Williams v. Board of Revenue , 123 Ala. 432 ( 1898 )

HARALSON, J.

The act adopted by the last legislature, the constitutionality of which is assailed, is entitled,' “An act, to regulate the ivorking ¡and keeping in repair the public roads in Butler county; to authorize the issuance of bonds for such purposes; create a road fund for said county, and create the office of public road supervisor, and prescribe his duties and powers, and provide for the working of convicts on the public roads.”

" The- act itself, containing 17 sections, is original and independent, and provides at length and with much detail for the execution of its provisions by the board of revenue of the county. The different members of this board are the parties defendant.

Its first section provides, “That the board of revenue of said county, is hereby authorized and empowered to issue bonds of said county to the amount of $100,000, the proceeds of which shall be applied exclusively to the construction and building macadamized, turn-pike, gravel or chert roads, and for the repairing and improving of the public roads of said county,” etc.

The bill, questioning the constitutionality of the act, on several grounds, sought an.injunction restraining the defendants from executing or attempting to execute it in said county, and a preliminary injunction to that end was granted. The defendants demurred to the bill, and moved to dismiss it for want of equity. The demurrer was sustained, and. the motion to dismiss for want of equity was granted, and the bill ivas dismissed unless amended'in thirty days. From these rulings the appeal is prosecuted.

•We allow the appellants to state, as they do in their brief, the alleged grounds of constitutional infirmity in said act: “1st. That section one (1) of the act, which authorizes the issuance of said bonds is violative of Art. IV, section 2 (of the constitution) in that the provisions of said section of said act are not clearly expressed m the title to the act; that the subject contained in said section is the grant of authority to the board of revenue of Butler county to issue bonds in the sum of $100,000, ‘the proceeds of which shall be applied exclusively to the construction and building macadamized, turn-pike, gravel or chert roads and for the repairing and improving of the public roads in said county,’ while the title only expresses the subject of the issuance of said bonds in this language: ‘To regulate the working and keeping in repair the public roads of Butler county, to authorize the issuance of bonds for such purposes,’ etc. 2d. That the title to the act expresses more than one subject, and those subjects are contained in the act, and the whole act is void, the same being for that reason violative of Art. IV, section 2 of the Constitution. ■ 3d. That the legislature undertook to grant to the board of revenue legislative authority, when (by section 17 of the act) it lodged the sole discretion with the board of revenue to submit, to the legal voters of the county, ‘whether or not they shall put this act into operation;’ that it was beyond the power of the legislature to indirectly grant to such board the power or authority to determine whether such an act should ever be put in operation; and that such grant or delegation of such legislative authority to the board of revenue, invalidates the whole act.”

1. The first and second of these objections may be considered together. The alleged unconstitutionality of the act lies in the suggestion that the words in the title,— “working and keeping in repair the public roads” of said county, do not cover the provision of its first section .for the “construction and building macadamized, turn-pike, gravel or chert roads;” that in this respect, the act is larger as to its provisions and subjects than its title, or, that the title covers, in this respect, one subject, and tbe act .two. We apprehend, lioAvever, this is a strained construction, such as will not be indulged to declare the act unconstitutional. There is nothing in the act to indicate that the-purpose Avas to do aAvay with the existing public dirt roads, and to lay out and construct others in their places OArer other and different routes, but its purpose would seem to have been to convert the present dirt roads into macadamized, turn-pike, gravel or chert roads: We judicially know that the public roads of Butler county are what is known as the common dirt roads of the country. If one of these roads Avere taken under this act, and coArered with macadam, or the materials out of Avhicli a turn-pike road is built, or with chert or gravel, we would say that a macadamized, turn-pike, chert or gravel road, as the case might be, had been constructed or built, and at the same time a' public road had been worked or repaired, all coming legitimately within the subject of the title of this act. The words, “working and keeping in repair,” as employed in the caption, designates but one subject, and are general enough to embrace, and do include the' construction and building certain designated roads as provided for in the; act. The only difference is, that the one subject as it appears in the title and the body of the act, appears in the latter in extended detail, referable and cognate, however, to the general subject found in the title. We recall that in a recent case construing an act to establish a board of revenue for Lowndes county, it Avas held, that the act was not invalid for the reason- that, in fact, it provided for the reconstruction and reformation of the board of revenue then existing 'in the county.—The State v. Rogers, 107 Ala. 444. In that case it was contended that the Word, establish, meant to found, to set up-anew,’and not to reconstruct another' out of' an old board: Here, with as little merit, the contention is, that the construction and building of the roads provided for, are unauthorized because, not included in a caption for working and keeping roads in repair, notwithstanding such construction and building cannot be accomplished without working and repairing the roads.—The State v. Street, 117 Ala. 203.

2. We need not pass upon the validity of that part of the act included in its 17th section. It is not averred in the bill that the board of revenue has submitted the question of the working and repairing of the public roads as provided in the act, to the voters of the county. This section merely invests the board with the discretion to submit the question as to whether or not they shall put this act into operation, to the legal voters of the county. Authority had been already conferred in the act on the board of revenue to put the provisions of the act in operation. Not by Avay of impairing and taking away this authority, this discretion Avas conferred on them in case they thought it Avell to exercise it. But, if for any reason this section were held to be invalid, it could not vitiate the other parts of the enactment Avhj cb are free from any vitiating infirmities. Such legislation as was attempted in this section, we may add, is. not new in this State. McGraw v. County Commissioners, 89 Ala. 407; Dunn v. Court of County Revenue, 85 Ala. 144; Stanfill v. Court County Revenue, 80 Ala. 287; Askew v. Hale County, 54 Ala. 639.

.3. The act is assailed again for that the board of revenue is authorized and empowered to work on the public roads all persons sentenced to hard labor for the county for crime, and all persons sentenced to the peni.tentiary by the courts of Butler county for a term not exceeding five years. This provision Avas Avell within the title of the act. The legislature, having plenary poAver over convict labor, it cannot be denied, had the power to pass this provision in favor of the county, and we have not been led to discover any valid objection to this provision in favor of the county.—Ex parte Mayor & Aldermen of Birmingham, 116 Ala. 186.

4. It is said again, that the bill should not have been dismissed for want of equity because of the'allegations of its 4th section. The board by the- terms of the act are to sell the bonds at the highest price they can obtain therefor, not- less than their face value. They are not .required to sell them to the highest bidder. The allegation that they Avere not let to the highest bidder, is not the equivalent of an averment that the board have not obtained the highest price they could for them. The alleged agreement that no interest was to be paid by Baldwin to the county until tlie bonds were delivered or money paid, shows no breach of duty. No fraud is alleged, and in the averments as made, no mismanagement even appears. The equity of the bill, if this Avere all to support it, rests on averments wanting in sufficiency to sustain it.

The decree of the court niust.be affirmed.

Affirmed.