Counsel for appellant insists that we have misinterpreted the previous decisions of this Court, wherein we said that the second proviso to section 215 of the Constitution does not embrace the power of the county to create funds for road purposes when the county is in no position to make a debt, observing that the decisions have been to this effect. In this we cannot agree with counsel for appellant.
In the case of Southern Railway v. Jackson County, 189 Ala. 436,66 So. 570, we find the following clear cut expression in that particular:
"Having due regard to the language of the special tax proviso of section 215, and also the clear purpose of section 224, we think the future application of section 215 must have been intended only for those counties which possess the power of creating county debts or liabilities; that is to say, counties which have not exceeded the debt limitation prescribed by section 224 of the same instrument."
Also in the case of Littlejohn v. Littlejohn, 195 Ala. 614,71 So. 448, 449, speaking with reference to said second proviso of section 215, the Court observed "that this section contemplates the creation of debts (necessarily within the debt limit fixed by section 224 of the Constitution) by county governing bodies." *Page 642
And in the case of Southern Railway v. Cherokee County,144 Ala. 579, 42 So. 66, 67, construing the words of said proviso, "or that may hereafter be created," held them to mean debts contemplated by the commissioners' court for erecting, maintaining and repairing public roads, and to provide for the payment of such debts.
And in Littlejohn v. Littlejohn, supra, with reference to the term "liability" in said proviso, it was held that in connection with the word "debt" there used, it comprehended "the engagement for and the payment of interest as an incident to the principal obligation validly assumed by the county in order to provide public buildings, public roads, and bridges. * * * it does contemplate the incurring of obligations for those purposes, to be satisfied and discharged in the future, and intends the gathering of the means to that end by and through the imposition of the special taxes described in section 215." That opinion also recognizes that the proviso of section 215, supra, contemplates the creation of a debt or liability, and the authority to levy the special tax there described is to be applied to the exclusive use of discharging the debt or liability so incurred.
In those cases the Court was dealing with a county which does not appear to have reached its constitutional debt limit; and while in the Littlejohn case, supra, it observes that the power to incur a debt or liability is expressly recognized by the proviso in section 215, that power must be understood to be within the limits of section 224, supra, because the next paragraph above so states, and because there is nothing in the opinion or in the report of the case indicating that the county had reached its constitutional debt limit. In the Jackson County case, supra, the same status exists in that respect.
Counsel for appellant insists that the word "liability" has peculiar significance in this proviso.
It is perfectly clear from all those cases that the debt or liability referred to in the proviso "contemplate the incurring of obligations for those purposes, to be satisfied and discharged in the future." Littlejohn v. Littlejohn, supra.
We are also taken to task for what counsel for appellant conceives to be a misinterpretation of their argument, insisting that the amendment of section 215, supra, had the effect of repealing the local act of 1885. We did understand their argument to be as expressed in the opinion.
Counsel say that what they meant by their argument is thus expressed in their application for rehearing:
"The Local Act of 1885 not only compels Jefferson County to include in its general tax levies a special tax of one-tenth of one percent for roads, but it also compels Jefferson County to devote the proceeds of that tax to the maintenance and construction of roads. That is, to pay debts and liabilities the county incurs for road construction and maintenance insofar as the funds derived from that tax are sufficient for that purpose. The unquestionable consequence is that Jefferson County is, because of the local act, precluded from discharging its debts and liabilities for road purposes out of funds derived from the taxes it levies pursuant to the proviso, to the extent that it is compelled to discharge such debts and liabilities out of funds derived under its general powers of taxation."
But if it be conceded that the funds derived from the second proviso of section 215, supra, can only be used for a purpose for which those raised under the Act of 1885 must at the time of the adoption of the Constitution also have been applied, that does not serve to cause the Act of 1885 to be repealed by said proviso. For it must be remembered that it is not obligatory to raise any funds under section 215, and it is not contemplated that it be done except to supply a need not otherwise provided for. To the extent that the legislature has so provided, it would be a perversion of section 215 to raise funds under it. For the proviso by no means sets up the only method which may be adopted to pay debts and liabilities for building and maintaining roads, as we stated in the instant opinion. If this may be done by the use of funds derived from the five mill tax provided for general purposes, or from any other source, it would not be a proper interpretation of section 215 to hold that it *Page 643 could not be done in that way, and that the special tax under the said proviso must be the only source from which funds to do so may be obtained. This carries us back to our discussion in the opinion in this case, and makes it appropriate to appellant's version of his argument.
The other question dealt with in the opinion depends upon the application of section 216, Constitution. It is our feeling that we have fully expressed our views, and no new argument has been presented in that connection.
With this discussion, we think the application for rehearing should be, and it is, overruled.
Application for rehearing overruled.
BROWN, LAWSON, SIMPSON, and STAKELY, JJ., concur.