Keene v. Jefferson County , 135 Ala. 465 ( 1902 )

HARALSON, J.

1. Before the adoption of the constitution of 1875, the legislature had the power to authorize a county to contract debts, in the promotion of railroad and other enterprises of a public beneficial nature, not violative of the constitutional restrictions in behalf of life, liberty and property, ‘and to authorize the levy of taxes for their payment. “The power, then, in the legislature, to authorize the counties of the State to make, contracts, to own property and incur obligations, is” (as was said in Ex parte Selma & Gulf R. R. Co., 45 Ala. 727), “'without limit, save such as policy and discretion may demand.”—Marengo County v. Coleman, 55 Ala. 605; Chambers County v. Lee County, 55 Ala. 537; Mobile County v. Kimble, 54 Ala. 36; Slaughter v. Mobile County, 73 Ala. 134.

2. Under the constitution of the State preceding that of 1875, under which these adjudications were made, the legislature had unlimited poAver over the subject, the unhappy consequences of which are well known. Much litigation ensued; taxes to an oppressive extent were levied; bondholders instituted legal proceedings to compel the levy of taxes, and the confiscation of the property of the people was threatened. In the constitution of 1875 its framers incorporated a provision to limit the power of the State to levy taxes beyond a prescribed rate', the object of which was to prevent the recurrence of such evils. In Art. XI, § 5, it was provided, that “No county in this State shall be au-thoidzed to levy a larger rate of taxation, in any one year, on the value of the taxable', property therein, than one half of one per centum” with provisos for an additional rate to pay debts existing at the date of the ratification of the constitution, or that might thereafter “be created for the erection of necessary public buildings or bridgesand for such debts and for buildings or bridges, the counties were authorized to “levy and collect such special taxes as may have been, or might thereafter be authorized by law.” Under this limitation of power, no county could levy in any one year a larger rate of taxation on the value of the property therein, than one-half of one per centum, except to pay past debts and for public buildings and bridges. A county could not levy a special tax for any purpose other than those expressed in these provisions, if' such special tax, together with the tax for general purposes, exceeds one-half of one per centum.—Garland v. Board of R. of Montgomery County, 87 Ala. 223, 227; Hare v. Kennerly, 83 Ala. 608. This power of the legislature, however, to authorize the counties of the State to contract debts, for promotion of public enterprises not violative of the constitutional restrictions on behalf of life, liberty and property, was hot restricted further than was provided in said section 5, Art. XI, of the constitution, and except as thus limited, its power remained the same, as before the adoption of that constitution. Those limitations as to the authority of the legislature to authorize the levy of taxes by a county for any purpose, were thereafter mandatory, and to that exent, it was shorn of power.

3. The legislature, on February 28, 1901, (Acts of 1900-1901, p.. 1702), passed an act, — to quote its title,- — ■ “To make Jefferson county a sanitary district, to establish a sanitary commission therefor, make the commission a body corporate, prescribe its powers and duties, and to regulate and provide for sanitation In said county.” By another act approved the same day, the •board of revenue of the county were authorized to issue negotiable bonds of said county to an amount, not to exceed $500,000 for the purposes of sanitation in said county, and to require said board to levy and set aside a county tax of one-twentieth of one per centum, in order to provide for the payment of interest on said bonds; to provide a sinking fund for the redemption of the same, and for maintaining a sanitary system and protecting water supplies. (Acts of 1900-1901, p. 1722.) The last act- was passed, evidently, in aid of the first, and to provide the means, by which the first could be carried into effect. Indeed, it makes plain reference to the latter enactment, especially in sections from 30 to 34, each, inclusive. The first act makes no provision for levying a tax, or for raising the funds for the construction of the sanitary sewer system therein provided, and without the last act, it is difficult to see the source from which the necessary funds, could come. Section 11 of the last, act providing for the levy of said special tax of one-twentieth of one per cent for the purposes specified, contains the provision, “that, no levy shall be made by said board of revenue in any one year, exceeding one-lialf of one per cent for the ordinary county purposes, but not including necessary public buildings and bridges,” and this provision is set out in the bill. Here was a limitation on the power'of the board, not to exceed one-lialf of one per cent, for general county purposes, including the one-twentieth of one per cent, for sanitary purposes, and this brings the levy clearly within constitutional restrictions.—Francis v. Railway Co., 124 Ala. 544; Railway Co. v. St. Clair County, 124 Ala. 491; A. G. S. R. R. Co. v. Reed, 124 Ala. 253.

It is said, however, by the complainant, that the first act purports to be for Jefferson county, and is not such an enterprise as will be beneficial to all the people of the county, while it is proposed to pay for it out of the funds raised by taxation on the property of all the people, or, in other words, that the sewer system and the benefits to be derived from it, when and if constructed, are local, confined to a part only of the people of the county, while all are taxed to build and maintain it. The acts-, if that were important, are not fairly subject to such objection. It is shown that about two-thirds- of the population of Jefferson county, of more than 1,0.0,000 people, live in the two 'valleys and at the foothills, through which the trunk lines o.f the sewers are proposed to, be run, and that three-fourth-s in value of al], the property in the county is within the area of drainage covered by these two trunk lines of sewer. The. system in its beneficial effects, extends to the entire county for the protection of its water courses from pollution, and was intended to meet not only the present needs, but to fulfill in the future, the requirements of sanitation and health, in cities and towns, and in all the thickly settled portions of the county. The health of the valleys drained is of great importance to every citizen of, the county, in preventing the spread of contagious and infectious diseases throughout its borders. The prevention of diseases is oftener better and cheaper than to cure them when they come.

In Slaughter v. Mobile County, 73 Ala. 137, in construing the act for the improvements of the river, bay and harbor of Mobile, at the expense of the county, the court said, that while the act “is not in itself a contract, it is nevertheless an authority to make contracts, one or more, to the exent of one million of dollars. The question arises-, what is the nature of the act, and what the effect of its repeal. Its purpose, as is plainly expressed, was to improve the river, bay and harbor of Mobile, at the expense of Mobile county. This, we must presume, was with the consent, and at the request of the taxpayers 'of the constitutional body, made known through their representatives.” The -same intendments will be indulged in reference to the- sewer system proposed by these -acts — that it is a health system in which all the people of the county are more or less interested. It is no more local than a county road or bridge to open, build or improve which, the inhabitants of Birmingham or Mobile,. remote from the improvements, are taxed the same as those who live in their immediate localities, and wlio are most benefited. If it were conceded that tliese sewer improvements are. to be more beneficial, to a part of tlie people of Jefferson county, than to those of other parte of said county, we are not to be understood as holding that said nets of the legislature would, on that account, be rendered invalid.

5. Again it is urged that the two acts are unconstitutional for the reason that — as claimed — these laws were local and special, and no notice of the intention to apply to the legislature, for their passage was published in Jefferson county for twenty days prior to the introduction of the bills.—Constitution of 1875, Art. IV, § 24. It was long ago held that this court will indulge the intendment that the legislature conformed to every constitutional requirement, which the journal of its proceedings docs not. affirmatively show was disregarded, and that we must uphold a legislative enactment until its unconst.itutionality is clearly shown. Harrison v. Goody, 57 Ala. 49; Clarke v. Jack, 60 Ala. 271. The printed journals of the house of representatives, where the bills originated, are silent as to notices ■as to these bills. We will, therefore, presume they were given, as the law required.

Affirmed.