Francis v. Southern Railway Co.

TYSON, J. — The provision of the constitution as found in article 11, section 5, is a limitation upon the power of the general assembly to authorize a county to levy a larger rate of taxation in any one year on the value of the taxable property therein than one half of one per centum except as otherwise provided therein. Obviously any legislative enactment authorizing any greater rate of taxation to be levied than the one prescribed in this section would be unconstitutional. The act assailed in this case contains no reference as to the rate of taxation fixed by this limitation. The authorization to the commissioners’ court of Jefferson county to levy a tax of five cents on the one hundred dollars is broad’and without limitation in respect to its being in excess of or within the one half of one per centum as fixed by the constitution. However, -,we cannot indulge a presumption in favor of its unconstitutionality; on the contrary, its unconstitutionality must clearly appear before we are authorized to declare it invalid on that account. The .construction, under this rule, which we are compelled to put u-pon the act, is that it authorizes the commissioners’ court of Jefferson county to levy the tax therein provided within the rate prescribed by the constitution. Such a construction relieves the act of all the infirmities urged against its constitutionality. . The complaint in this case does not aver' that the commissioners’ court in its order directing the levy of this tax, exceeded the rate of one half of one per centum. In the absence of such an averment, the presumption must be indulged that the order entered by the commissioners’. court to levy this tax, was within that rate. Under the construction we have placed upon the act, the case of the Southern Railway Company v. St. Clair County, in MS., is decisive of its constitutionality. The judgment of the court must be reversed and the cause remanded.