Opinion
1 Div. 198.
May 12, 1921.
Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.
Barnett, Bugg Lee, of Monroeville (G. W. L. Smith, of Brewton, amicus curiæ), for appellant.
Complainant insists that the interpretation of the act as set out in the bill is correct.
Counsel cites quite a number of authorities bearing on municipal and the like contracts, and their proper construction, with the insistence that the order made by the board of revenue of Monroe county is null and void for failure to follow in all respects the authorities cited.
Hybart Hare, of Monroeville, for appellees.
The trial court properly interpreted the act, and its decree should be affirmed. 154 Ala. 279, 45 So. 897; Ex parte Lusk, 82 Ala. 519, 2 So. 140. The amicus curiæ has gone out of his way to raise question not in the record. 2 C. J. 1323, 1325; 49 N.E. 797.
From the foregoing statement of the case it appears that this appeal involves particularly a construction of section 3 of the Acts (Special Session) of 1920, p. 10. That section reads as follows:
"The said order shall recite the amount of interest-bearing warrants then outstanding which are made payable during the tax year within which the warrants then authorized to be issued are made payable, and the aggregate amount of warrants outstanding at any time and payable during any tax year shall not exceed forty per cent. of the estimated revenues of the county during the tax year the warrants are made payable and shall not exceed forty per cent. of the revenues of the year next preceding the date of issue. Provided this shall not apply to interest-bearing warrants heretofore issued by any county and for which a special fund has already been provided or created."
But two questions are presented here for consideration. The first, whether or not the commissioners' court or board of revenue, in computing the amount of warrants to be issued by the above-cited act, should include the four-mill school fund, as shown in the bill and answer, as a part of the revenues of the county. When it is considered that the purpose of this act is to authorize the county authorities therein named to issue interest-bearing warrants in adjustment of the county indebtedness, we are of the opinion that it was the legislative intent, as disclosed by the language of the act, to have as a basis therefor revenues collected for the county and handled by the county authorities. The school fund above mentioned is not used for county purposes, nor is it handled by officers who are intrusted with the duty of looking after the financial affairs of the county. We think this school fund is therefore not to be considered as a part of the county revenues for the purposes of this act. It appears without dispute, however, that, eliminating from consideration as a basis of calculation these school funds, nevertheless the warrants here involved were authorized to be issued, and were within the limitations of said act, provided the interest-bearing warrants heretofore issued, for which a special fund had been created, are eliminated from consideration.
The second question presented for consideration, therefore, is the one more important here, and this question is fully and clearly treated by the learned trial judge in his opinion, which appears in the record. We fully approve of his treatment of this question, and adopt the same, which is as follows:
"The chief contention of the complaint, however, is with respect to the meaning of the proviso in the latter part of said section 3 of said act. He contends that the sentence reading, 'Provided this shall not apply to interest-bearing warrants heretofore issued by any county and for which a special fund has already been provided as created,' should be interpreted by the court as if it read as follows: 'Provided that the provisions of this section shall not apply to or invalidate interest-bearing warrants heretofore issued by any county and for which a special fund has already been provided or created.' In other words, complainant contends this proviso is a saving to prevent the courts from declaring previously issued interest-bearing warrants of any county invalid where it is shown that the aggregate amount of such warrants exceeded forty per cent. of the revenues of the county.
"It appears to me that such a construction would be plainly foreign to the intent of the Legislature. The act in question was not passed for the benefit of those counties of the state whose finances were in excellent condition, and which counties would naturally have no occasion to retire large and burdensome debts and obligations. It is common knowledge that many counties of the state were, at the time of the passage of the act, heavily involved in debt for the purpose set out in the act, and that such counties were having much difficulty and embarrassment in meeting and discharging these obligations. It is also common knowledge that many of the counties so indebted had issued interest-bearing warrants in large amounts for road work, etc., for the payment of which they had set aside and pledged the special road and bridge tax.
"It is my opinion that, with this situation in mind, the Legislature enacted the law in question in order that counties so situated might obtain early relief in the payment of their past-due unsecured indebtedness; and for that reason excepted such counties from the forty per cent. limitation in cases where the outstanding interest-bearing warrants were amply provided for by a special fund.
"Aside from the foregoing considerations, the construction contended for is not only strained and unnatural, but would necessarily place the court in the attitude of attributing to the Legislature a vain and useless purpose and intent. Certainly the Legislature knew that by the passage of the act it could not invalidate previously issued valid warrants; that no law could be passed impairing the obligations of contracts.
"The connection in which the proviso is used, the situation and condition of the several counties of the state, the manifest purpose of the act, and the plain language used, all militate against the contention of complainant, and force the court to the conclusion that the construction contended for by respondents is correct."
It appearing, therefore, from the undisputed facts that the board of revenue is acting in compliance with the Acts of Special Session of 1920, p. 10, the bill seeking an injunction was properly dismissed, and the decree will accordingly be held affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.