The county bonds validated by the Circuit Judge in this statutory proceeding, are for the purpose of aiding in the construction of certain State Roads in the county and of constructing certain county roads. The bonds are sought to be issued pursuant to Sections 1531 et seq. Art. 3, Division 1, Title 9, Revised General *Page 156 Statutes of 1920, supplemented by Chapter 8553 Acts of 1921. Section 1531 authorizes the county commissioners by due procedure and upon an approving vote of the appropriate electors of the county (see Chapter 9294, Acts of 1923) to issue county bonds for the purpose of constructing paved, macadamized or other hard surfaced highways, and Section 1543 authorizes an annual county tax to pay the interest and principal of bonds issued under that Article of the Revised General Statutes. Chapter 8553, Acts of 1921, authorizes any county 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 in the construction or maintenance of roads, including contributions of "county road bonds which have been, or which shall hereafter be voted of the people of the county."
On appeal it is contended that the bonds proposed to be issued in this case involving county taxation to aid in the construction of designated State Roads in the county, are invalid upon the ground, among others, that State Roads are State property used for a State purpose, and the constitution forbids a county to levy taxes for other than a county purpose.
Section 1531 of the Revised General Statutes of 1920, clearly authorizes county road bonds to be issued by the county and does not in terms authorize county bonds to be issued to aid in the construction of State roads; and Section 1543 authorizes a tax levy to pay the bonds that are issued under Section 1531, Revised General Statutes of 1920, and does not authorize a tax to pay bonds that Chapter 8553 purports to authorize to be donated for constructing State roads. Chapter 8553, Acts of 1921, is permissive as to donating and does not make provision for issuing bonds, nor does it authorize a tax levy. Even if by interpretation *Page 157 or otherwise the cited statutes purpose to authorize a county bond issue and tax levy to aid in the construction of State roads, the legislation is ineffectual because by the terms of the statutes establishing a system of State Roads of this State, extending throughout the State, a State Road is the property of the State, constructed independently of the county system of public roads and without reference to county lines, with State funds under State authority to the exclusion of county authority, which considerations make the State Roads a State function, expense and purpose, and not a county function, expense or purpose; therefore county bonds to aid in constructing State Roads are for a State purpose and not for a county purpose; and as such bonds involve county taxation they violate Article IX of the Constitution which commands that the legislature shall provide (1) for a uniform and equal rate of taxation for State purposes, Sec. 1; (2) for raising revenue sufficient to defray the expenses of the State for each fiscal year, Sec. 2; and provides (3) that no tax shall be levied except in pursuance of law, Sec. 3; and (4) that the legislature shall authorize the several counties to levy and impose taxes for county purposes and for no other purposes, Sec. 5.
The history of the Florida legislation relative to public roads shows the early establishment of a county system of roads which still continues, and also shows the establishment of "a system of State Roads of this State," which are "the property of the State."
Pursuant to the Treaty by which Spain ceded to the United States all the territories known by the name of East and West Florida, which Treaty was ratified and proclaimed at Washington, D.C., on February 22, 1821, the Spanish governmental authority in "the Provinces of the Floridas" "ceased, and that of the United States of America *Page 158 was established over the same" by Proclamation issued at Pensacola, July 17, 1821, "by Major General Andrew Jackson, Governor of the Provinces of the Floridas," by virtue of authority of James Monroe, President of the United States, evidenced by a commission dated March 10, 1821, the Province of East Florida having on July 10, 1821, at St. Augustine been delivered "to the government of the United States," through Colonel Robert Butler, Adjutant General representing the United States.
By an Act of Congress approved March 30, 1822, "all that territory ceded by Spain to the United States, known by the name of East and West Florida" was constituted a Territory of the United States under the name of the Territory of Florida, and a system of government for such territory was promulgated.
By a Territorial Act approved August 23, 1822, the City of Pensacola was incorporated and given "full power and authority to keep in repair all public roads leading to the city for the extent of three miles therefrom."
A Territorial Act approved September 13, 1822, incorporated the City of St. Augustine, and gave to that city "all the rights, privileges, powers and immunities granted to and conferred upon the corporation of the City of Pensacola," the title of each Act being to incorporate the city "and improve the public roads in the neighborhood thereof."
A Territorial Act establishing County Courts composed of Justices of the Peace, approved September 13, 1822, provided that "the said court shall and may take cognizance of all matters and things relating to the opening and keeping in repair of roads within their counties." Another Territorial Act "concerning roads, highways and ferries," approved September 13, 1822, provided that "all the roads in the several counties in this Territory that have been laid *Page 159 out by order of any court according to law, shall be and they are hereby respectively declared to be public roads" and that all resident able-bodied male persons between given ages "shall be subject to work on the public roads and highways in such county." Sec. 1598, Rev. Gen. Stats. 1920. See Butler v. Perry,67 Fla. 405, 66 South. Rep. 150; Butler v. Perry, 240 U.S. 328,36 Sup. Ct. Rep. 258; Marshburn v. State, 65 Fla. 470,62 South. Rep. 586. An Act of Congress approved February 28, 1824, authorized $20,000 to be spent in making "a public road from Pensacola to St. Augustine," and later Acts made small appropriations for maintaining such road during the Territorial days. Florida was admitted into the Union by Act of Congress approved March 3, 1845, and the State government took control in June, 1845. Chapter 53 Laws of Florida, approved December 27, 1845, provided for a county system of public roads. See also Chapters 4338 Acts of 1895; Chapter 4769, Acts of 1899; Sec. 1588 et seq. Rev. Gen. Stats. of Fla., 1920.
Under various enactments, the county system of maintaining public roads has been observed in the Territory and the State of Florida from 1822 to the present time. See Thompson's Digest, p. 139 et seq.; McClellan's Digest, p. 898 et seq.; Revised Statutes of Florida, Sec. 626 et seq.; General Statutes of Florida, Sec. 835 et seq.; Revised General Statutes of Florida, Sec. 1588 et seq. Certain statutes authorized tax levies by counties for road purposes. See Chapter 3851 Acts of 1889; Chapter 4014 Acts of 1891, and subsequent Acts. As to issuing county bonds for hard surfacing highways, see Chapter 4711 Acts of 1899; Sec. 1531 et seq. Rev. Gen. Stats. 1920. See also Chapter 4887 Acts of 1901, and subsequent tax levy Acts. As to taxes and bonds for roads in special road districts, see Sections 1634-1647 et seq. Rev. Gen. Stats. 1920. *Page 160
Section 7, Chapter 6537, Acts of 1913, now Section 1602 Revised General Statutes of 1920, provides: "The public roads and bridges of the several counties heretofore established, according to law or by prescription, are hereby declared to be public roads and bridges and under the control and management of the Board of County Commissioners." See State ex rel. Garrison v. Commissioners of Putnam County, 23 Fla. 632,3 South. Rep. 164.
By a series of Acts prior to 1919, a State Road Department was established in Florida to advise and assist the counties in maintaining roads. See Secs. 1192 et seq. Rev. Gen. Stats. 1920.
Section 6, Chapter 7900, Acts of 1919, Section 1197, Revised General Statutes of 1920, contains a provision that "the State Road Department may, and is hereby authorized to, locate and designate certain roads in this State as State roads and to construct and maintain the same with funds which are now or which may hereafter become available from the State or from the State and Federal Government, and, provided further, that when such roads are thus located and designated they shall, upon being assumed for maintenance by the State, become the property of the State of Florida, and the State shall have the right to acquire by purchase or otherwise, or by condemnation prior to such construction, the rights of way, or road bed of and for the same, and for that purpose the State Road Department shall have the right of eminent domain, and may condemn the said rights of way or road beds or toll bridges as is now provided by law for securing rights of way or road beds for public roads by Boards of County Commissioners, and the rights of way of all roads or highways laid out or constructed or taken over by the said State Road Department now, or hereafter, the property of any of the counties of this State is hereby declared to be the property *Page 161 of the State. Provided further, that the State Road Department may, in a similar manner, locate and designate certain other roads in this State to be State Aid Roads, and to construct and maintain the same with funds derived from Federal, State or county sources; all such State and State Aid Roads to be built and maintained under the supervision and control of the State Road Department. The term 'State Aid,' as used in this Act is hereby defined as assistance rendered the respective counties by the State in the construction and maintenance of roads designated by the State Road Department as State Aid Roads, contingent upon the county or counties so aided or assisted providing and furnishing not less than one-half the total cost of the proposed work on such State Aid Roads and bearing not less than one-half of the cost of maintenance thereof."
Chapter 9311, Acts of 1923, is "an Act declaring, designating and establishing a system of State roads, providing for the location thereof, and providing that such roads when located and constructed shall become and be the property of the State."
Section 1 of said Act, Chapter 9311, as amended by Chapters 10269 and 10270, Acts of 1925, designates the "State roads" that are to be "the system of State roads of this State;" and Section 2, Chapter 9311 provides "that the above named and numbered roads 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."
By Chapters 8411 and 8575, Acts of 1921; Chapters 9120, 9174, Acts of 1923, and Chapters 10025 and 11333 Acts of 1925, funds are provided for building State roads.
It thus appears that by legislative enactments the State now has a definite system of State roads distinct from the *Page 162 previous and now existing county system, and that such State roads are "the property of the State of Florida." It is obvious that the construction of a State road by State authority as the property of the State, is a State function and purpose as distinguished from a county purpose. The question here is whether in view of express organic provisions, a county can legally issue bonds which require the levy of a tax upon the taxable property in the county to aid in constructing State roads that are constructed by State authority with State funds, without reference to county roads or county lines, such State roads being "the property of the State," and the counties having no authority with reference to such State roads.
The present Constitution of 1885 provides that "The legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purpose, and for no other purposes;" that "the legislature shall provide for a uniform and equal rate of taxation," and that "all property shall be taxed upon the principles established for State taxation." Secs. 1 and 5, Article IX. The provision of the constitution of 1868 is that "the legislature shall authorize the several counties and incorporated towns in the State to impose taxes for county and corporation purposes, and for no other purpose." See Advisory Opinion to Governor, 13 Fla. 687.
The Constitution of 1839 and that of 1865 contained the following provision: "The General Assembly shall have power, to authorize the several counties, and incorporated towns in this State, to impose taxes for county and corporation purposes, respectively." The difference between the provisions of 1839 and 1865 and those of 1868 and 1885 may be material at least when considered with other organic provisions. The organic provision controls legislation. *Page 163 Lake County v. Rollins, 130 U.S. 662, 9 Sup. Ct. Rep. 651; Cheney v. Jones, 14 Fla. 587.
The provisions of the constitution are not mere verbal formulæ for abstract contemplation; but they are potentially vital organisms, capable of practical application in conferring official powers and securing individual rights, the object being efficient governmental regulations within limitations that are prescribed and designed to be observed for the protection of individual rights. The function of a court is to give effect to the controlling law, which is the constitution, whether State or Federal, in determining litigated controversies arising under legislation or under administrative action. Marbury v. Madison, 1 Cranch (U.S.) 137; State ex rel. West v. Butler, 70 Fla. 102, 69 South. Rep. 771. While the courts will not assume to control the exercise of legislative discretion when exercised within organic limitations, yet if legislation violates the constitution as it affects matters being litigated, it is the duty of the court to so declare when appropriate to a proper decision (State ex rel. Loftin v. McMillan, 55 Fla. 254, 45 South. Rep. 882; Leonard v. Franklin, 84 Fla. 402, 93 South. Rep. 688); and when a conflict between a statutory enactment and the constitution is duly adjudicated, the constitution by its own superior force renders the legislation inoperative. State ex rel. Nuveen v. Greer,88 Fla. 249, 102 South. Rep. 739.
The constitution specifically provides for a county tax levy for public school purposes (Sec. 8, Art. 12, as amended), for costs and expenses of criminal prosecutions to be paid by the counties (Sec. 9, Art. XVI, as amended), and expressly provides that the counties shall be authorized to "impose taxes for county purposes, and for no other purposes" (Sec. 5, Art. 9), but does not define or indicate what are or may be "county purposes" within the meaning of *Page 164 the organic provision, though the constitution does require the salaries of county officers to be paid by the counties. Sec. 15, Art. 12, and Secs. 41 and 42, Art. 5. See also Sec. 3, Art. 13, and Art. 15, Const.; State v. Rose, 26 Fla. 117,7 South. Rep. 370.
While the courts will give due weight to a legislative designation of a county purpose, yet where the execution of the purpose may involve a violation of organic law, the courts will ultimately determine whether it is or is not a permissible county purpose. See City of Bradentown v. State, ___ Fla. ___, 102 South. Rep. 556; Jordan v. Duval County, 68 Fla. 48,66 South. Rep. 298; 15 C. J. 635.
A statutory designation of a county purpose will be accepted by the courts when express or implied provisions of organic law are not violated, and the designation made has fair relation to the lawful and appropriate objects and functions of a county government. If a particular public duty or function may be allocated to either a State purpose, or a county purpose, and the legislature designates it or undertakes it as a State obligation, object or function, then the express organic provision that county taxes shall not be imposed for other than county purposes, operates to forbid county taxation for the State purpose. Organic limitations upon the taxing power should be given the effect intended by the constitution which is the paramount law. The construction of public roads may be either a State or a county purpose, or the State and a county may have separate and distinct systems of public roads, the county system being confined to the limits of the county, though connecting at the county lines with roads in adjoining counties, while the State system may extend through or into one or more counties to accomplish a definite State purpose in furnishing roads between different points in the State, without regard to *Page 165 county lines. A State road in a county may be useful to the citizens of that county as a county road may be useful to the public of the State who are privileged to use it, yet the roads or systems of roads may be distinct as a State system and as a county system, the latter being a county purpose and the former a State purpose, for which State purpose the constitution expressly forbids county taxes to be imposed. For more than a hundred years there has been a system of county roads in Florida constructed and maintained by the counties under legislative authority. Now a distinct "system of State roads of this State," has been provided for by statutes, which State roads are "the property of the State," being constructed throughout the State by State funds under State authority without reference to county lines and wholly independent of the county system of public roads, which county system continues as heretofore.
In the taxation Article of the State Constitution, the words "county purpose" are used in contradiction to "State purposes" or "municipal purposes." All relate to public purposes as distinguished from mere private purposes, if not also from mere municipal or other corporate purposes. See Town of Mansfield, Stateex rel. v. Police Jury, 47 La. Ann. 1244, 17 South. Rep. 792; Ferguson v. Tyler, 134 Tenn. 25, 183 S.W. Rep. 162; Johns v. Wadsworth, 80 Wash. 352, 141 Pac. Rep. 892; State ex rel. Town of Kirkwood v. County Court of St. Louis County,142 Mo. 575, 44 S.W. Rep. 734.
Limitations upon the taxing power must be strictly construed in favor of the taxpayer. 1 Cooley on Taxation (4th ed.) Sec. 83, 119.
A county purpose is predicated upon a county function, or county property, or a county right. A State Road is the property of the State, not of a county, and a county has *Page 166 neither a function nor a right in the construction of a State Road. By the express terms of the statutes a "State Road" is a part of "the system of State roads of this State;" it is "the property of the State," constructed under State authority, with State funds derived from State excise taxes on motor vehicles and gasoline, from State taxation and from Federal appropriations. A State road is no more a county function or purpose than a Federal road would be. A county has no property right in and no authority in the construction of a State road. The use of a State road by the people of the county in which it is located is in common with the public of the State, and such use does not make it a county purpose any more than the use of a county road by the public of the State makes the county road a State purpose. The fact that the public of a county in which a State road is located use the State road in the county more than do the public of other counties, does not change the function and purpose of the road as a State road and does not make the State road a county function or purpose in the county where the road is located. A State road in another county is more used by the public of that county, so the use does not make a county purpose. If a State road is a State function and purpose and is not a county purpose for counties in which the road is not located, such State road is not a county purpose in the county where it is located, the degree or frequency of use of a State road by the public of the several counties being inoperative to change the function and purpose of a State road from a State purpose to a county purpose. To hold that county roads are State roads would in effect be an adjudication that county taxation for county roads is for a State purpose in violation of the express command of the Constitution that county taxes shall be imposed "for county purposes and for no other purposes." *Page 167
By the establishment of "the system of State Roads of this State," the same being "the property of the State," constructed throughout the State without regard to county lines, under State authority with State funds, the legislature has made such State roads a State function, expense and purpose; and the authority given the counties to donate "county roads bonds" to aid in the construction or maintenance of State roads, does not make such State roads a county purpose, even if, in view of the organic limitations upon county taxation, a State purpose may also be a county purpose for which county taxes may be imposed.
The constitution commands the legislature to provide for a uniform system of public free schools, which is a State function and purpose; but the constitution itself provides for county taxation for the support of public free schools therein. Secs. 1, 6 and 8 Art. XII. In other cases not specified in the constitution as in Section 15, Art. XII, Section 3, Art. XIII, Section 9 Art. XVI, as amended in 1894, county taxes may be levied "for county purposes and for no other purposes." Sec. 5 Art. IX. And a county cannot be authorized by statute to issue bonds involving county taxation for public free school purposes (State ex rel. Bours, v. L'Engle, 40 Fla. 392,24 South, Rep. 539); nor can a municipality issue bonds for public free school purposes. Brown v. City of Lakeland, 61 Fla. 508,54 South. Rep. 716; Munroe v. Reeves, 71 Fla. 612, 71 South. Rep. 922; State ex rel. Nuveen v. Greer, 88 Fla. 249,102 South. Rep. 739.
The construction or maintenance of State property is obviously a State function and purpose and its location in and benefit to a county do not necessarily make it a county purpose. See State v. Craighead County, 114 Ark. 278,169 S.W. Rep. 964; Wasson v. Wayne County Com'rs, 49 Ohio St. 622,32 N.E. Rep. 472, 17 L.R.A. 795, Livingston *Page 168 County v. Weider, 64 Ill. 427; Sleight v. People, 74 Ill. 47; People v. Scott, 9 Colo. 422, 12 Pac. Rep. 608. If this is not correct, then Leon County may levy taxes to maintain the State Capitol and other State buildings and grounds located in that county; Gadsden County may levy taxes to maintain the State Hospital located in that county; and so with Union, St. Johns, Jackson, Marion, Alachua and other counties in which State institutions or State property may be located. Location in and benefit to the county do not afford a complete test in determining whether a public improvement, e. g., a public road that is being constructed or maintained within a county, is a State purpose or a county purpose. Though daily used by the county, the streets of Tallahassee in Leon County are not thereby made a county purpose for which county taxes may be levied. Where, as here, the road is the property of the State being constructed independently of the county roads, with State funds, under State authority, as a part of a State system of public roads, over which county officials have no authority, the construction of the road is clearly a State purpose and not a county purpose, even though the road be located in a county and it is beneficial to the county. Even if the construction or maintenance of a public road may be both a State purpose and a county purpose within the meaning of the organic taxation provisions, the statutes of this State provide for a continuance of the county system of public roads under county authority and also make designated public roads between points in the State without reference to county lines or county roads "the system of State roads of this State," to be constructed with State funds, under State authority, wholly independent of and to the exclusion of county authority, thereby making the State system of public roads a specific State function and purpose as distinguished from a county function or purpose, and *Page 169 showing an intent that the State system of public roads shall be constructed as a State purpose and not as a county purpose. This being the primary and definite legislative intent, the legislation purporting to authorize the counties to contribute by taxation to the State purpose, was an incidental provision enacted apparently without due consideration of the express organic command that counties shall be authorized to "impose taxes for county purposes and for no other purposes." It must not be assumed that the legislature intended to violate the constitution; and as the main design of the lawmaking body,i. e., the construction of a State system of public roads, can be accomplished in due course without the incidental aid through county taxation that would violate organic law, the portions of the enactments that conflict with the constitution may be regarded as eliminated. The constitution requires "a uniform and equal rate of taxation" and commands the legislature to "provide for raising revenue sufficient to defray the expenses of the State for each fiscal year" (Sec. 2, Art. IX); and the construction of a State road involves a State expense. The permissive and discretionary authority purported to be given the county commissioners by Chapter 8553 Acts of 1921, in aiding State Road construction by taxation, necessarily impairs uniformity of taxation for State purposes.
The statutes contemplate that several years will be required for constructing the designated system of State roads and the funds for such construction are provided with this in view. A desire to aid in hastening the completion of State roads is commendable, but the construction of State roads by State authorities independently of the county system of public roads, is a State purpose and not a county purpose; and to give such aid to State roads through county taxation would violate the organic commands *Page 170 that the legislature shall provide sufficient revenue for State expenses, that taxation shall be uniform and that the counties shall impose taxes for no other than county purposes. Secs. 1, 2, 5, Art. IX Const.
In Cotton v. County Commissioners of Leon County, 6 Fla. 610, it was held that bonds issued under the Internal Improvement Act of 1855, by a county to purchase property, viz, stock of a railroad company organized to build a railroad through the county, was for a county purpose. The constitution of 1839 then in force did not contain the added words "and for no other purpose" that are in the present organic law; and the 1839 constitution contained a provision for "a liberal system of internal improvements," and did not forbid a county to become a stockholder in a corporation. See County Commissioners of Columbia County v. King, 13 Fla. 451.
The present constitution contains no provision as to internal improvements; expressly provides that a county may be authorized to impose taxes for county purposes "and for no other purposes," forbids a county to become a stockholder in a corporation. In the opinion in the Cotten case when discussing a "county purpose" under the taxation provision of the constitution it is well said: "Wisdom would counsel, that each case of this kind should be decided as it may arise, untrammelled by the decision of the preceding one." See also Skinner v. Henderson, 26 Fla. 121, 7 South. Rep. 464; City of Bradentown v. State, 88 Fla. 381, 102 South. Rep. 556; Stateex rel. v. Commissioners of Putnam County, 23 Fla. 632,3 South. Rep. 164.
As State roads are "the property of the State," and as the State has made provision for and assumed the obligation of constructing State roads as "the system of State roads of this State" (Chapters 9311 and 10270, Laws of Florida), such construction is thereby made a State purpose *Page 171 and a State expense to be provided for as required by Sections 1 and 2, Article IX of the Constitution. A separate system of county roads is established and being utilized in each county, and distinct and separate funds provided therefor. As the counties may be authorized to "impose taxes for county purposes and for no other purposes," it seems clear that a county cannot be authorized to impose taxes for a State purpose without violating the controlling organic law. This view accords with State ex rel. Milton v. Dickenson, 44 Fla. 623,36 South. Rep. 1045, 1 Ann. Cas. 122, 60 L.R.A. 539, where a general law attempted to require the counties to provide the State Troops in the respective counties "an armory" for State purposes. See also State v. L'Engle, 40 Fla. 392, 24 South. Rep. 539. The Constitution does not specifically limit State taxation to State purposes, and the statute authorizes the expenditure of State funds for "State Aid Roads," which are county roads. See Sec. 1197 Rev. Gen. Stats. 1920. See People ex rel. Chicago, B. Q. R. Co., 266 Ill. 63, 107 N.E. Rep. 249.
It is suggested that the construction of a State road in a county may also be a county purpose as it would be beneficial to the county. But the legislature has made the construction of a system of State roads a State function and purpose distinct from the county system, and it appears to be obvious that a county tax "to aid in the construction of a State road," that is "the property of the State" being constructed by the State for its purposes, would violate the express provisions that the county tax shall be "for county purposes and for no otherpurposes." This is inevitably so where the State roads are in addition to and distinct from the roads of the county system, even though the people of the county use the State roads in common with the general public. The public of the State use the *Page 172 county roads, but such use of county roads does not make them a State purpose. If the construction of a public road may be both a State purpose and a county purpose, it has not been so made by the legislature. Chap. 8553, Acts of 1921, attempts to authorize the county commissioners to donate to a State Board for a State purpose, county bonds to be paid for by county taxation. Such legislation plainly violates the express command of the constitution that the counties shall impose taxes "for county purposes and for no other purposes." Sec. 5, Art. IX.
It would hardly be contended that a county tax may legally be imposed to construct or to reconstruct or to maintain the driveway and walks in the capitol grounds at Tallahassee, though the people of the county use daily such driveway and walks for their private purposes wholly unconnected with any business with or for the State. The driveway and walks in the Capitol grounds are "the property of the State," and so are the State roads. The construction or maintenance of the one is as essentially a State purpose as is the other. The county system of public roads is preserved; and it is manifest that the legislature in providing for a separate system of State roads to be constructed by the State largely by excise taxes on gasoline and automobiles, and then attempting to authorize the counties of the State to impose property taxes, "to aid in the construction or maintenance of any State road," (Sec. 1, Chap. 8553 Acts 1921), did not give due consideration to the express organic provision that the counties may be authorized to impose taxes "for county purposes and for no other purposes"; and that the quoted organic provision was violated in enacting at least some of the provisions of Chapter 8553, Acts of 1921, which renders such provisions of the statute inoperative. It does not appear that the State roads here considered are designed to serve a distinct *Page 173 county purpose (Skinner v. Henderson, supra), if that would be material here. A system of public roads between widely separated points in the State, constructed by State authority with State funds, without reference to county lines or county roads, is essentially a State purpose and the constitution provides that "the legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year." Sec. 2, Art. IX. The expense of constructing a "system of State roads of this State" is a State expense and not a county expense. Chapter 8553 Acts of 1921, if otherwise valid, is not sufficient to amend Sections 1531 et seq. Revised General Statutes, under which latter statutes county bonds may be issued for county purposes. Neither Chapter 8553 nor any other statute provides for levying a county tax for constructing State roads, so there can lawfully be no such tax levy. Sec. 3, Art. IX Const.
The essential difference between the facts and the controlling law in this case and in Cotten v. County Commissioners of Leon County, supra, have been noted. In Stockton v. Powell, 29 Fla. 1, 10 South. Rep. 688, the waterway was not exclusively "the property of the State" and its improvement had not been assumed by the State as a State function and purpose, and the special statute had in effect designated the improvement as a county purpose. See also Stateex rel. Young v. Duval County, 76 Fla. 180, 79 South. Rep. 692. In County Com'rs of Escambia County v. Board of Pilot Com'rs of Port of Pensacola, 52 Fla. 197, 42 South. Rep. 697, the State had not assumed to itself as a State purpose or function, the burden that was by law put upon the county as a county function and purpose. In Rushton v. State ex rel. Collins, 75 Fla. 422,78 South. Rep. 345, the expenditure was for a service rendered the county in enforcing the law, which is made a county purpose and function *Page 174 by Section 9, Art. 16, Constitution as amended in 1894, Acts of 1893, p. 400. In Jordon v. Duval County, 68 Fla. 48,66 South. Rep. 298, a special statute authorized the county to erect on county property an armory building that could be used by the members of the State Militia in the county, subject to the control of the county commissioners, which made it a county function subject to county authority. In Dade County v. City of Miami, 77 Fla. 786, 32 South. Rep. 354, the county was required to pay to the city a portion of a county road tax that had been paid on property in the city. See Hillsborough County v. Stateex rel. City of St. Petersburg, 57 Fla. 50, 48 South. Rep. 976; County Com'rs of Duval County v. City of Jacksonville, 36 Fla. 196,18 South. Rep. 339. See State ex rel. Town of Kirkwood v. County Court of St. Louis County, 142 Mo. 575,44 S.W. Rep. 734.
In Getzen v. Sumter County, ___ Fla. ___,103 South. Rep. 104, the roads were apparently all county roads; the primary roads were in the original soft sandy soil and the need for hard surfaced roads was imperative; the valuations for tax purposes were very low; the resources of the county were being rapidly developed; the bonded debt of the county was being materially reduced and the taxable values were materially increasing. In this case the roads to be constructed are in greater part State roads and a part of "the system of State roads of this State," which State roads are being constructed under State authority by State funds derived in greater part from excise taxes on gasoline and automobiles; the county has an abundance of clay roads; the valuations for tax purposes are relatively very high; the bonded debt is not being materially reduced; the taxable values in the county are not greatly increasing; the State roads that are here designated to be aided by county taxation, practically parallel county roads that are in good *Page 175 condition and in constant use; and the particular additional State roads here considered are not essential to the development of the important resources of the county, the present county roads in proper upkeep being ample for that purpose, while the State roads here involved are designed mainly for through traffic to points beyond the county lines, all of which points are now reached by the daily use of good county roads to the county lines, connecting therewith other roads in daily use. In this case the State exclusively owns the State roads and has assumed the burden of their construction, thereby making such construction a State function and purpose. The State roads here considered do not connect public highways of the county and they are designed to serve not a county purpose, but a State purpose. The greater part of the mentioned State roads being distinct from and in addition to the county system of public roads, the organic intent that county taxes shall be imposed for no other than county purposes, and that taxation shall be equal and uniform, would clearly be violated if county taxes be imposed in the county to aid in the construction of State roads in the county that are wholly distinct from the county roads.
As to the roads that are "the property of the State" and are a part of "the system of State roads of this State" and are now being constructed with State funds under State operation as a system of public roads separate and distinct from the county system of public roads, the tax levy to pay the bonds and interest thereon to aid in the construction of such State roads would be for a State purpose and not for a county purpose, and would impose an unequal rate of taxation for a State purpose thereby violating Sections 1, 2 and 5 of Article IX of the State Constitution. The collective proposition to issue county bonds was acted on as an entirety, and if partly illegal the entire *Page 176 proposition should fail. Essential portions of the collective proposition that was submitted and voted on have been changed in substance and purpose by legislative or other official action, and at least some of the bonds, even if otherwise lawfully authorized, cannot be used for the specific object designed by the county commissioners and the voters. Some of the roads designated are State roads and not county roads; and as such State roads are being now constructed by the State as a State system distinct from the county system, the proposed greatly increased tax burden for a State purpose is an unauthorized exercise of the taxing power that a majority vote of the electorate does not legalize. See State ex rel. Potter v. King County, 45 Wash. 519, text 528, 88 Pac. Rep. 935; Allen v. Louisiana, 103 U.S. 80.
"A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubt upon that score." United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup. Ct. Rep. 658; Attorney General of the United States v. Central R. Co. of New Jersey,213 U.S. 366, 29 Sup. Ct. Rep. 527; Beander v. Barnett, 255 U.S. 224,41 Sup. Ct. Rep. 271; Bratton v. Chandler, 260 U.S. 110,43 Sup. Ct. Rep. 43; Federal Trade Commission v. American Tobacco Co.,264 U.S. 298, 44 Sup. Ct. Rep. 336; United States v. American Brewing Co., 251 U.S. 210, 40 Sup. Ct. Rep. 139; City of Jacksonville v. Bowden, 67 Fla. 181, 64 South. Rep. 769; In re Seven Barrels of Wine, 79 Fla. 1, 83 South. Rep. 627; Burr v. Florida East Coast R. Co., 77 Fla. 259, 81 South. Rep. 464; Langford v. Odom, 77 Fla. 282, 81 South. Rep. 469. See also Commissioners of Johnston County v. Lacy, 174 N.C. 141,93 S.E. Rep. 482, 2 A. L. R. 726.
The statutory authority given to the county commissioners of a county to establish and maintain "any road or *Page 177 highway in their respective counties" (Sec. 1475 Rev. Gen. Stats.) and to issue bonds "for the purpose of constructing paved, macadamized, or other hard-surfaced highways," (Sec. 1531 Rev. Gen. Stats.) must have reference to roads or highways that are maintained under the authority of county commissioners for county purposes as distinguished from State highways that constitute "the system of State roads" that are "the property of the State" constructed with State funds under State authority for State purposes; since it must be assumed that there was no legislative intent to violate the organic law which forbids county taxation for other than county purposes.
The provision of Chapter 8553, Acts of 1921, that any county is authorized to aid in the construction or maintenance of any State road by contributions to the State Road Department of cash, bonds, c., including county road bonds which have been or which shall hereafter be voted by the people of the county, to be used in the construction or maintenance of any State road, involves the imposition of a county tax upon property in the county for a distinctly State purpose; and even if Chapter 8553, Acts of 1921, is sufficient to amend the statutes under which county bonds may be issued, it is in conflict with the provisions of the constitution that no tax shall be levied except in pursuance of law, that the legislature shall provide revenue for State expenses, that taxation shall be uniform and that counties shall not impose taxes for other than county purposes, which conflict of the legislative provisions with organic law, renders the legislation inoperative and the action of the county commissioners unauthorized, the constitution being paramount to control the action of the legislature and of the administrative officers as well as of the courts. A donation of "county road bonds" involving county taxation to aid in constructing State roads is *Page 178 an obvious violation of the organic provision that counties may impose taxes only for county purposes.
The county commissioners assume authority to issue county bonds "for the purpose of constructing and aiding in the construction of paved, macadamized or other hard surface highways in the county," to-wit: designated State roads and designated county roads in the county, by virtue of Section 1531, Revised General Statutes of 1920, which gives authority to issue county bonds "for the purpose of constructing paved, macadamized, or other hard-surfaced highways" and by virtue of Section 1, Chapter 8553, Acts of 1921, which purports to authorize any county "to aid in the construction or maintenance of any State road by contribution to the State Road Department of cash, bonds, time warrants, or other thing of value in the construction or maintenance of roads," including "county road bonds" which have been or may be voted by the people of the county. This claim of authority as to aiding in the construction of State roads is manifestly untenable for several imperatively controlling and obvious reasons, viz:
1. Section 1531, Revised General Statutes of 1920, authorizes county bonds for county roads and not for State roads.
2. Chapter 8553, Acts of 1921, if not invalid because it contains plural subjects in its title and in its body in violation of the first clause of Section 16, Article III of the constitution, the chapter does not purport to amend Section 1531, Revised General Statutes of 1920; and if it does so purport, it is ineffectual because the section is not "reenacted and published at length" as required by the last clause of Section 16, Article III.
3. If Chapter 8553 by implication amends Section 1531, Revised General Statutes of 1920, it is ineffectual because Chapter 8553 does not provide for issuing bonds, and *Page 179 neither chapter 8553 nor any section of the Revised General Statutes of 1920, provides for levying a tax to pay the interest and principal of county bonds to aid in the construction of State roads, and Section 3, Article IX, of the constitution provides that "no tax shall be levied except in pursuance of law."
4. As county bonds require county taxes to pay the bonds and as the greater part of the proposed county bonds are to construct and aid in the construction of State roads which is a State purpose and not a county purpose, the levy of a county tax for that purpose, even if there were a statute authorizing it, would violate the express provision of Section 5, Article IX of the constitution that counties shall be authorized to "impose taxes for county purposes, and for no other purposes."
5. State highways are State property, constructed under State authority and for a State purpose, wholly distinct from a county purpose, which makes such State highways a subject of State expense; and Section 2, Article IX, of the constitution commands that "the legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year."
6. Section 1, Article IX, of the constitution requires "a uniform and equal rate of taxation;" and the permissive and discretionary authority given the county commissioners by Chapter 8553, Acts of 1921, even if otherwise valid, inevitably impairs uniformity and equality in taxation for a State purpose.
7. In view of the organic limitations upon the taxing power, the proposed county bond issue involving county taxation for a State purpose, would deny to the taxpayers of the county the equal protection of the laws and would otherwise violate rights secured to the citizens of the *Page 180 county by express provisions of the State constitution, and of the Fourteenth Amendment to the Federal Constitution.
The legislature may validate administrative acts that it could have authorized (Charlotte Harbor N. R. Co. v. Wells,78 Fla. 227, 82 South. Rep. 770; Charlotte Harbor N. R. Co. v. Wells, 260 U.S. 8, 43 Sup. Ct. Rep. 3; City of Jacksonville v. Basnett, 20 Fla. 525; Givens v. Hillsborough County, 46 Fla. 502,35 South. Rep. 88; Cranor v. Volusia County Com'rs,54 Fla. 526, 45 South. Rep. 455; Anderson v. City of Ocala,83 Fla. 91 South. Rep. 182); but acts that could not lawfully be authorized by statute, cannot be validated by legislation (State ex rel. Nuvenn v. Greer, 88 Fla. 249,102 South. Rep. 739, text 747; 12 C. J. 1091; 15 C. J. 627; Ellis v. Northern Pac. R. Co., 77 Wis. 114, 45 N.W. Rep. 811, and as in view of the organic provision limiting county taxation to county purposes, the legislature was without power to authorize the issue of county bonds involving county taxation to aid in the construction of State roads, which is a State purpose and not a county purpose, the legislature is likewise without power to validate an issue of county bonds for the State purpose, therefore the enactment of Chapter 10788, Acts of 1925, purporting to validate the bond election is a mere irrelevancy.
The resolution of the county commissioners submitted "to the legal voters of said county, the question whether such bonds shall be issued," such election to "be conducted as near as may be in the manner provided for conducting general election." It also appears that "a majority of the votes cast at said election was for bonds." Chapter 9294, Acts of 1923, limits the electorate in the county bond elections to "free holders" who are otherwise qualified as voters in the county. A compliance with the statute is material, but does not appear. See Anderson v. City of Ocala, *Page 181 87 Fla. 257, 99 South. Rep. 667; 15 C. J. 595; Bullock v. Curry, 2 Metcf. (Ky.) 171.