This case has been here before under the title Gunter v. Hackworth, 182 Ala. 205, 62 So. 101. On the present appeal, which seeks to review the ruling of the court in Gunter v. Hackworth, the record was assigned to Judge Thomas, and he prepared the opinion, which appears below as a dissent. On the former appeal we noted the fact that by the act of December 7, 1898 (Loc. Acts 1898-99, p. 43) the court of county commissioners of Jackson county had been "authorized, empowered and required" to issue bonds of the county to the amount of $250,000 to provide for the construction of macadamized roads and bridges in said county. The act referred to was amended at the same session of the Legislature (Loc. Acts 1898-99, p. 790), and upon the whole act, as amended, it is not at all clear that the court of county commissioners had not a discretion whether they would expend the entire amount of the bond issue authorized.
But, apart from that, the court is of opinion that there is no need to disturb the ruling of Gunter v. Hackworth. Judge Thomas' opinion would overrule Gunter v. Hackworth, 182 Ala. 205,62 So. 101, in two particulars, viz.:
(1) He holds, in effect, that an indebtedness authorized by statute at the adoption of the Constitution, but not then yet incurred — "incurred" is the word used by the Constitution, and none other seems to meet the situation fully — may be considered for the purpose of fixing the then indebtedness of the county in excess of 3 1/2 per centum of the assessed value of the property therein. Such a ruling would no doubt prove a great convenience to the creditors of the county of Jackson; but a debt merely authorized, or required by existing law to be created in the future, is neither a debt already incurred, nor, for that matter, is it a debt already created, and no labor of discussion can make it so. Now the language of the Constitution (section 224) is that —
"Any county which has already incurred a debt exceeding 3 1/2 per centum of the assessed value of the property therein shall be authorized to incur an indebtedness of 1 1/2 per centum of the assessed value of such property in addition to the debt already existing."
In every other case — even the case in which the debt already incurred fell short of 3 1/2 per centum of the assessed values of the county by the narrowest margin, the county was by the first clause of the section forbidden to become indebted in an amount, including then present indebtedness, greater than 3 1/2 per centum of the assessed value of the property therein. Substantially that was the situation of Jackson county, and, while that may be regretted, it cannot be avoided if the plain letter of the Constitution is to prevail.
(2) He also holds that the additional indebtedness of 1 1/2 per centum, which a county is allowed to incur in the event it has already incurred a debt exceeding 3 1/2 per centum of the assessed value of the property therein, means 3 1/2 per centum of the assessed values at the time when the county seeks to avail itself of the privilege of an additional indebtedness of 1 1/2 per centum, though *Page 657 such contingency may be deferred for many years after the adoption of the Constitution. In other words, the opinion holds that many years hence some counties may become indebted to the extent of 5 per centum of their assessed values, while others, then practically their equals in population, wealth, and enterprise, shall still be bound by the limitation of 3 1/2 per centum; the class in which they fall depending, as we said in Gunter v. Hackworth, upon whether their indebtedness at the time of the adoption of the Constitution exceeded, or was less than, in however small an amount, the limit of 3 1/2 per centum of values as assessed for the year 1901, the year in which the Constitution was adopted. We cannot think any such result was intended. What the framers of the Constitution intended was to give relief to counties which at the time of adoption happened to be then indebted in excess of 3 1/2 per centum, but that relief was limited to exigencies and values then existing, and was not intended to last in perpetuity.
Reference is made to the debates of the Constitutional Convention. So far as the report of these debates indicates the judgment of the convention, and not the mere personal opinion of the speakers quoted, the office of interpretation may have regard for them. It may be very seriously doubted, however, that the debate which has been quoted in this case tends to shed any light whatever on the question as to the full meaning of the convention in adopting the section under review; but, if it need be considered, it is proper to say that the journal of the debate was examined when the opinion in Gunter v. Hackworth was in preparation, and seemed then, as it does now, to sustain the conclusions then announced.
It follows that the decree in this cause should be affirmed.
Affirmed.
All the Justices concur, except