Dade County v. Kerce

In this cause Mr. Chief Justice ELLIS, Mr. Justice BROWN and Mr. Justice BUFORD are of the opinion that the order entered by the Circuit Court in this cause should be affirmed, while Mr. Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice CHAPMAN are of the opinion that the said order should be reversed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the judgment should be affirmed, therefore it is considered, ordered and adjudged under the authority of State, ex rel. Hampton, v. McClung, 47 Fla. 224, 37 So. R. 51, that the judgment of the Circuit Court in this cause be and the same is hereby affirmed. Affirmed. ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur. *Page 196 STATEMENT Chapter 14486, Acts of 1929, establishes a Board of Administration "which shall consist of the Governor, who shall be President, the State Comptroller, who shall be Secretary, and the State Treasurer, who shall be Treasurer." The State Treasurer is made "County Treasurer ex officio." The Board of Administration has the administration of funds for the payment of county and district road and bridge bonds. The State Treasurer as ex officio treasurer for all of the counties under the statute has the custody of funds belonging to counties and districts for the payment of county and district road and bridge bonds pursuant to the requirements of the statute. The title and pertinent parts of Chapter 15659, Acts of 1931, are as follows: "AN ACT Relating to Taxation, Levying and Imposing an Excise Tax on Gasoline and Other Like Products of Petroleum in Addition to Other Taxes Thereon; Levying and Imposing a License Tax on Every Dealer in Gasoline or any Other Like Product of Petroleum; Providing for the Report of Sale of Such Commodities, and the Collection and Payment of Such Taxes; Creating Special Funds for the Reception of Such Taxes; Providing the Purposes of Such Taxes, and for the Deposit, Appropriation and Disposition of the Proceeds Derived From Such Taxes, and Prescribing the Duties of Certain Officials with Reference Thereto, and Declaring Certain Roads to Have Been and to be Built for State Purposes and as Being State Undertakings; Repealing Chapter 14575, Laws of Florida, Acts of 1929, Relating to the Subject of Gasoline Taxes; Repealing Chapter 14573, Acts of 1929, Relating to the Subject of Gasoline Taxes, and Raising Special Revenue *Page 197 for Educational Purposes, and all Laws in Conflict with this Act; Providing for the Enforcement of this Act and Penalties for Violation Hereof. "Be It Enacted by the Legislature of the State of Florida: "Section 1. Every dealer in gasoline or other like products of petroleum in this State, under whatever name designated, shall pay a license tax of Five Dollars ($5.00) to the State, and in addition thereto, a tax herein termed `gas tax' of six (6c) cents per gallon for every gallon of gasoline or other like products of petroleum sold by him, and upon which the tax herein provided has not been paid, or the payment whereof has not been assumed by a person preceding him in the handling of said lot of products, such tax of six (6c) cents per gallon being made up of two separate taxes, being "First Gas Tax: A tax of three (3c) cents per gallon for the use of the State Road Department, as provided by law; "Second Gas Tax: A tax of three (3c) cents a gallon to be apportioned, as provided for in Section 8 of this Act, * * * "Section 3. All moneys derived from the gas taxes imposed by this Act, shall be paid into the State Treasury by the Comptroller, as follows: "First Gas Tax — Shall be paid into the `State Road License Fund;' "Second Gas Tax — Shall be paid into the `State Roads Distribution Fund.' "Which said special funds are hereby created for the reception of the same. * * * "Section 7. It is hereby expressly recognized and declared by the Legislature of the State of Florida that all *Page 198 roads being constructed or built or which have heretofore been constructed or built, or which will be hereafter constructed or built by the State Road Department under prior authorization and/or designation by the Legislature of the State of Florida as State Roads, or which were constructed or built by any county or special road and bridge district or other special taxing districts thereof, were, are and will be constructed and built as State projects and undertakings, and that the cost of the construction and building thereof was, is and will be a legitimate proper state expense incurred by a general and state purpose and should be wholly borne by the State of Florida. It is hereby expressly recognized that certain of the counties of the State of Florida and/or special road and bridge districts or other taxing districts of such counties have advanced or contributed and paid to the State Road Department varying sums of money to be used and expended by said State Road Department in the construction and building of state roads theretofore authorized and/or designated by the Legislature of the State of Florida as state projects, and it is hereby expressly recognized that certain of the counties of the State of Florida and/or special road and bridge districts or other taxing districts of such counties have paid or expended or caused to have been paid or expended varying sums of money in the construction and building of certain roads that are now state roads and heretofore designated as state roads by the Legislature of the State of Florida and that all such moneys have been and are being expended, furnished, advanced, contributed or paid out on account of expenses of the State in construction and building of said State roads to and for the general benefit of the State and that such sums should be returned and repaid respectively to each county to the amount that such county and/or any special road and bridge district or special taxing *Page 199 districts thereof have advanced or expended in the construction of the same. "Section 8. (a) The chairman and auditor of the State Road Department shall, within ninety (90) days after this Act becomes a law, ascertain and certify to the Comptroller of the State of Florida and to the Board of Administration and to each county within the State of Florida the amount of money advanced and paid by the several counties, and/or special road and bridge districts or other special taxing districts of any counties, to the state for the use of the State Road Department in the construction and building of state roads, specifying separately and particularly the amount advanced and paid by each county; and the chairman and auditor of the State Road Department shall, within ninety (90) days after this Act becomes a law, ascertain and certify to the Comptroller and to the Board of Administration and to every county of the State of Florida, the amount of money furnished, advanced, contributed, paid out or expended by the several counties and/or special road and bridge districts or other special taxing districts of such counties in the building and construction of roads that are now designated state roads, specifying separately and particularly the amount furnished and expended by each county. The amount so certified as to any county shall include all moneys advanced, contributed, paid and expended, as aforesaid, by such county and by every special road and bridge district or other special taxing district for road and bridge purposes on roads now designated as state roads, in such county. "(b) Said certificate shall be audited by the Comptroller, and, being found correct, shall constitute the basis for the subsequent allocation and apportionment of the moneys to be derived from the Second Gas Tax and from which the disbursement shall be made to, or for the benefit *Page 200 of, such respective counties as herein provided, out of said `State Roads Distribution Fund' account. The Comptroller shall each month, draw his order on the Treasurer of the State of Florida for the full net amount of moneys then with the State Treasury in said `State Roads Distribution Fund' specifying the counties to which said moneys shall be paid, and the amount to be paid to each county, respectively, which said sums so apportioned to the counties are hereby appropriated monthly out of said `State Roads Distribution Fund' account. Said orders of said Comptroller shall be countersigned by the Governor; and shall be payable to the State Treasurer as ex officio Treasurer of the counties, respectively, participating therein. The monthly schedule of installments to be so paid to or for such counties shall be computed, determined and paid out monthly in the following ratio, to-wit: "1. The proceeds of one cent of the said Second Gas Tax shall be apportioned to the credit of the several counties on the basis of area of said counties, that is to say, the apportionment shall be to the county in the proportion that the area of the county shall bear to the area of all the counties. "2. The proceeds of one cent of the said Second Gas Tax shall be apportioned to the credit of the several counties on the basis of population of the counties, that is to say, the apportionment shall be to the county in the proportion that the population of the county shall bear to the total population of the state, as determined by the last preceding general State or Federal census taken; and "3. The proceeds of one cent (1c) of said Second Gas Tax shall be apportioned to the credit of the several counties on the basis of contribution which has heretofore been made by the respective counties and/or special road and bridge districts or other special taxing districts of such *Page 201 counties to the construction of state roads, either through funds or the equivalent thereof of the county and / or special road and bridge district, or other special taxing districts, of such counties turned over to the State Road Department from time to time or through roads constructed by the counties and/or special road and bridge districts or other special taxing districts of such counties at county or district expense, and which were then or thereafter made a part of the existing highway system. "(c) Whenever the amount furnished, advanced, paid out, contributed or expended by any county and/or special road and bridge district or other special taxing district of such county, directly, or through the State Road Department, in the construction or building of such state roads, within such county, has been returned to such county, such county shall continue to participate in the distribution of the three (3c) cents of the Second Gas Tax as provided in Section 8 (b) hereof, so that thereafter a sum equal to the sum provided to be returned to or for such county under this Act shall be monthly paid into the State Road License Fund, and the same is hereby monthly appropriated to the use of the State Road Department for the construction within said county of those State Roads within such county which were at the time of the passage of this Act designated as and recognized by the State Road Department as being a part of the first, second or third preferential system of state roads, and which roads, to the extent of such funds, are to be constructed and built in such counties, respectively, by the State Road Department as soon as practicable as State projects and undertakings. "Such funds shall be applied and used by the State Road Department for such purpose and not otherwise, and the expense of constructing said roads is hereby declared to be *Page 202 a legitimate proper state expense to be incurred for a general and state purpose. "When any county in the State of Florida no longer participates under the provisions of this Act in the return to or for it of moneys contributed for the construction of state roads, as herein provided, and when these roads shall have been constructed which are at the time of the passage of this Act a part of the first, second and third preferential system of state roads within such county, then and thereafter all funds thereafter derived from the Second Gas Tax theretofore allotted or appropriated to or for said county shall be transferred to the State Road License Fund of the State of Florida in the manner and to be expended as provided by law. "Section 9. All moneys provided for hereunder to be credited to the various counties of the state and so paid to the State Treasurer as ex officio county Treasurer shall be administered by the Board of Administration, as provided by law. "Moneys to be used for road and bridge construction in the completion of the first, second and third preferential state road system within any county, as herein provided, shall be placed in the State Treasury in the State Road License Fund to the credit of the State Road Department and same is hereby appropriated for use by said State Road Department in the construction of roads and bridges in such preferential road system in the various counties to which the same is credited." Chapter 17974, Acts of 1937, is as follows: "AN ACT Relating to the Distribution and Expenditure of Monies Derived From Gasoline Taxes Placed to the Credit of the Several Counties of the State of Florida Having a Population of Not Less Than 180,000 According to the Last Preceding State Census, Conferring Certain *Page 203 Powers, Authorities, Directions and Duties Upon the State Board of Administration With Reference Thereto, and Prescribing the Duties and Powers of the Board of County Commissioners of Any Such County in the Expenditure of Funds Received Under This Act. "WHEREAS, the several counties of this state having a population of not less than 180,000 according to the last preceding state census have heretofore furnished, advanced, paid out, contributed or expended in the construction or building within such counties of certain roads which have been designated State Roads since Chapter 15659, Acts of 1931, became effective; and "WHEREAS, it is the legislative intent to refund to any such counties having a population as aforesaid all such contributions and payments heretofore made in the construction of such roads which have not been refunded under the provisions of Chapter 15659, Acts of 1931; NOW THEREFORE, "Be It Enacted by the Legislature of the State of Florida: "Section 1. That whenever any monies derived from that part of the gasoline taxes imposed under the provisions of Chapter 15659, Acts of 1931, apportioned to the credit of the several counties, shall be placed to the credit of any county or counties of this state having a population of not less than 180,000 according to the last preceding state census, the State Board of Administration and the State Treasurer, as Ex Officio Treasurer of any such county, are hereby authorized, empowered and directed to pay monthly to the Board of County Commissioners of any such county any such monies, which monies shall be used by the Board of County Commissioners of any such county for the payment of all interest and/or maturing principal *Page 204 on any road or bridge bonds of any such county being administered by the State Board of Administration under the provisions of Chapter 14486, Acts of 1929, and if there be any surplus over and above such requirements such surplus shall be used by the Board of County Commissioners of any such county to pay for the construction repair and/or maintenance of roads and bridges within such county. "Section 2. The repayments authorized and directed under the provisions of Section 1 of this Act shall be made irrespective of the exhaustion of the original credit to any such county under the provisions of Section 8 of Chapter 15659, Acts of 1931. "Section 3. For the purpose of carrying out the provisions of this Act, the Comptroller is required to draw such warrant or warrants as may be necessary to give effect to the purpose and intent of this Act, and the State Board of Administration and the State Treasurer, as County Treasurer Ex Officio, shall honor and pay such warrant when presented. "Section 4. If any portion of this Act, or any section, sentence, clause, phrase or word thereof shall be held to be void or ineffective because of uncertainty, repugnance to the constitution or otherwise, remainder of this Act shall not be affected thereby and shall remain in full force so as to effectuate as nearly as possible the purpose and intent of this Act. "Section 5. That this Act shall be considered supplemental to existing laws relative to the subject matter hereof and shall, in no manner whatsoever, alter or affect the present ratio of allocation as provided in subdivision (b) of Section 8 of said Act of 1931. "Section 6. All laws or parts of laws in conflict herewith are hereby repealed to the extent of such conflict. *Page 205 "Section 7. This Act shall take effect on the First day of July, 1937. "Became a law without the Governor's approval. "Filed in Office Secretary of State June 14, 1937."