Opinion
No. 33727.
October 27, 1965.
Appeal from the Circuit Court for Leon County, Ben C. Willis, J.
Harry A. Johnston, R. Bruce Jones, Jones, Adams, Paine Foster, West Palm Beach, Ford L. Thompson, Starry Thompson, Tallahassee, for appellants.
Greene, Ayres, Swigert Cluster, Ocala, for Glades County, Hendry County, Okeechobee County and Martin County, appellees.
By Chapter 63-200, Laws of Florida, the 1963 Legislature established new boundaries for Glades, Hendry, Okeechobee, Martin and Palm Beach Counties. Under the statute the area of Lake Okeechobee, which theretofore had been wholly in Palm Beach County, was so divided that each of the other four counties were given a pie-shaped portion thereof.
The appellants sued for declaratory decree contending that: (1) Chapter 63-200 is unconstitutional because the boundary descriptions were deficient, the title thereto was defective and the act contained two subject matters in violation of Section 16, Article III, Florida Constitution, F.S.A.; (2) Section 16, Article IX, Florida Constitution irrevocably allocated the "second gasoline tax" for the full term of fifty years "on the area and road contribution factors existent on adoption thereof;" (3) the distribution of the "seventh cent" of gasoline taxes and the tax on certain motor fuels levied pursuant to Sections 208.44 and 209.02, F.S.A., respectively, should not be affected by the passage of Chapter 63-200.
In his final decree the chancellor held that: (1) Chapter 63-200 was valid; (2) Section 16, Article IX, Florida Constitution, does not irrevocably allocate the second gasoline tax for the full term of fifty years on county areas in effect on its adoption and in no way restricts the power of legislature to change county lines as authorized in Section 3, Article VIII, Florida Constitution; and (3) the distribution of the "seventh cent" of gasoline and other motor fuel taxes would have to be made on basis of new county areas established by Chapter 63-200. The decree provided that the proceeds of the second gasoline tax which were pledged to the payment of certain Palm Beach County road and bridge revenue bonds prior to the enactment of Chapter 63-200 must continue to be allocated and distributed in accordance with the area of Palm Beach County, as it existed prior to adoption of said statute, until all of the obligations of the bonds had been discharged or provision for payment made. The parties agree that this provision is proper. Section 6, Chapter 63-200 contains such a provision. We have held the same. State v. Florida Development Commission, Fla. 1962, 143 So.2d 676.
On this appeal appellants again urge that the subject statute is invalid because the boundary descriptions are too vague and indefinite; that Section 16, Article IX, irrevocably allocates the second gasoline tax for a period of fifty years on the basis of county area and road construction contribution as these factors existed on January 1, 1943 and July 1, 1931, respectively; and that the seventh cent is also irrevocably allocated on the same basis. In addition appellants contend, for the first time, that the statute is invalid because passed by an unconstitutionally apportioned legislature.
We will consider these questions in the order stated above.
A careful reading of Chapter 63-200 and a plotting of the county boundaries described therein is necessary for a full understanding of the defects complained of by the appellants. The chancellor discussed the variances at length. Nothing can be gained by repeating or summarizing either those portions of his decree or the testimony of experts as to the descriptions and the difficulty attendant on their use.
The chancellor correctly found the legislative intent to be to divide the area of Lake Okeechobee, previously entirely within Palm Beach County, among all counties bordering the lake. He further found that to accomplish this division the legislature intended to define a common point near the center of the lake "and to this point extend a line from the several points along the shore of Lake Okeechobee where the prior existing boundaries of the several counties reach such shore. This would produce within each county a `wedge' of the lake, spreading from the common point to the upland of each county bordering the lake."
As appears from a reading of the statute the common point selected is the NE Corner of Section 36, Township 40 South, Range 34 East. Since the lake area has never been surveyed, this is a fictional point. In actuality there is no such Section 36. However, as the chancellor stated, the description of Palm Beach County in Section 5, Chapter 63-200,
"reveals an unambiguous meaning of the term `northeast corner of Section 36, Township 40 S, 34 E.' This is so because it is clear that the point so described is to be found at the intersection of two perpendicular lines, namely, one located by commencing at the point on the shore of Lake Okeechobee where the line dividing Range 34 E from Range 35 E and being the prior boundary between Palm Beach and Hendry Counties, and thence proceeding in a straight line due or true north and the other line which is located by proceeding due or true west from the point on the margin of Lake Okeechobee where the prior boundary between Martin and Palm Beach Counties reach said water's edge. Within the language of Section 5 there are references to actual established section and township lines whose extension true north in one case and true west in the other to the point of intersection would serve to establish the precise point the Legislature intended to constitute the northwest corner of Palm Beach County and define that county's portion of Lake Okeechobee. As the boundaries of all of the other counties refer to the same point, it is obvious that the legislature intended that point, to be established as aforesaid, to constitute the one definite common point in the boundaries of each of the counties."
The chancellor's answer to appellant's contention on this point is correct. The descriptions contained in the statute might not be adequate in a conveyance or contract involving property rights or transfers of land. But boundary descriptions in legislative acts establishing county lines are not required to be drawn with the same exactness and nicety.
The rule applicable in cases such as this is well stated in State ex rel. Cheyney v. Sammons, 1911, 62 Fla. 303, 57 So. 196. There, this court, 57 So. at page 200, said:
"A defect in the description of the territory included in the new county does not render the act unconstitutional or invalid. The act is not void unless the legislative intent cannot be effectuated, because the description is so defective as not to include substantially all of the intended territory, or because the defective description will include or exclude territory not intended, so as to make it appear that the act would not have been passed if the defective description had been known, or because it is so entirely defective as to be unintelligible or to render the act unenforceable in its essential features."
The statute, as interpreted and construed by the chancellor meets the test of this rule. The chancellor correctly held it not to be invalid because of defective description.
We come next to appellants' contention that Section 16, Article IX, adopted in 1942, and effective January 1, 1943, irrevocably allocates the proceeds of the second gasoline tax on the basis of county areas as they existed on the effective date of the amendment, i.e., January 1, 1943.
Section 16, Article IX, provides that for fifty years beginning January 1, 1943 the proceeds of two cents (2¢ per gallon of the gasoline tax (the Second Gas Tax) and the tax on other fuels shall be divided into three equal parts and distributed monthly to the several counties as follows:
"* * * one part according to area, one part according to population, and one part according to the counties' contributions to the cost of State road construction in the ratio of distribution as provided in Chapter 15659, Laws of Florida, Acts of 1931 * * *."
Chapter 15659, supra, now appearing in part as F.S. Section 208.11, F.S.A., prescribes the method of determining the contributions of the counties to the cost of state road construction, and requires that it be done within 90 days of the effective date thereof. The effect of this statute and Section 16, Article IX is to fix irrevocably the factor by which one third of the second gas tax is to be distributed. Thus, during the entire fifty year period one third of the second gas tax will be distributed on a basis of the counties' contributions to state road construction prior to July 1, 1931 as determined by the certificates filed with the state comptroller in 1931 pursuant to Chapter 15659. The distribution of this third of the second gas tax is not in dispute here.
Appellants do not contend that the one third of the second gas tax distributable on the basis of county population is fixed by the population of the several counties as of January 1, 1943. They argue only that the one third of the tax distributable according to county area was fixed as of January 1, 1943 and that a subsequent change in county boundaries and area cannot affect any county's share of the tax.
The chancellor held that appellants' contention was without merit. We concur.
Appellants argue first that there have been numerous changes in county boundaries since the adoption of Section 16, Article IX, but that the state comptroller has never recognized such changes in computing the distribution of the one third of the tax allocated on a basis of area. They seek to convert this alleged action by the comptroller into an administrative construction which they say should not be disturbed unless it be unreasonable or erroneous. State ex rel. Franklin County et al., v. Lee, Fla. 1939, 137 Fla. 658, 188 So. 775. But, as the chancellor noted in his decree, it has not been shown that any such changes were substantial and we add that it does not appear that the effect of any such changes has ever been presented to or decided by the courts of this state.
Appellants cite State ex rel. Franklin County v. Lee, supra, and State v. Florida Development Commission, Fla. 1962, 143 So.2d 676, in support of their position. These cases are not relevant to the issue before us. The decision in the Franklin County case merely upheld the comptroller's construction that, for the purposes relevant here, county area did not include the waters of the Gulf of Mexico lying within the boundaries of certain Gulf Coast counties. No change of county boundaries was involved. In State v. Florida Development Commission, supra, this court held that the legislature could change county boundaries, but that insofar as pre-existing funded obligations were concerned, the change in area would not, to the extent necessary to service such funded debts, affect the allocation of the one third of the tax based on county area.
The closest that we have come to dealing with the question now before us was in Glades County v. Green, Fla. 1963, 154 So.2d 320. In that case this court recited that the petitioner therein contended, as do the appellees here, that the computation of the funds due each county under the constitutional formula "was not a computation to be made once and for all in 1931, except as to the factor of the county's aggregate contribution to state roads up to and including the year 1931, but * * * is to be made anew at the end of each month * * * for the period of fifty years * * *." Then after copying pertinent portions of the subject constitutional provision and statutes this court obviously agreed with the views of petitioners therein, for we said at 154 So.2d, page 324:
"After examination of these provisions of the law, it seems clear that the distribution of the gas tax funds is in the hands of the comptroller and that such distribution be done monthly."
This statement is not as explicit as it might be. Rather than rely upon it as dispositive of the point we will again examine the question.
Neither the subject constitutional provision nor the statute furnishes any support for appellants' view, but rather dictates a contrary result. These documents require that the tax monies involved will be divided into three equal parts and distributed monthly among the counties on the factors named. Then it is specifically provided that the allocation based on the contribution to cost of state road construction as computed in Chapter 15659, supra, "shall be taken and deemed conclusive in computing the monthly amounts distributable according to said contributions." There is no basis for extending this specific instruction also to apply to the computation of the amounts distributable according to population or area. The intent of the provisions is clear and unambiguous. But if construction be required we think the maxim "expressio unius est exclusio alterius" would result in the same conclusion even though its application here might be somewhat inverse.
We understand the subject constitutional and statutory provision to mean simply that the monies due the several counties shall be computed and distributed monthly on a basis of the factors as they exist each month, except that the computation made in 1931, pursuant to Chapter 15659, supra, shall control the amount allocable on the basis of prior contributions to the cost of state road construction.
This means that population or area changes will be reflected in the monthly computations. This, in effect, is what we held in Glades County v. Green, supra.
Logic, reason and the obvious purpose of the distribution to the counties of the second gas tax all support the conclusion that the computation of those portions of the tax allocable on population and county area were not irrevocably fixed as of January 1, 1943.
The purpose of the constitutional amendment and statute was to assist the counties in paying off existing funded debts for road construction and to furnish a stable source of revenue to assist in constructing new facilities, which revenues if need be could be anticipated to secure new revenue issues. Since the authorizing and implementing laws did not direct the distribution of the monies equally to all counties or solely on a basis of factors as they existed in either 1931 or 1943, the people and the legislature must have intended that the formula prescribed would result in distribution of two of the three portions of the tax portions of the tax monies on a basis that would have some continuing relationship to the need of the various counties for roads and funds to construct them. Population and area of a county both have a reasonable relationship to the need for road facilities in the county, and therefore to monies needed for construction of roads. As either factor changes, the need for roads and construction funds will change accordingly, although admittedly not in direct proportion.
The appellants apparently admit that the distribution of the share allocated on population should change with corresponding changes in population. We see no basis for distinguishing between population and area, if need for roads and funds is the answer which the formula is to produce. Certainly, if county area is a logical factor by which to determine need for roads and to allocate funds, for this purpose, the area of the several counties as they actually exist must be used as the basis of the allocation. Otherwise the relationship between need and the monies distributed ceases to be reasonable. An increase in area of one county will reasonably increase the need for roads and monies for the construction and maintenance thereof, while decreasing the needs of the county losing the area. For example, if instead of dividing lake area, Chapter 63-200 had awarded the other counties a substantial portion of the land area of Palm Beach County with existing roads and others badly needed, it would be obviously unreasonable and inequitable to continue to give to Palm Beach County the same proportion of the share of the tax allocable on county area. The fact that in the instant case we are dealing with water area and that it is not likely that roads or bridges will be constructed thereon is of no consequence for, in application of the formula, the area of land-locked lakes and streams within a county is considered in computing the county area. If it were not this litigation would not be before us.
We therefore conclude that the allocation and distribution of second gas tax monies on the factor of county area, as well as that based on population, was not irrevocably fixed, but must be allocated and distributed on the basis of county area and population as they exist from month to month. This statement is subject to the rule that any change in county area shall not affect the allocation and distribution of such monies to the extent necessary to preserve the security for and payment of any pre-existing funded debt. State v. Florida Development Commission, Fla. 1962, 143 So.2d 676.
Appellants' contention that the portion of the seventh cent of the gasoline tax allocable on basis of county area is also irrevocably fixed by county area as it existed in 1943 is also without merit. Section 208.44(3), F.S.A., requires that the net proceeds of this tax be distributed to the several counties on the same basis as the second gas tax is distributed under Section 16, Article IX. Our answer to appellants' second question therefore also controls the basis on which this tax money will be distributed so long as the statute remains unchanged. However there is a more obvious answer to appellants' contention. This tax is purely statutory. At its will, the legislature may abolish the tax or alter the manner of distribution. There is nothing irrevocable about either its levy or distribution.
For their fourth and fifth questions appellants say that Chapter 63-200 is invalid, first, because passed by an unconstitutionally apportioned legislature, citing Swann v. Adams, 378 U.S. 553, 84 S.Ct. 1904, 12 L.Ed.2d 1033, and second, because it is in violation of Section 1, Declaration of Rights, Florida Constitution, in that "through indirect curtailment of their rights as voters the appellants and those they represent have been denied equal protection of the law."
Appellees moved to strike these questions from appellants' brief on the ground that they were not presented to the trial court but are raised for the first time in this court. We have previously held that a fundamental error, based on the unconstitutionality of a statute, may be raised for the first time on appeal to this court. Town of Monticello v. Finlayson, 1945, 156 Fla. 568, 23 So.2d 843. So we will consider the questions.
As authority for their position appellants cite only Swann v. Adams, supra. Our understanding of that memorandum decision, and the cases cited therein, is that the Florida Legislature was not apportioned and constituted in compliance with the United States Supreme Court's views as explained in those cases. Neither those decisions nor any others known to us have yet held legislative acts to be unconstitutional because the legislature adopting them was later found to be unconstitutionally apportioned. Apportionment statutes which have been struck down have been found invalid not because the legislature adopting the act was unconstitutionally apportioned, but because the plan encompassed in the statute was not a proper one.
To hold as appellants urge would go far beyond what the federal courts have decreed, and require us to hold retroactively that the acts of a malapportioned legislature are ipso facto unconstitutional. Neither precedent nor reason support such a holding.
We, therefore, reject appellants' fourth and fifth questions.
The final decree of the chancellor is affirmed.
THORNAL, C.J., and THOMAS, DREW, CALDWELL and BARNS (Ret.), JJ., concur.
ERVIN, J., dissents with opinion.
In this appeal it appears Chapter 63-200 established new boundaries for Glades, Hendry, Okeechobee, Martin and Palm Beach Counties. The effect was to reduce the area of Palm Beach County in Lake Okeechobee by giving portions of said area to the other four counties.
Appellants attacked the constitutionality of Chapter 63-200 and additionally challenged the effect it had upon the distribution of the proceeds of the Second Gas Tax as prescribed in Section 16, Article IX of the State Constitution, and the distribution of the 7th cent gas tax as prescribed by F.S. § 208.44, F.S.A., among Palm Beach County and the other four counties.
The Circuit Court upheld Chapter 63-200 and in addition held that as among the five counties their distributive shares of said gas taxes, insofar as said taxes are prorated on the basis of area of counties, would be modified to accord with the area increase or decrease of said counties.
It appears to me the monthly proration of a one-third part of the proceeds of the two cents per gallon Second Gas Tax among the counties of the state according to their respective geographical areas as such areas existed in 1942 unless modified by constitutional amendment is irrevocably fixed by the provisions of the fifty-year constitutional amendment (SJR 824, 1941, ratified in 1942, Sec. 16, Art. IX, State Const.). Similarly immutably cast is the proration of the one-third part of said tax on the basis of the then existing counties' contributions to the cost of state roads made prior to July 1, 1931 (Ch. 15659, Acts of 1931). Similarly also, the remaining one-third part of this tax is prorated according to the population in said geographical areas of said counties as ascertained by each succeeding decennial census.
While the Constitution authorizes the Legislature to establish new counties and change county lines (Sec. 3, Art. VIII), this pre-existing authority does not authorize the Legislature by county territorial alterations to thereby indirectly modify the proration formula of the two-cent Second Gas Tax later prescribed in 1942 by Section 16, Article IX.
The Legislature and electorate, respectively, submitted and ratified the Second Gas Tax amendment in contemplation of conditions then existing. Each county as it then existed had a particular geographical area, had its previous contribution to the state road system and its road bond indebtedness, and its future needs were envisioned for public highway construction and maintenance within its existing county territorial area. These elements were contemplated and evaluated in the distribution formula.
The Circuit Court ruled that so much of a county's distributive shares of the Second Gas Tax which are required by Section 16 of Article IX of the State Constitution to service its road bond indebtedness (and presumably its later surplus commitments for bridge and highway lease-purchases) could not be reduced or withdrawn as a result of county boundary changes. But the Circuit Court did not go far enough. In addition to the foregoing necessity, the constitutional provision adopted in 1942 which became Section 16 of Article IX provides in behalf of the geographical area of each of the sixty-seven counties that the State Board of Administration shall have the power from time to time to issue refunding bonds for each unit's road bond indebtedness to mature within the fifty-year life of the provision "* * * and * * * secure them by a pledge of anticipated receipts [emphasis supplied] from such gasoline or other fuel taxes to be distributed to such county as herein provided" [emphasis supplied]. This language referring to "such county" indicates that the distributive shares of the Second Gas Tax prorated according to existing county areas in 1942 are irrevocably pledged to such areas for the fifty-year period for refunding purposes and the same can be anticipated according to the formula without withdrawal or reduction during said period. This view is substantiated by the following sentence in the last paragraph of the amendment:
"The Legislature shall continue the levies of said taxes during the life of this Amendment, and shall not enact any law having the effect of withdrawing the proceeds of said two (2¢) cents of said taxes from the operation of this amendment." (Emphasis supplied.)
The Circuit Court was unable to hold the distributive share of any of the sixty-seven counties based on the factor of the counties' contribution to costs to road construction prior to July 1, 1931, could be changed during the life of the constitutional provision. This restricts the distribution of this share to the areas of the sixty-seven counties regardless of subsequent county boundary changes. If this is so, and logically it must be so because it is a factor that relates to elements in esse at a particular time (July 1, 1931) which are not subject to alteration unless the constitutional provision itself is changed, equally so is the irrevocability during the fifty-year period of the factor of the proration based upon the geographical areas of the several counties, respectively, in 1942. If the Legislature is at liberty by county abolishment or realignment of county boundaries to change the operation of this factor, then all manner of departures by county alterations from the original plan will be possible. The Circuit Court overlooked the three distributive factors, viz., county area, contribution and population are cognate and interlocked. They have historical impact upon and identification with particular localities and areas, each of which has special needs including road and bridge programs and indebtedness. If one factor cannot be varied during the life of the constitutional provision, and it is conceded the factor based on the counties' contribution prior to July 1, 1931, to the cost of constructing the state road system is beyond statutory variation and is necessarily irrevocably tied in with the identity and original area of the sixty-seven counties, then it follows that distributive shares based on original county identity or area may not be varied without doing violence to the scheme of Section 16 of Article IX as a whole.
Reflection indicates the problems that will arise from statutorily changing either of the two factors of distribution based on county area and a county's prior contribution to the road system. If a county's territory is altered, immediately the question arises as to how its share based on its contribution is to be prorated, and even greater would be the problem if the county is entirely abolished and its territory annexed to other counties. In the particular context of this case, where water area of Lake Okeechobee is divided for county territorial purposes, the problem appears relatively simple because there are no roads in the water area but in following the precedent prescribed by the Circuit Court it will become exceedingly complex if an abolished county's particular land area is divided among existing counties. The only realistic solution is to maintain the status quo originally commenced under Section 16 of Article IX, unless and until a complete revision of it by constitutional amendment eventuates.
In practical operation a county may be abolished or its boundaries may be changed, but this should not affect the proration of the Second Gas Tax. If some of the existing sixty-seven counties are abolished or, if not abolished their boundaries are changed, it will be necessary for the continued operation of Section 16 of Article IX that the territories of the sixty-seven counties as they existed in 1942 in effect to be superimposed upon the map of Florida and the distribution continued as now provided. As population figures change in such former county areas (it will be necessary to ascertain with each succeeding decennial census the population figures for the old county territories) they should be used to make the distribution on the basis of population.
The State Board of Administration would first use the distributive shares appertaining to said areas to service or refund the old county road and bridge bonds to which such shares are guaranteed. The surplus over, if any, would be distributed: 80% to the State Road Department for state road construction or bridge and highway lease-purchases within the superimposed old county area, and 20% to the board or boards of county commissioners having jurisdiction of the superimposed territory of the old county area to which the 20% surplus of the Second Gas Tax was guaranteed over the fifty-year period for the construction and maintenance of roads and bridges therein. In case of any dispute in this respect it would be within the authority of the State Board of Administration to remit the 20% in accordance with equitable principles to carry out the original intent of Section 16, Article IX, that is to say, so the same would be used for road needs, if any, within the superimposed territory.
To recapitulate, it is my view that the operation of Section 16 of Article IX of the State Constitution and the proration of shares of the Second Gas Tax continues in accordance with the geographical areas of the sixty-seven counties as they existed in 1942 when Section 16 was ratified, despite subsequent county boundary alterations. Not only is the maintenance of the original identity of the sixty-seven counties required in order not to impair the debt service of the road bond indebtedness of each of the original counties and any necessary refundings thereof by the State Board of Administration, but also to insure that subsequent pledges of such a county's surplus Second Gas Tax funds for the lease-purchase of highways or bridges within such county shall not be impaired, and, lastly, to guarantee that from the county accounts established originally to receive the distributive shares of the Second Gas Tax allocable to the original county units under the formula each county area shall receive the benefit of any "surplus" after debt service requirements are met, to be used on the 80%-20% basis for road and bridge purposes within such territorial area as the same existed in 1942.
Under the decision of the Circuit Court, Palm Beach County as it territorially existed prior to the alteration of its boundaries will suffer a reduction of its allocation of the Second Gas Tax based on the factor of county area. The other four counties will receive portions of the amounts representing such reduction. In my judgment, this is contrary to the provisions of Section 16 of Article IX, State Constitution. Said section has reference to the original sixty-seven counties, including Palm Beach County, as they territorially existed in 1942. Subsequent county boundary changes were not intended to impair the road bond obligations of the old counties as they existed in 1942, nor was any surplus remaining after debt service to be used elsewhere for road purposes save in the original county territorial areas. Logically, there can be no "surplus" except that which remains of the distributive shares of a county's allocation after its road bond indebtedness has been provided for. The two, that is to say, debt service and surplus over, go hand in hand for the use and benefit of the original county area. Any diversion by use of the surplus in another county is a departure from the scheme of Section 16, Article IX. But that is what will follow if amounts representing the reduction of Palm Beach County's Second Gas Tax allocation based on area are distributed as directed by the Circuit Court. The State Road Department and the county commissioners of the other four counties will use a portion of the surplus that was heretofore used for road purposes in original Palm Beach County for road purposes in the four other counties.
It appears to me that this Court, speaking through Mr. Justice Drew in State v. Florida Development Commission, 143 So.2d 676, 680, foreshadowed a contrary view to that expressed by the Circuit Court when it said:
"* * * The `several counties' contemplated must be either the units existing at the time of the constitutional levy or such counties as may by acquisition of their geographical area in part or in whole become entitled to whatever share would be attributable to that portion of the original county unit, subject to prior obligation of those funds. In the practical problem of allocating the funds due a county when its boundaries have been altered there are presented only the factual issues of population and area contained within any constituent part, and the determination of the share of the original county road contributions attributable to that part on the basis of its area and population. Thus a pledge of funds to accrue to a named county is precisely the equivalent of a pledge of funds accruing to that county area, and the power of anticipating such funds necessarily implies the authority to pledge funds which may accrue to the geographical area then within a county's boundaries, whatever names or county governing body may in the future be attached to such area. (Emphasis supplied.)
"This result fully accords with the history and purpose of this section of the constitution, previously detailed in opinions of this Court, and with our obligation under basic principles of constitutional construction requiring effect to be given to both of the cited sections so as to preserve the power of the legislature in the field of county boundaries while superimposing thereon the restraints inherent in the subsequent enactment of the provision controlling the gas tax levy. A contrary construction of the constitutional formula would permit the legislature to do indirectly that which Section 16 prohibits being done directly, by its very terms and nature as a part of the organic law. Legislative alteration of county boundaries might thus require distribution of these funds to county entities on the basis of total area within their boundaries at the time of distribution without regard to prior anticipation of such funds accruing to any part of the constituent area. Such conclusion would permit legislative manipulation of the revenue distribution and prevent effective local control; at the very least it would preclude anticipation of these proceeds on any sound basis, often conceded to be the only practical means for realization of a long-range road program of magnitude or uniformity over the state." (Emphasis supplied.)
It is particularly noted the Court states a pledge of funds to accrue to a named county is precisely the equivalent of a pledge of funds accruing to that county area, irrespective of whatever names or county governing body may in the future be attached to such area. The Court did not restrict this language to pledges of bond funds. It is speaking of allocation of state funds to a county's area. Most apt to the particular problem in the instant case, the Court in State v. Florida Development Commission, supra, closed its opinion by warning that county boundary changes might unconstitutionally,
"* * * permit legislative manipulation of the revenue distribution and prevent effective local control; at the very least it would preclude anticipation of these proceeds on any sound basis, often conceded to be the only practical means for realization of a long-range road program of magnitude or uniformity over the state."
I think the Court must have had in mind the manipulation of the "surplus" funds which were dedicated by Section 16, Article IX to the particular territories of the original sixty-seven counties for orderly long-range road programs therein mainly under State Road Department supervision. Certainly we have here a clear case of a partial diversion of "surplus" funds from their use in the original county territory to use in the territory of the four other counties by means of boundary alteration.
The foregoing principles governing the distribution of the Second Gas Tax as provided by Section 16 of Article IX do not apply insofar as the proration among the counties of the 7th cent gas tax as prescribed by F.S. § 208.44, F.S.A., is concerned. While it is true the same proration factors are used, there are distinguishing characteristics which do not place the statutory distribution of the proceeds of the 7th cent gas tax in the same irrevocable category as the constitutional distribution of the Second Gas Tax. This is so because the use of the 7th cent gas tax is not tied in with the service and refunding of road bonds of particular counties, nor is its use for road programs identified with particular territorial areas of the state for a period of fifty years. The 7th cent gas tax and its distribution may be repealed at any regular session by the Legislature, whereas the Second Gas Tax and its distribution cannot be withdrawn by statute directly or indirectly during the fifty-year period. There is nothing manifest in the legislative intent of the statute imposing the 7th cent gas tax and its distribution which identifies it immutably with particular county territories in point of time or area. The ratio of distribution of part of the 7th cent gas tax proceeds according to county areas is subject to any legislative changes of such areas by county abolishment or realignment of county boundaries since there is nothing in the nature or use of these proceeds' distributive shares which is constitutionally restricted. Absent constitutional restriction in point of use, purpose or time, the statutory intent does not preclude change of county boundaries affecting the proration of the 7th gas tax proceeds among the counties on an area basis. Being purely statutory, subject to any repeal or modification, the 7th cent gas tax distribution is outside the principles applying to the distribution of the Second Gas Tax under Section 16 of Article IX of the State Constitution.
I find no merit in other contentions urged by Appellants. The legislative change in the boundaries of the counties involved appears to be valid. I agree with the Circuit Court the changed boundary lines are susceptible of establishment by engineering surveys in the light of applicable decisions clarifying ostensibly uncertain boundary lines.