Shaver v. Robinson

Per Curiam.— The constitutions of 1868 and 1875 each ordains “ That the General Assembly may levy a poll-tax not to exceed one dollar and fifty cents on each poll, which shall be applied exclusively in aid of the public school fund.” It is contended before us that the word “ exclusively ” requires that the entire sum of the poll-tax, without abatement or diminution for any purpose, shall become part of the school fund. We think this construction too narrow and strict. The exact meaning of the convention, as we understand it, is that the poll-taxes shall, for all time, constitute a school fund, which shall not and can not be appropriated to any other object. It was not contemplated that it should be relieved of the common burden of all revenue raised under our statutes—the expense of its own assessment and collection. We think the following provisions of our statutes do not violate the clause of the constitution, copied at the opening of this opinion. “Act to revise and amend ‘an act to keep in each county of this State a proportionate share of the public school money,’” approved March 19, 1875—sec-tion 11 thereof; Pamph. Acts, 56; section 38 of the Revenue Law of 1875, page 19; section 15, ch. 5, Revenue Law, approved March 6, 1876, pages 58-9; section 9, page 8, of act to keep proportionate part of public school money in each county, approved April 19, 1873; section 42 of the Revenue Law of 1868, page 312; Code of 1876, sections 402, 414, 424. So, we think it was competent for the legislature to charge upon the poll-tax fund the commissions of its assessment and collection. In the Revenue Law of 1868, section 59, page 316, after declaring the rate of commissions to be paid the tax-collector, graduated by the amount of taxes collected, and directing that the collector “ shall be authorized to retain the same rate of commissions out of the county taxes,” the statute further enacts that the collector “ shall be allowed by the auditor five per cent, for collecting the poll-tax.” At that time the poll-tax and other school moneys raised by taxation [201] were required to be paid into the State treasury, thence to the superintendent of education, and the fund was then distributed and paid by him to the several county superintendents. The law being thus, and the poll-tax passing into the treasury after, and pursuant to a settlement with the Auditor, there was a fitness in confiding to that officer the adjustment of the tax-collector’s commissions. Under the statute “ To keep in' each county of this State a proportionate share of ihe public school money,” approved April 19, 1873—Pamph. Acts, 6—it was ordered “ that each tax collector shall, at the ■end of every month, pay all poll-taxes collected during such month, to his county treasurer, and take his receipt for the same in duplicate, endorsed and approved by the probate judge of his county, and the tax-collector shall immediately forward one of these receipts to the State Superintendent of Public Instruction, and a similar receipt shall be received as cash in the settlement of his accounts with the State Auditor.” This section shows that the tax-collector’s settlements, even for the poll-taxes collected, were still to be made with the Auditor, although the poll-taxes were not to be paid into the State treasury. The ninth section of this statute enacts “ That nothing in this act shall be so construed as to prevent any school money from bearing its proportionate part of the expense of assessing and collecting the same.” As the statute then stood, the Auditor was to determine the amount of the tax-collector’s commissions for collecting the poll-tax, but it was to be taken out of the poll-tax fund. At the present time, and under the act “ To organize and regulate a system of public instruction for the State of Alabama,” approved February 8, 1877—Pamph. Acts, 199—it is declared that “ the poll-tax collected in each county [is] to be retained therein for the support of public schools thereof.” Section three of the same act declares that the county superintendent shall receive and keep the educational fund of his county, including poll-taxes, “exclusively for the use of public schools,” giving the tax-collector receipts, &c.—See Code of 1876, §§ 1010, 1013, 1134. And, since December 17th, 1874, the school money of the county is required to be paid to the county superintendent of education.—Code of 1876, § 1112. On such payment, the tax-collector takes from the county superintendent “ receipt in duplicate for the amount so paid, which receipt shall specify whether the money thus paid was money collected as poll-tax or otherwise ; and one of the receipts shall be received as cash in his settlement with the Auditor.”—lb. Through all our chang [202] ing legislation since 1868, the clause has been retained that the tax-collector “ shall be allowed by the Auditor five per cent, for collecting the poll-tax, [Code of 1876, § 424], although, since April 19th, 1873, the poll tax money has not gone into the State treasury, nor been j3aid through the Auditor. Section 402 of the Code of 1876 still retains the clause that “ the assessor shall be allowed three per cent, for making list and keeping book of poll-taxes, . . . which shall be paid out of the poll-tax.” And, in enumerating the sources of revenue “for the maintenance of a system of public schools throughout the State,” section 1006, subdivision 6 of the Code of 1876, copying from the act of February 8, 1877, expresses and includes only “The net amount of poll-tax which may be collected in this State.” We think it clear that through all our changing legislation, the expense of assessing and collecting the poll-tax, has been made a charge on the fund itself. Was the Auditor clothed with power to authorize the tax-collector to retain out of the poll-tax fund to be collected for 1877, the commissions due to him and the assessor for assessing and collecting the poll-taxes for 1875 and 1876? No-statute has been brought to our attention which confers this power, and we have not been able to find any warrant for such order. True, the Auditor’, in settling with the tax-collector, is clothed'with authority to decide the amount of' commissions due to the assessor and collector in regard to the poll-taxes embraced in that settlement; but his authority does not extend beyond this. His order, if given, was utterly void. Neither can the statute of set-off avail the tax-collector. It does not reach such a case as this.—Hibbard v. Clark, 56 N. H. 355; Finnegan v. City of Fernandina, 15 Fla. 379; Cobb v. Corp. Eliz. City, 75 N. C. 1. Taxes and the support of the common schools are wants vital to the-public welfare, which can not be defeated by cross demands," however equitable and meritorious. We admit the hardship in the present case, but the legislature is alone competent to relieve it. It results from what we have said that the tax-collector is entitled to retain for his own and the assessor’s commissions for the year 1877, but not for the previous years. The judgment of the City Court is reversed, and the cause-remanded to be proceeded in according to the terms of this opinion. Whether the present Auditor rightly reviewed and reversed [203] the ruling of his predecessor as to commissions for 1875, is not before us, either as to parties or subject-matter. We will not consider it.