Southern Ry. Co. v. Cherokee County

• Decision Date: 30 June 1905
• Citation: 42 So. 66,144 Ala. 579
• Parties: SOUTHERN RY. CO. v. CHEROKEE COUNTY.
• Court: Alabama Supreme Court

42 So. 66

144 Ala. 579

SOUTHERN RY. CO. v. CHEROKEE COUNTY.

Supreme Court of Alabama

June 30, 1905

Appeal from Circuit Court, Etowah County; W. W. Haralson, Judge.

"To be officially reported."

Action by the Cherokee county against the Southern Railway Company to recover taxes due the county under a special levy made for the purpose of meeting the expenses of repairs on public roads of the county which the court of county commissioners contemplated making. From a judgment for plaintiff, defendant appeals. Affirmed.

Hood &amp Murphee, for appellant.

J. A Bilbro, for appellee.

DENSON J.

Section 215 of the Constitution provides that: "To pay any debt or liability now existing against any county, incurred for the execution, 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 a special tax not to exceed one-fourth of one per centum, as may have been or may hereafter be authorized by law," etc. By an act of the Legislature approved September 30, 1903, the court of county commissioners, or other governing body of like jurisdiction, in any county in this state, was authorized to levy and collect such special taxes as might be deemed necessary, not to exceed one-fourth of one per centum per annum, for the purpose of paying any debt or liability then existing against any county, incurred for the erection construction or maintenance of the necessary public buildings or bridges, or that might thereafter be created for the erection of public buildings, bridges, or roads, etc. Gen Acts 1903, p. 307. The court of county commissioners of Cherokee county levied a special road tax of 1 1/2 mills. The proof showed that the levy was made before any debt or liability was created for the erection or maintenance of the public roads. The single question presented by this appeal is, did the court of county commissioners have the power to make the levy in advance of the creation of any liability or debt on account of the erection or maintenance of any public road? In other words, was the existence of the liability or debt at the time the levy was made indispensable to a valid exercise of the power to levy the tax? "It is presumed that the Legislature in granting the power has clearly indicated its intention, and doubts or ambiguities arising from the terms used by the Legislature must be resolved against the county. But the courts must not defeat the legislative intent or defeat powers expressly granted or necessarily implied by a strict construction." 27 Am. & Eng. Ency. Law, 870 (2), notes 4 and 5.

Good roads have been a subject of general discussion throughout the state; especially was it so at the time the convention which framed the Constitution was held, and...