Lewis v. Leon County , 91 Fla. 118 ( 1926 )

The legislature is inhibited by Section 5 of Article IX from authorizing counties to assess and impose taxes for any purpose other than a county purpose.

A county is a political division of the State. Section 1, Article VIII, Constitution.

The power to assess and impose taxes is a State power and may be exercised only by the sovereign power except where that power is under the constitution authorized to be delegated to State agencies for certain purposes. The power to tax is inherent in the State. It is not granted by the constitution, but of necessity undertakes it because government could not exist or perform its functions without it. It exists as a necessary attribute of sovereignty. 26 Rawle C. L. 26. Constitutional provisions therefore relating to the power constitute limitations upon the power which would otherwise be without limit. See M'Cullough v. State of Maryland, 4 Wheat. (U.S.) 316, text 428, 4 L. Ed. 579, text 607; Nathan v. State of Louisiana, 8 How. (U.S.) 73, text 82, 12 L. Ed. 992, text 996; Lane County v. State of Oregon, 7 Wall. (U.S.) 71, text 76,19 L. Ed. 101, text 104; Wheeling, Parkersburg Cincinnati Transp. Co. v. City of Wheeling, 99 U.S. 273, text 281, 25 L. Ed. 412, text 415; United States v. Snyder, 149 U.S. 210, text 214,37 L. Ed. 705, text 707, 13 Sup. Ct. Rep. 846.

The power of deciding what money shall be raised by taxation, what property or privileges or occupations shall be taxed, rests exclusively in the legislature without any limitations except such as are imposed by express constitutional provisions. 26 Rawle C. L. 27.

The power of a county to assess and impose taxes is derived from legislative authority, but that authority is restricted by the constitution to county purposes and prohibited from being extended to any other purpose. Sec. 5, Art. IX Const.

A county organization consists of a Board of County Commissioners; a Clerk of the Circuit Court; a Sheriff; Constables; a County Assessor of Taxes and Assistants; a Tax Collector; a Superintendent of Public Instruction; a County Surveyor; a County Judge; Justices of the Peace, and such other officers as may be provided by law. The powers and duties of such officers are prescribed by statute except those of the judicial officers which in the main are prescribed by the constitution.

The county officers are agencies through which the State operates to perform many of its functions in the execution of the law. But the maintenance of the organization is considered a county obligation in greater part.

The constitution imposes no duties upon counties as such except in the matter of providing for those inhabitants who by reason of age, infirmity or misfortune have claims upon the aid and sympathy of society and in the matter of the support of public free schools; but the duties of officers of counties and their compensation except where the constitution makes such provisions are provided for by legislative enactment.

The duty of providing for the expenses which are legitimately incurred within the powers or duties of those who have some official or representative relation to the county is a county burden or obligation and is met by a tax assessed or imposed upon property in the county or upon occupations carried on therein. Upon this principle the construction and maintenance of certain public buildings is a county obligation for which the Legislature may authorize the counties to assess and impose taxes to discharge.

The establishment and maintenance of a system of public free schools is a State function in the discharge of which the constitution requires counties as such to aid. Sec. 8, Article XII Const.

The prosecution of persons charged with crime is a State function, but the constitution provides in some measure for the counties defraying part of the expenses incurred in such work. The salaries of certain Circuit Judges are paid in some instances by counties, but only under authority of a constitutional provision.

The building of roads and bridges and the maintenance of the same is a function or duty of the State. See Keggin v. Hillsborough County, 71 Fla. 356, 71 South. Rep. 372.

The constitution contains no provision directly charging nor authorizing the legislature to charge the counties with the construction and maintenance of roads and bridges. But counties are created to aid in the administration of government. They are local, legal subdivisions of the State and are agencies or arms of the State created, organized and existing for civil and political purposes, particularly for the purpose of administering locally the general powers and policies of the State. 15 C. J. 388.

Under a system long established in this State and unquestioned, the State function of building roads and bridges and the maintenance of the same in the different counties was delegated to the counties respectively. Under that system the construction and maintenance of public roads were purely local functions, completely under county control and subject to county discretion as to location, change, abandonment, width and grade. See Section 1588 Revised General Statutes, 1920. No public road could be established, changed or discontinued except on application to the county commissioners by petition signed by citizen free-holders living in the vicinity of the road sought to be changed or established. See Chapter 4338, Acts of 1895, and amendments thereto of 1903-1905; Chap. 4769, Acts of 1899. In 1913 there was a revision of the subject, but the boards of county commissioners continued under that act with some modifications to exercise complete control over the establishing, building and maintenance of public roads. Chap. 6537 Laws of 1913.

This system continued until 1915, when a State Road Department was created, but the purpose of that act seemed to be to provide county commissioners with information as to the best methods and materials to be used in road construction and to expend whatever funds the Congress of the United States might appropriate for road construction in Florida. Memorials to Congress had at other sessions and the session of 1915 been adopted requiring the Florida Senators and Representatives in Congress to use their influence to get such an appropriation. See Chapter 6883, Laws of 1915.

Under the system existing in this State to 1916 the building of roads and bridges was considered to be a county purpose. It was said that while such activity was a State function or duty the delegation of the performance of that duty to the officers of the political divisions constituted it a county purpose. Under the system which had existed since the organization of the State without objection or protest, road construction and maintenance became one of the purposes of county organization. Keggin v. Hillsborough County, supra.

In the case of Jordan v. Duval County, 68 Fla. 48,66 South. Rep. 298, this court speaking through Mr. Justice WHITFIELD, said: "The term 'county purposes' is not defined or amplified in the organic law. This being so the legislative power in exercising its appropriate lawmaking functions, may determine what is a county purpose and the courts are not authorized to render such determination ineffectual unless some provision of the constitution is violated or unless the particular enactment can have no legal or practical relation whatever to any county purpose."

In the case of Cotten v. County Commissioners of Leon County,6 Fla. 610, this court said that neither locality of the proposed work nor benefits to the county taken by itself affords a safe criterion or correct rule for determining whether a particular proposition is or is not a county purpose, but as a general rule it required a concurrence of both. It was also observed that it would be as improbable as it was dangerous to attempt to prescribe any definite rule to be looked to as furnishing any correct test on the subject. See Stockton v. Powell, 29 Fla. 1, 10 South. Rep. 688.

In the above named case the proposition was to improve the navigation of the St. John's River in Duval County and to remove obstructions therefrom. An Act of the legislature authorized Duval county to issue bonds for that purpose. The court held the proposed work to be a county purpose and refused to restrain the issuing of the bonds. In reaching that conclusion the court held the St. John's river to be a highway; that whether the commerce and business on the river local to the county is small or of no importance in "our judgment" does not affect the power of the legislature to authorize the improvement, and quoting from Cotten v. County Commissioners,supra, said we must look to contemporaneous legislation on the subject and "that by making this reference it will be abundantly demonstrated that at that day county purposes were taken to embrace principally the erection and repair of court houses and jails, the opening and maintaining public thoroughfares within the limits of their respective counties by opening roads, building bridges and causeways and keeping the same in repair," c. So the decision in the Stockton-Powell case supra rests upon the postulate that at the time the act in question was passed, June, 1891, under the policy then existing of the State government with reference to public roads and highways the construction and maintenance of the same were county purposes.

But that is the very point in issue in this litigation. Whether under the policy now existing of the State government with reference to a certain State road, not all county roads and highways, but certain designated State roads over which the State has assumed entire control and management as to construction, maintenance, location, width, grade, materials, change, abandonment and use, and which are declared to be the property of the State, can it be said that the construction and maintenance of such highways, or so much of them as lie within a county, are county purposes within the meaning of the constitution? It is perfectly apparent that neither the case of Cotten v. County Commissioners, supra, nor Stockton v. Powell,supra, is in point.

Now if the Legislature in the exercise of its appropriate lawmaking functions may determine what is a county purpose, Jordan v. Duval County, supra, has it not by the exercise of its appropriate lawmaking power definitely and clearly determined that the building and maintenance of certain State Highways or Public State Roads is a State purpose? See Chapters 9311-9312 Laws of 1923.

In 1917 the policy of the State with regard to public roads was changed by the adoption of a new and different system from that which had existed prior to the passage of Chapter 7329, Laws of 1917. Under the provisions of that Act the State Road Department was authorized to locate and designate certain roads in the State as State Roads and to construct and maintain the same with funds which are now or may hereafter become available from the State or the State and Federal Government. The Board was also authorized to designate other roads as State Aid Roads, all of which were to be built under the supervision and control of the State Road Department. State Aid roads were defined as roads which, in the construction and maintenance of, the State may render assistance to the counties.

Under Chapter 9311 some of the roads for the "constructing and aiding in the construction of" the bonds of Leon County in this case are to be issued, were declared, designated and established as State Roads.

It seems to be clear that beginning with the Act of 1917, Chapter 7328, supra, it became the definite purpose of the State through legislative enactment to adopt a new and entirely different system for the construction and maintenance of public roads in this State. All the public roads or highways not including navigable rivers and lakes were classified and placed in three classes: First, State roads to be constructed and maintained with State funds and Federal funds; second, State Aid Roads, which in the construction and maintenance of the State may render aid to the counties respectively, and third, such roads and highways, local in character, which under the old system the county commissioners are authorized to construct and maintain under the provisions of the law.

The classification of roads as State Roads and County Roads is not new. The distinction was made by the State of Ohio by a decision of the Supreme Court of that State in 1848. That State was among the first of the States to begin the work of road development and improvement and many of the road laws of the country are largely derived from the laws of that State. A State Road was defined to be "a road running into two or more counties and is distinguished by this from a county road which lies wholly within one county. The first was formerly established by Acts of special legislation; the latter by county commissioners under general laws." See Ohio ex rel. Stebbins v. Treasurer of Wood County, 17 Ohio 184; 15 Am. Eng. Encyc. Law 352.

The State if it deems proper to do so can take immediate charge by its own agents of certain Public Highways because it is one of the functions of government to provide public highways for the convenience and comfort of the people. It may undertake that work directly or by a county which is a governmental agency. See Atkin v. Kansas, 191 U.S. 207,48 L. Ed. 148, 24 Sup. Ct. Rep. 124; 13 Rawle C. L. 79.

This State is not prohibited by the constitution from itself engaging in the work of building and repairing public highways.

Roads established by the Legislature are under legislative control and are therefore a State enterprise or function, and belong to the State. State ex rel. v. Board of Com'rs of Marion County, 170 Ind. 595, 85 N.E. Rep. 513; 1 Elliott on Roads Streets, Par. 10. Now by the Act of 1923, Chapter 9311, certain roads were declared, designated and established as State Roads. State Roads Numbered One, Ten and Nineteen were among those so established, Number One extending across the State from west to east from a point on the Alabama State line in Escambia county to Jacksonville in Duval county; number Ten, extending from the Georgia State line near Beachton to East Point and number Nineteen extending from a point east of Tallahassee on State Road number One to Williston. The Act provided that the roads named and numbered therein shall be and constitute the "System of State Roads of this State," and when located and constructed by the State Road Department shall "become and be the property of the State." The State Road Department was empowered to determine and fix the lines and locations of such roads between the cities and places named in the Act. The State Road Department had the power to utilize old country roads or lay out new ones in determining and fixing the lines and locations of the State Roads named. Under the provisions of Chapter 9312, Laws of 1923, the State Road Department was vested with the power of eminent domain to condemn all necessary land and property for the purpose of securing rights of way and building material for "State Roads." Injuries to such roads by the wrongful act of persons using them are to be compensated in damages and recovered by suit maintained by the Road Department and paid over into the State Treasury to the credit of the State Road Tax Fund. By Chapter 9309, Laws of 1923, a State tax of one mill on each dollar of taxable property within this State for the years 1923 and 1924 was levied for the purpose of constructing roads in this State as provided for in an Act of Congress approved July 11, 1916, entitled "An Act to provide that the United States shall aid the States in the construction of rural post roads and for other purposes." The State Road Department was authorized to receive the grants of money appropriated under the Acts of Congress and apply the same to the public roads and bridges in the State in accordance with the terms expressed in such Acts. A like Act was passed in 1921, Chapter 8575, levying a like tax for the years 1921 and 1922. Chapter 7327, Acts of 1917, definite appropriations were made for the years 1916-1917 and 1918 for the same purpose. For the years 1919 and 1920, a tax of two mills on the dollar was levied for the same purpose by Chapter 7901, Acts 1919. In 1921 a License Tax upon dealers in gasoline was imposed for the "State Road License Funds," and in 1923 a license tax on dealers in gasoline and a tax of three cents per gallon for every gallon sold was levied for the same purpose, and in 1925 a license tax and a tax of four cents per gallon of gasoline sold was levied for the same purpose.

It is difficult to perceive how the Legislature could have more certainly and effectively determined to take over as a State function or purpose the establishment, construction and maintenance of certain public roads.

Having done that, the State withdrew from the counties so much of the public road construction and maintenance power which had been delegated to and exercised by them as related to the special roads known and designated as State Roads enumerated in the Act of 1923, Chapter 9311, supra. So the construction or maintenance of such roads or any part of them became no longer a county purpose.

It is perfectly obvious in such case that the circumstances of locality and benefits cannot render the construction and maintenance of any part of such road a county duty or purpose.

The establishment, construction and maintenance of such roads are as completely a State purpose as distinguished from a county purpose as the building and maintenance of the State Capitol and grounds; or the State Hospital at Chattahoochee, or the Florida School for the Deaf and Blind in St. Johns County, or the Florida State College for Women at Tallahassee, or the University in Alachua County. An Act authorizing the counties in which either one of the above named institutions is located, to issue bonds to aid the State in the repair and maintenance of such institutions would probably be held to be invalid as not being for a county purpose. Yet by what test or peculiar feature or property could either of the above named institutions be differentiated from the institution of State Roads designated by the Act of 1923 that would fix the character of one as a State purpose and the other as a county purpose? Certainly not the fact of locality, benefits or use by the public. So that it is plain a county purpose and a State purpose are governmental functions fixed and determined by legislative enactment within the limitations prescribed by the constitution.

A county being a mere political division of the State and a municipality a mere State agency with some modifications, the phrase "county purposes" as used in Section 5, Article IX of the Constitution can relate only to governmental functions which are or may be performed by municipality, county or State. When the State acts through the Legislature in the appropriate exercise of its power and declares any function to be distinctively a State function or purpose, that particular function becomes no longer either a municipal or county purpose, and cannot become so because of locality, benefit or use, or all combined.

For that reason the purpose so declared to be a State purpose cannot be both county and State because the retention, possession, occupancy by the State of the particular activity primarily governmental in nature precludes the idea of county interference or co-operation. Especially is this proposition true in view of the provision of the constitution that taxes may be assessed and imposed by counties for county purposes and "no other purposes." The latter phrase was not used either in the constitution of 1838 or that of 1865. If there can be such a purpose as a "State and county purpose," even in such case the purpose could not be said with due regard to the meaning of words to be a "county purpose." It would have to be classed as a purpose other than "county purpose." When the legislature classifies or designates activities as State, county or municipal functions or purposes, such classification becomes fixed and it is doubtful if any activity, so classified can be conceived of as partaking of the nature of any other class than that in which it is placed by legislative authority.

The case of Skinner v. Henderson, 26 Fla. 121,7 South. Rep. 464, contains obiter dictum which seemingly is contrary to the proposition that a purpose can be both county and municipal so that the county would be authorized to raise money by taxation for such purposes. The dictum seems to rest upon the assumption that the county having the power to designate the place and pay the entire cost of the bridge construction as well as to determine the character and qualities of the material used, it could lawfully pay for part of the cost of construction. But such was not the case presented. The point was not necessary to the decision, nor are the facts analogous to this case, as the county of Leon has not the power to locate any part of either State Road, determine its width or grades, or prescribe the materials to be used in construction or regulate its use or maintain an action for damages for injury to it.

The petition alleges that the County Commissioners of Leon County, acting under the provisions of Sections 1531, 1533 and 1534, Revised General Statutes, adopted a resolution declaring that the Board deemed it expedient and for the best interests of the county to issue bonds of the county for the purpose of "Constructing and aiding in the construction" of paved, macadamized or other hard-surfaced highways in Leon County. That the proceeds derived from the sale of the bonds after deducting expenses of issue should be apportioned and expended upon certain roads named. Among the roads named were certain State Roads. The total amount of the bond issue was One million five hundred thousand dollars, of which one million and sixty-nine thousand was to be appropriated to and expended in aid of the construction of State Roads numbered One, Ten and Nineteen. Those roads are roads over which the county has no jurisdiction or control, could not construct and has no voice in the location of same; has no power to prescribe the route, grade or width of the same, nor any power to prescribe the materials of which they may be built. So the greater portion of the bond issue is proposed to be utilized not in constructing, but "aiding in the construction of" certain State Roads. The statute does not authorize the issue of county bonds for any such purpose. The authority granted to the county is to issue bonds for the "purpose of constructing paved, macadamized or other hard-surfaced highways." The Act of the Legislature, Section One of which became Section 1531, Revised General Statutes, was Chapter 4711, Acts of 1899. At the time that Act was passed and when the Revised General Statutes went into effect, the construction of all roads or public highways was under the road system then prevailing, a county purpose. The State had not definitely declared the building, maintenance and regulation of certain roads to be exclusively a State purpose or function. The State may aid the county in the construction and maintenance of certain highways which under the system now established is still a county purpose, but the county may not aid the State in the construction of certain highways the construction and maintenance of which are declared by valid legislative enactment to be exclusively a State function or purpose. Nor was the statute under which the proposed bonds are to be issued enacted in contemplation of such case, nor is its language broad enough to comprehend it. Because as the county has not the power to construct such roads, it cannot be said that the power to construct carries with it the power to aid in the construction. And the power is limited to construction, an act which the county has not the legal power to do.

There is still another phase of the proposition to which it may not be amiss to call attention. The State by legislative enactments has established a new system of public highways, in which certain highways are expressly declared to be State Roads, the construction, maintenance and control of which are declared to be a State function and which by name and number are segregated from and taken out of the class of roads which under that system the counties may still designate, construct and maintain as a county purpose and placed in a different class over which the State exercises complete control. The funds to be used for the construction and maintenance of such State Roads is created and raised by a tax upon property, excise taxes and appropriations by Congress. That portion of the fund to be raised by taxes must come from a tax uniform and equal in rates and levied in pursuance of law. Sections 1 and 3, Article IX Const. A State Road as designated by the Act of 1923, Chapter 9311, is a continuous highway between designated points within the State for the construction and maintenance of which the State Road Department is required in January of each year to make up a budget of such work for the ensuing year. It is not within the legal power of the Board to discriminate between certain localities along such highway by constructing the road in some places of superior and expensive material, while the other localities construct the road of inferior and less expensive material. The cost of construction should vary on such State Roads no more than the topography of the country and the character of the soil on which the road bed is laid makes necessary. Otherwise there would be an unjust distribution of public funds and an unequal burden of taxation to support such State purpose. An opportunity would thus be afforded for a favoritism of localities which could be justified by no consideration consistent with a fair administration and use of public funds. To abstain even from the appearance of evil is a safe standard of official as well as moral conduct.

Neither has the Board the power to compel a county to issue bonds in aid of the construction of a State Road, nor by offering it an alternative of an inferior character of road through the county endeavor to persuade it to aid in the construction of it by an issue of bonds. If the Board had any such power it could determine the amount necessary to be raised for such purpose and deprive the Board of County Commissioners of that discretion secured to it by Section 1531, Revised General Statutes, supra. If the State Board has no such power then the taxation in aid of the construction of such roads would be made to depend not upon a rule or statute securing uniformity for the purpose, but upon the opinion or will of the particular Board of County Commissioners of the counties respectively through which the State Road is established by State authority.

In such case it would be legally possible for one county by taxing the property within its limits aid in whatever sum its commissioners deemed convenient, while another county could refuse altogether to aid in any sum, yet the people of each would have the use and enjoyment alike of the same road facilities. The distribution of the burden of taxation for such a general purpose, and in the execution of a State function, could not in fairness be made to depend upon a system of such doubtful efficiency.

Chapter 8553, Laws of 1921, is referred to as authorizing the counties and Special Road and Bridge Districts in this State to "aid in the construction or maintenance of any State or State Aid Road by contributions to the State Road Department of cash, bonds, time warrants or other things of value," but if the construction of a State Road is not a county purpose, the act is ineffectual as authorizing the expenditure of county funds for purposes other than county purposes. The Act of 1925, Chapter 10788 approved May 19, 1925, purporting to validate the Special Bond Election held in Leon County under the resolution adopted by the Board of County Commissioners referred to in the petition is ineffectual to give validity to the Bonds to be issued because the purpose of such bond issue is for a purpose other than a county purpose in contravention of the section of the constitution to which reference has been made. A validating Act of that nature can only cure irregularities in the exercise of a lawful power that exists or may have been conferred, which irregularities were not in relation to some procedure which the legislature in the Act conferring the power may not have in the first instance omitted as unnecessary to the exercise of such power. But a curative statute will not have the effect to validate acts which the legislature could not have previously authorized. See 36 Cyc. 1222; Wright v. Johnson, 108 Va. 855,62 S.E. Rep. 948.

I am of the opinion therefore that the demurrer to the petition should have been sustained and the motion to strike the answer of the intervenors denied. In my opinion therefore the decree of the court validating the bonds should be reversed.