to be made makes a total debt of about $250,000, which exceeds 3 1/2 per centum of the assessed value of taxable property, and further exceeds 5 per centum of the assessed value of such taxable property. Wherefore, complainant says the special levy sought to be made is to be applied to illegal indebtedness, being in excess of the limit prescribed for county indebtedness by said section 224."

The prayer of the bill was that an injunction be issued, restraining the defendants as constituting the court of county commissioners from making the special levy of the tax, as in the bill set forth, under authority of the act of February 28, 1903. The act approved February 28, 1903, and copies of the journals of the two houses, relating thereto are set forth as exhibits to the bill. The respondents demurred to the bill upon the following ground: "(1) The bill shows no ground of objection to the proposed levy of a special tax. The act of February 28, 1903, is valid and authorizes such levy. (2) The act is not amendatory, or reviving in character, but is original in form and substance, and not exhibited by section 45 of the Constitution of Alabama. (3) The act is not one 'regulating the assessment or collection of taxes,' within the prohibition of subdivision 15, § 104, of the Constitution. It authorizes merely a levy of a tax. A legislative function wholly separate from the assessment and collection of same. (4) It is not an act authorizing a county to issue bonds within the prohibition of subdivision 17, § 104, of the Constitution. Its sole purpose is the levy of a tax to pay a bonded debt to be created under authority of and for purposes named in the bond act of 1898. (5) Said act is not violative of section 105 of the Constitution. There is no general law, authorizing counties to levy a special tax for roads, or for payment of bonded debts created to build roads. (6) The act is not violative of section 106. The bill shows by the exhibit of the House Journal thereto that notice was given of the intention to make application for its passage, and proof made, in all respects as required by said section. (7) The bill shows that section 107 was strictly complied with in the passage of the law; and further that it is not an act to repeal or modify any existing local law. (8) The act is not violative of section 215. The bill shows and the act itself shows that the tax so levied is for the payment of a debt created, after the ratification of said constitution for building roads, and is therefore for a purpose specially authorized by said sections. (9) The act is not violative of section 224. The bill shows that the bonded debt to be paid by such levy was authorized by existing law at the time of the ratification of the Constitution and is specially exempted from the limitation on county indebtedness prescribed by said section."

W. H. Norwood, for appellant.

Virgil Bouldin, for appellees.

HARALSON J.

The act in question is original in form, complete and intelligible in itself. It simply provides, by a special levy of taxes, as necessity therefor arises, additional means to pay the bonds authorized by an original act, passed in 1898 for the construction of public macadamized roads in Jackson county. All other provisions of this special act are merely administrative, and do not affect its validity. That it does not offend section 45 of the Constitution, prohibiting the amendment of an existing law by reference to its title only, is fully settled by former decisions of this court. Gandy v. State, 86 Ala. 20, 5 So. 420; State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L. R. A. 520; Thomas v. State, 124 Ala. 48, 27 So. 315; Keene v. Jefferson County, 135 Ala. 465, 33 So. 437.

Section 104 of the Constitution prohibits the...