Herbert v. Perry

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.Aets 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.Aets 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 receiyed 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 fthe 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. *73 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 permits 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. 1 íhe proposal in this case, on the resolution pi 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. Footnotes [1] Ante, p. —.