Sisk v. Cargile

HARALSON, J. The act in question is original in form, complete and intelligible in itself. It simply provides, by a special levy of taxes, as necessity therefor arises, additional means to pay the bonds authorized by an original act, passed in 1.898 for the construction of public macadamized roads in Jackson county. All — 171 — other provisions of this special act are merely' administrative, and do not affect is validity. That it does not offend section 45 of the constitution, prohibiting the amendment of an existing law by reference to its title only, is fully settled by former decisions of this court. Gandy v. State, 86 Ala. 20; State v. Rogers, 107 Ala. 444; Thomas v. State, 124 Ala. 48; Keene v. Jefferson County, 135 Ala. 465; 33 So. Rep. 437. Section 104 of the constitution prohibits the legislature from passing a special or local law in any one of thirty-one specified instances. A local law, as here referred to, is defined, under another section, — • § 110, — to be one which applies to any subdivision or subdivisions of the State, less than the whole, and a special or private law is one which applies to an individual, association or corporation. There are an indefinite number of local, private and special interests, impossible to be anticipated, and which the framers of the constitution did not attempt to enumerate. They did provide by section 105, that “no special, private or local law, except the law fixing a time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this State.” In this connection it may be stated, that there is no general law in Alabama authorizing the levy of a tax for the payment of debts incurred for road purposes, and no relief can be had in the courts, since the levy of a tax is a legislative power. They also provided by section 1.01), that “the Legislature shall pass general laws under which local and private interests shall be provided for and protected.” When, however, the relief in this class of undefined local, special and private interests is not provided for by general laws, and the Legislature has failed to pass such laws, there is nothing in the Constitution which is a limitation on the right of the Legislature to pass special, private or local laws, except in one of the thirty-one specified instances named in said section 104. In these instances, the Legislature •must pass general statutes for relief, or none can be had, unless the same is already provided for by a general law. Section 109 was intended 'to impose a duty on the Legislature, by the enactment of general laws to that end, to protect local, private and special interests, but — 172 — it is not,' as in tlie tliirtymne enumerated instances in section 104, a limitation on its power to pass special laws to this end. The power of the Legislature to pass laws of a private, local or special interest, was unlimited; and outside of or beyond these thirty-one specified instances, the Legislature has the same power it had before the adoption of the present constitution, provided there is no general law under which relief is granted or may be had. The constitution of 1901, as did all the former constitutions of the State, vested legislative authority in the State Legislature, whose powers are plenary and unlimited except.by special limitations imposed by the instrument, and in this respect the present constitution is similar to all the others. — Mangan v. The State, 76 Ala. 60; Phoenix A. Co. v. Fire Dep’t of Montgomery, 117 Ala. 651. What is here said, has no reference to limitation on the Legislature to pass laws under Art. XII on the subject of “Corporations (and) Municipal Corporations.” It is insisted that the act in nuestion is violative of subdivision 15 of said section 104 of the constitution. This subdivision is one of the thirty-one cases in which by said section, the Legislature is prohibited to pass a special, private or local laAv, and reads: “Regulating either the assessment or collection of taxes, except in connection with the readjustment, reneAval, or extension of existing municipal indebtedness created prior to the ratification of the constitution of eighteen hundred and seventy-five.” As to this objection, Ave cannot do better than to adopt the reply of the learned counsel for the county: “I submit, that the, gravamen of the present act is the levy of a tax for a. defined purpose. The assessment azul collection of taxes is a Avholly distinct power and duty, vested in a distinct body of magistracy, from that of levying a tax. The constitution is aimed at local legislation tending to confuse the authorities in the administration of the, elaborate system of Iuavs regulating the assessment and. collection of taxes. It is not aimed at the exercise of the sovereign legislative pQAver to levy-taxes for lawful purposes by local or special laws. * * * I repeat, the gravamen of the act is the levy of-a special tax, a purely legislative power, Avhile the duties of the — 173 — various officers in relation to the assessment and collection of taxes are ministerial and sometimes quasi-judicial. — State v. Brewer, 64 Ala. 287; Perry County v. S. M. & M. R. Co., 58 Ala. 546; s. c. 65 Ala. 391; Fox v. McDonald, 101 Ala. 51, 69.” Section 215 of the present constitution, like its immediate predecessor (Art. XI, § 5, Const. 1875), prescribes the limit of taxation for county purposes in any one year on the value of taxable property therein, to be not greater than one-half of one per-cent. There was a proviso in that section of the constitution, found also in section 215 of the present constitution, — and in this respect the two are the same, — that to pay debts existing at the ratification of the constitution of 1875, an additional rate of one-fourth of one per centum might be levied and collected. There vas also a second proviso in the section of the constitution of 1875, that to pay any debt or liability then existing against any county, incurred for the erection of necessary public buildings, or other ordinary county purposes, or that might thereafter be created for the erection of necessary public buildings or bridges, any county might “levy and collect such special tax as may have been or might thereafter be authorized by law.” For such purposes the power of the legislature to authorize special levies, was not in terms restricted. Certainly, its powers to authorize counties to contract debts for the promotion of: public enterprises, not violative of the constitutional restrictions in behalf of life, liberty, and property, was not limited. The construction and mainte-. nance of public roads was not mentioned in the constitution of 1875, and the authority of the legislature to authorize the levy of taxes by a county for road purposes, was -unrestricted, the same as it was before the adoption of that instrument. — Keene v. Jefferson County, 135 Ala. 465; 33 So. Rep. 437, and authorities there cited. The constitution of 1901, however, placed a limitation of the power to levy a special tax beyond a specified rate for public buildings, bridges and roads, such as had not existed in the former constitution.. That provision■ is, “Provided further, that to pay any debt or liability now existing against any county, incurred for.the erection, 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 roods [italics ours], any county may levy and collect — 174 — such special taxes, not exceeding one-fourth of one per centum, as may have been, or may hereafter be authorized by law,” etc. If the debt for such purposes was created after the ratification of the constitution, the power to make the levy of the special tax is plainly provided -for, not to exceed one-fourtli of one per centum, and this, whether the debt was for buildings and bridges or roads, and whether incurred under laws theretofore or thereafter enacted. All these subjects, — public buildings, bridges and roads, — are thus placed on the same footing as to the levy of this tax. It is urged further, that the act under consideration violates section 224 of the present constitution. That section places a prohibition on a county to become indebted in any amount including present indebtedness,greater than three and one-half per centum of the assessed value of the property therein. This limitation is accompanied with a proviso, that it “shall not affect any existing indebtedness in excess of such three and one-half per centum, which has already been created or authorized by existing law to be created.” This in terms takes off and makes inoperative this limitation of power, as it affects the indebtedness of a county in excess of three and one-half per centum of the assessed value of its property, as to debts already created -or authorized by law to be created. As to such indebtedness, the provision is as though it were not in the constitution. But, this provision was not fully remedial, since some counties may have already incurred debts exceeding three and a half per centum of the value of their assessed property, and to meet this condition, another proviso was added, that in such case, the county “shall be authorized to incur an indebtedness of one and a half per centum of the assessed value of such property, in addition to the debt already existing.” Without more, and literally construed, this proviso might have limited the authority of the county to increase its indebtedness in the case supposed, to “the debt already existing.” But this same, proviso, concludes by adding, “Nothing herein contained shall prevent any county from issuing bonds, or other obligations, to fund or refund any indebtedness now existing or authorized by existing laws to be created.” — 175 — On the 7th of December, 1898, the legislature passed an act, “To authorize Jackson county to build macadamized roads and bridges, and to issue bonds of the county to aid in the construction and building thereof.” (Acts, 1888-99, p. 43.) By the 12th section of said act, the court of county commissioners of Jackson county was “authorized, empoicered and required [italics ours] to issue bonds of said county to the amount of two hundred and fifty thousand dollars to provide for the construction and building of said macadamized roads and the building of bridges,” etc. It is shown that under this act the court of county commissioners have issued $187,500 of these bonds in and about carrying into effect the provisions of said act. It thus appears that the total indebtedness of the county, authorized by said act to be created for the purposes specified, was $250,000, one hundred and eighty-seven thousand five hundred of which amount has already been created, and the remaining $62,500, to which the special act in question relates is a part of that $250,000, and ivas as fully authorized and required by the original act to be created, as that part of it for which the county has already issued its bonds. The act we construe simply authorizes the funding of the $62,500, as a part of the debt of the county theretofore authorized to be created, and is not violative of said section 224 of the present constitution. Its purpose is not to create a debt not already authorized by law, but. is simply in aid of the original act in its due administration by the court of county commissioners. We have confined ourselves strictly to the grounds of attack presented by the bill to the constitutionality of the act in question, and find no merit in any of them. There is plainly no merit in the objection that no notice of the intention to apply for the passage of the act was given and proof thereof made as required by the constitution, for the journal of the legislature, made a part of the bill, shows that a requisite notice was given and proof thereof duly made. , The chancellor sustained the demurrer to the bill and the motion to dismiss it for want of equity, and in this decree we find no error. Affirmed.