State v. Southern Railway Co. , 115 Ala. 250 ( 1896 )

HARALSON, J.

1. The caption of the act we are •invited to construe-is', “To-amend sections 8 and 10 of an act to create the Board of Education of the city of .Birmingham, .and to prescribe the powers and duties of the same.” — Acts, 1894-95, p. 739.

Section 8 of the act proposed to be amended, (Acts, .1884-85, p. 528), provides simply “That the said board of education shall have power to charge in the several ■grades of said schools such incidental or other fees as may be deemed necessary for the proper -conduct of said school;” and the amendment thereof was but a slight change, conferring on the board power- to charge nonresident pupils such tuition or other fees as they might deem proper, and allowing them, in their discretion, to assign free scholarships in the various grades of the school.

Section 10 of the original act to be- amended provided “that all funds devoted to school purposes, in the city of Birmingham, whether derived from State, county, or city, shall be paid into the treasury of said city, and be disbursed in such manner as the board of education may direct;” and further, that “not more than four per cent, of the money derived from the State shall be used otherwise than for the payment of teachers employed in such schools.

This section by the amendment was made to read as .follows.:.., “Section 10. That all moneys devoted to school purposes in the city of Birmingham, whether derived from State, county or city of Birmingham, or obtained by gift or bequest, or in any other manner whatsoever, shall be paid over into the hands of a treasurer, elected by the Board of Education, as herein provided, all moneys intended for school purposes in the hands of the 'treasurer of the city of Birmingham, together with the poll tax, and the amount of the estimate for any scholastic year filed with the mayor and aldermen as provided in section 9 of this act, and shall be by him paid over to the treasurer of the board .of education in three equal instalments, on the first day of September, the first day of December, and the first day of March of the said year. Such moneys, together with all unexpended balances in the hands of said treasurer of the'board of education, shall constitute a school fund which shall be disbursed in the interest of the public schools of the city of Birmingham in such manner as the board of education may direct.”

Section 4 is added, as a part of this amendatory act, by-way of independent legislation, having nothing to do with sections 8 and 10 proposed to be amended, and provides, “That said board of education shall have power to bu'ild upon the property of the city suitable houses for the use and accommodation of the public schools of said city, whenever funds shall have been provided for the .same, or the board may rent such houses, and shall keep said houses in repair and furnished with suitable furniture, apparatus and appliances ; and to enable said board to do this and maintain an efficient system of public schools free, as nearly as practicable, to all the school children in the city, there is hereby'laid and levied upon all the -taxable property within the corporate limits of the said city, or that may be lawfully taxable,therein, an annual tax, two-tenths of one per. cent., or twenty cents on every one hundred dollars worth of such property, which shall be assessed by the tax.assessor -of Jefferson county at the same time, and in the same manner, and under the same penalties and entered on the same lists with other State taxes. And the same shall be collected by the tax collector of Jefferson county at the same time with and as a part of the State taxes. And when collected shall be paid over each week to the treasurer of said board to be by him paid out and expended tllidei1 the orders and direction of' the said school board, that whenever the tax levied by the State shall exceed fifty-five cents on every one hundred dollars of taxable property, then the tax hereby levied shall be diminished to that rate which added to the rate levied by the State shall not exceed seventy-five cents on every one hundred dollars worth of taxable property, the limit fixed by the constitution.”

The only purpose of 'the amendatory act, as declared in its title, was to amend the two sections named of the former enactment. They were amended,' so as to be made to read in the Words and figures set out in the amendatory act, each amendment being round and complete within itself. At this point, the purpose of the act, as declared in its caption, was fully accomplished. After this, by independent legislation, as we have seen, the act proceeds to levy a tax óf 20 cents on the value of every hundred dollars worth of property in the city for the purposes of the promotion of public education within its limits — -a subject not referable and cognate to the subject expressed in the title, and which would never be suggested to the legislative mind from reading or hearing the caption read. • The amendments referred to in the caption; covered in part provisions already existing in the original enactment, and were trivial and unimportant as compared with the other proposed amend'ffleiit — to raise an additional- tax for public schools, which was manifestly- the main, controlling purpose of the enactment, and yet, it is not disclosed or even hinted at-in the caption. The provision' is so violative of section 2, Art. IV of the constitution, requiring that each law shall contain but one subject, which shall be clearly expressed in the title, we need indulge no argument to show it. The adjudications are abundant and pointed in condemnation of such legislation-. We content ourselves by a reference to cáses on the subject, in which others also will be found cited.—Ballentyne v. Wickersham, 75 Ala. 583; Ex parte Reynolds, 87 Ala. 138; Ex parte Cowert, 92 Ala. 94 ; Woolf v. Taylor, 98 Ala. 254 ; Ex parte Gayles, 108 Ala. 514.

2. Section 7 of Art. XI of the constitution provides, that “No city, town or other municipal corporation, other than provided for in this article, shall levy or collect a larger rate of taxation, in any one year, on the property thereof, than one-half of one per centum of the value of such property as assessed for State taxation during the preceding year,” etc. If this tax had been authorized to be levied directly by the city, most obviously, it would have been in direct violation of this provision of the constitution, as being a tax authorized to be levied by the city in addition to the maximum rate of taxation authorized by the constitution. For this reason, no doubt such a provision was not incorporated in the act. It was supposed, however, as appears from the terms of the act, that this constitutional inhibition might be legally avoided, by providing that the State should levy and collect the tax and pay the same over to the treasurer of the board of education. In aid of this device, it is provided as we have seen, “that whenever the tax levied by the State shall exceed fifty-five cents on every hundred dollars of taxable property, then the tax hereby levied shall be diminished to that rate, which, added to the rate levied by the State, shall not exceed seventy-five cents on every hundred dollars worth of taxable property, the limit fixed by the constitution.” But if this were allowed, it would effectually emasculate this constitutional prohibition. It would sanction the levy of a tax by the State for the purposes of public education in the city, which the city itself is prohibited by the constitution from levying and collecting, and which, if sanctioned as to one city, might be extended to every other locality in the State, in overthrow of this‘fundamental law. It would allow a thing to be done indirectly, which is forbidden to be directly done.

The constitutional inhibition applies with equal force, as a prohibition against the levy and collection of such a tax, whether by the State or by any city, town or municipal corporation.—Elyton Land Co. v. Mayor, &c., 89 Ala. 477; Hare v. Kennerly; 83 Ala. 608; Schultes v. Eberly, 82 Ala. 246.

What we have said must not be understood as questioning the correctness of anything decided in the case of Mayor, &c. v. Klein, 89 Ala. 461, touching the power of the legislature to authorize assessments on property for local improvements. That case, on the other hand, supports what has been here decided as to this special tax.

There was no error in sustaining the demurrer to the complaint.

Affirmed.