The act under review raises the following important question: Can the legislature, without conflicting with the constitution, levy and collect a State excise tax on the sale of gasoline for the purpose, so far as the *Page 371 proceeds of such tax may annually go, of reimbursing the counties and special road and bridge districts for the moneys expended by them in the construction, or in aid of the construction, of public roads within such counties and districts, which roads had either theretofore been designated as State roads or were subsequently taken over by the State, and all of them now firmly welded into the State system of public highways? For the reasons so well stated in the able opinions of JUDGE CAMPBELL and MR. JUSTICE WHITFIELD, I think the legislature had this power, and I know of no provision in our constitution which would prevent its exercise.
It might seem from the language used in section 7 of chapter 15659, that it is in conflict with the previous holdings of this court that certain of these roads were constructed by the counties for county purposes, which they undoubtedly were. But this apparent conflict is more seeming than real, growing out of the dual character of public roads, which by their very nature serve local as well as general, county as well as State, purposes.
It is true, the counties constructed or aided in the construction of these roads as being for county purposes, and issued bonds and levied taxes to pay for them by virtue of statutes authorizing them so to do, which statutes were held valid under section 5 of Art. IX of the constitution which provides that the legislature may authorize the several counties to assess and impose taxes for "county purposes," and "for no other purposes." But this court held that the construction or improvement of a public road, located within and furnishing a public benefit to the particular county, might constitute a county purpose for that county within the meaning of the constitution, even though such road might also benefit the State and serve a State purpose, and that this rule would apply even as to roads which had been designated by the legislature as State roads and which would after construction become the property *Page 372 of the State, Lewis v. Leon County, 91 Fla. 118, 107 So.2d 146; Jackson Lumber Co. v. Walton County, 95 Fla. 632, 116 So.2d 771. The constitution does not limit the power of the legislature to authorizing the counties to impose taxes for purposes which areexclusively county purposes. If it had done so, we would have had practically no roads whatever in this State up to a few years ago. As was pointed out in the above cited cases, the construction of a public road within a county may constitute a dual purpose, that is, it may constitute a county purpose in spite of the fact that it may also serve a State purpose, which principle was firmly imbedded in the history, the statutes, the judicial decisions and the public policy of the State from its very beginning.
Some of the earlier cases decided by this court illustrating the dual character and purpose of public roads and certain other improvements, which were nevertheless held to constitute legitimate county purposes, are: Cotten v. County Commissioners of Leon County, 6 Fla. 610; Skinner v. Henderson, 26 Fla. 121,7 So.2d 464; Stockton v. Powell, 29 Fla. 1, 10 So.2d 688; Duval County v. Jacksonville, 36 Fla. 196, 18 So.2d 339; County Commissioners of Escambia County v. Pilot Commissioners,52 Fla. 197, 42 So.2d 697; Jordan v. Duval County, 68 Fla. 48,66 So.2d 298. One of the most interesting of the above cited cases is that of Stockton v. Powell, which dealt with a project which constituted a triune purpose. That case involved the validity of an act adopted in 1891 authorizing the county of Duval to improve the navigation of the St. Johns River within the boundaries of the county and to issue bonds for that purpose. It appeared that the proposed improvements served not only a county purpose, but also a State and National purpose as well. The bill filed to enjoin the issuance of the bonds alleged that the St. Johns River was a navigable stream and public highway, running from its source 200 miles South of Jacksonville through several *Page 373 other counties and thence through Duval County to the Atlantic Ocean, affording the means of transportation for not only local, but also for interstate and foreign commerce; that the National government had spent and was spending large sums of money in improving the navigation of the river and to remove obstructions therefrom, and that the general control of the river for purposes of navigation and commerce was vested in and being exercised by the general government of the United States, whereas the commerce and business on the river confined within the limits of Duval County was small and of no great importance. Yet this court, in a well considered opinion written by Mr. Chief Justice Raney, held the statute constitutional, on the ground that, in spite of the fact that the improvement of the river would benefit State and foreign commerce, nevertheless the improvements were to be made on that part of the river situated in Duval County and afforded a means of travel and transport to the people of the county, and that so far as Duval County was concerned the legislative determination that the proposed improvements constituted a county purpose would not be disturbed by the courts; that to hold otherwise would be a usurpation by the courts of legislative functions. By the same reasoning, the court would have upheld the constitutionality of the statute if it had authorized the State to construct the proposed improvements at State expense to be paid for with funds raised by State taxation, for the improvements were of such a nature as to constitute a State as well as a county benefit.
Up to about ten or fifteen years ago, the only roads which the State had were county or district roads, constructed and maintained by the counties or special road districts, without State aid. The State Road Department was created in 1915, but was given very little power or resources until several years later. And yet throughout all this early period of county responsibility for road construction *Page 374 and maintenance, this court always recognized the fact that the legislature retained and could exercise, when desired, a sovereign interest in and plenary control over all public highways in the State; and undoubtedly most of the more important roads which were constructed by the counties in those early days served a State as well as a county purpose. Even when the need for hard-surfaced highways began to be felt, the State for some years continued the policy of leaving the burden of furnishing them entirely upon the counties. Thus, in 1899, a general statute was adopted, authorizing the counties to raise money by bond issues, and to impose taxes to pay them, for the purpose of constructing paved, macadamized or other hard-surfaced roads, when approved by the legal voters of the county in an election held to determine their wishes in the premises. Under this statute many serviceable and important hard-surfaced roads were constructed by the counties at county expense with great benefit to the entire State. Surely these roads, while constituting a county purpose, did not constitute an exclusively county purpose. The dual purpose of public roads was further recognized by the Act of 1921, adopted after the establishment of the State Road Department, which authorized the counties to contribute to the construction of State or State aid roads within their respective boundaries. This act was held valid by this court in Lewis v. Leon County, supra, in which the previous decisions of this court bearing on the question were reviewed.
Thus we see that for many years the State saw fit to follow the policy of imposing the burden and cost of public road construction and maintenance entirely upon the counties and road districts. During this period the use of public roads was for the most part predominantly local. If a person desired to take a trip of any considerable distance, he used the railroads. Then came the general use of the automobile, and a marked increase in through or long distance *Page 375 traffic, and a strong public demand for improved hardsurfaced highways. The State then entered the field of road construction and maintenance, slowly at first, but very actively during the past six years. The State's constitutional right to construct and maintain public roads has never been seriously questioned. See Cooley on Taxation, section 204. For several years the State revenues were not equal to the task of constructing all the improved highways that were needed and eagerly desired by the counties, and by statute the State authorized and accepted aid from the counties, or such of them as saw fit to grant it, in the construction of highways within such counties which had been designated as State or State Aid roads. No one dreamed at that time that the State would ever make any reimbursement for such aid. Gradually the State revenues for road building were increased, and the need for county aid decreased. Meanwhile hard times came and the counties which had seen fit to construct or aid in the construction of roads which had been designated as State roads, or which after construction had been taken over by the State, began to feel very keenly the burden of the debts they had incurred in financing such construction.
Thus, beginning with county construction of all public roads at county or local expense, followed by State construction of some roads with county aid and the taking over by the State of many roads constructed by the counties, and latterly by a large amount of State construction without county aid, we have secured, to the benefit of the State and its people generally, as well as to the counties through which such State roads pass, an extensive, connected and co-ordinated system of State roads, which have become the property of the State, and under its exclusive management and control. This evolution has gone on before our very eyes and with legislative authority. It is a matter of common knowledge. What everybody knows, the courts are presumed to know. The increase in volume of general *Page 376 or through traffic on these formerly county or locally built highways that have thus been taken over by the State has gone on to such an extent that such through traffic-interstate as well as intercounty — probably now largely predominates, in most counties, over the purely local or intracountry traffic. Thus, while the roads now forming the State system still serve local county purposes in the respective counties through which they pass, they also have come to serve a general and State purpose to such a marked degree as to render it reasonably within the purview of the legislative power to adopt as a public policy and to declare by statute, as they have done by the statute here under review, that these roads have become State roads, serving a State purpose, and that the counties should be reimbursed out of the proceeds of a State excise tax for the moneys they had expended in the construction, or in aid of the construction, of such roads so taken over by the State. The legislature has perhaps as much latitude in determining what constitutes a State purpose (Cheney v. Jones, 14 Fla. 587) as it has in determining what constitutes a county purpose, and as to the latter this court has several times held that it will not hold the legislative determination ineffectual unless the particular enactment violates some provision of the Constitution or "no legal or practical relations whatever to any county purpose." Jordan vs. Duval County, 68 Fla. 48,66 So.2d 298; Stewart v. Special Road Bridge Dist., 71 Fla. 158,71 So.2d 42, and cases cited.
But when, under statutory authorization, the counties constructed these roads within their respective boundaries which were subsequently taken over by the State as a part of the State system, or when they contributed to the expense of constructing roads within their boundaries which had been designated by the legislature as State or State aid roads and which after construction became the property of the State, the counties were acting voluntarily for *Page 377 their respective county purposes, and as to each county, to theextent of its participation, the construction work was for a county purpose, and the bonds which the respective counties issued for such purposes were strictly county bonds. There mere fact that the improvements thus constructed also ministered to the general welfare of the State, and have since been taken over by the State, and the further fact that the State itself might have done all this road construction in the first instance without county aid, if it had seen fit to do so, does not change the fundamental fact that the counties were at the time acting primarily for their own interests and for legitimate county purposes. Hence, by their action, the counties, under legislative authority, elected to and did establish the status of these road construction projects, tothe extent of their participation therein, as county projects,so far as the counties were concerned, and the bonds issued by the counties to finance these projects were strictly and solely county obligations, for which the State was and is in no wise responsible. This was pointed out by Mr. JUSTICE STRUM in his very able and illuminating opinion in the case of Amos v. Mathews, 99 Fla. 1, 126 So.2d 308. Therefore, if the act here under consideration had said that such road building work done by the counties and districts constituted an exclusively State purpose, such an expost facto declaration would not only have been incorrect as a matter of fact, but it would also have been in conflict with our previous decisions, and entirely without legal effect upon the validity of the bonds thus issued by the counties and validated by the courts. Both the State and Federal Constitutions prohibit the passage of any law impairing the obligations of contracts. However, the act merely says that such road construction was and is for a State purpose, which it was and is, but, as we have seen, it was also for a county purpose as well, and justified county action in that behalf. Lewis v. Leon County, supra. It is the failure to recognize this duality of use *Page 378 and purpose in the construction of public roads which had caused some confusion and difficulty in dealing with this subject. It necessarily follows, from what has been said, that, under sections 2 and 6 of Art. IX of the constitution, the State cannot levy State taxes for the purpose of paying, as a State expense, the bonds thus issued by the counties and road districts.
But the act here under review does not purport to levy a State tax and appropriate the proceeds for the purpose of paying county and district bonds. The distribution to the counties provided for by the act is not made on that basis. The act sets forth the appropriation or distribution to the counties of the proceeds of three cents of the excise tax, as provided for in this act, briefly as follows: One-third in proportion to area; one-third in proportion to population, and the remaining one-third in proportion to the amount expended by the several counties and road districts within such counties for the construction of roads within their respective boundaries which were then or thereafter made a part of the now existing State highway system. The controlling question presented is whether it was within the constitutional boundaries of the legislative power to make such an appropriation or distribution to the counties from funds raised by a State excise tax, particularly an excise tax on gasoline used generally as a motive power for travel and traffic over the public roads of the State.
Section 2 of Art. IX of the constitution says that the legislature "shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year." But the legislature has, under the former decisions of this court, a wide latitude in determining what shall be a State expense. In Cheney v. Jones, 14 Fla. 587, this court said that this language "includes such expenditures as may be authorized by the legislature and which are not prohibited by the constitution." There is nothing in the constitution that prohibits the legislature from adopting *Page 379 as a State expense the appropriation to the counties of a portion of the proceeds of a State excise tax for the purposes and on the basis set forth in this act. Though these roads were constructed by the counties and districts for local purposes, they have, as above stated, in the course of events, since become parts of a co-ordinated State-wide system of highways, which the State had the power to have initially constructed at State expense, and the use of which has become more and more general, as compared with local, in its nature, and if the legislature deems it a wise public policy to now adopt this method of gradually re-imbursing the counties and districts for the amounts thus expended by them on such roads, as a State expense, there is in our opinion nothing in the constitution, for the reasons above pointed out, which would justify the courts in holding such policy unconstitutional and void, regardless of the wisdom vel non of such policy, and regardless of the use to which the moneys thus appropriated to the counties is put after the distribution thereof to the counties is completed and the amounts reimbursed have become county funds. If the allocation or appropriation to the counties for value thus received is valid, and the funds become valid county funds, then under authority of the case of Amos v. Mathews, supra, decided two years ago, the legislature has authority to require the application of such funds to the payment of county and district debts, whether evidenced by bonds, or otherwise, without conflicting with section 6 of Art. IX prohibiting the State from issuing bonds. In so doing the State does not use the funds to pay county bonds, and does not obligate itself in any way to pay any bonds or debts. There is nothing to prevent the legislature from changing the application of these county funds at any time to any other lawful county purpose, nor is there anything to prevent the legislature from discontinuing the tax, or the distribution of a portion thereof to the *Page 380 counties or the application of the proceeds, at any time it sees fit.
In Cooley on Taxation, section 188, it is said:
"It is not inconsistent with this doctrine of judicial review that in every instance the highest consideration should be paid to the determination of the legislature that a tax should be laid. It is not lightly to be assumed that its members have come to the examination of the subject with any other than public motives, or that they have failed to give it due investigation or reflection. The presumption on the other hand must always be that they have considered it with honesty and fair purpose, and that their action is the result of their deliberate judgment. And with all these presumptions tending to support the legislative action, it would seem but reasonable and proper that the courts should support it when not clearly satisfied that an error has been committed. There is a presumption in favor of the validity of the tax. This is the general rule in constitutional law when the validity of legislation is involved, and it is applicable with peculiar force to the case of a legislative decision upon the purpose for which a tax may be laid, since there is no such thing as drawing a clear and definite line of distinction between purposes of a public and those of a private nature."
And in section 1813 of the same standard text book on taxation it is said:
"After taxes have been collected, their apportionment and distribution are largely regulated by statute. * * * * * * Where not regulated by the constitution, the legislature has a wide discretion as to the application of the proceeds of a State tax. * * * * * * * * If this discretion is unwisely exercised, the remedy is with the people, and not with the court."
The views herein above expressed are not, as we see it, in conflict with the decision or the opinion of this court in Amos v. Mathews, supra, in which opinion the writer concurred. The act here under review is essentially different from the act construed in the case of Amos v. Mathews.
The question, then, as to whether the State shall reimburse *Page 381 the counties and road districts for the cost of those roads constructed by them which the State has taken over and made a part of its general State road system, is a question of public policy, the determination of which falls within the broad domain of the legislative power, which may adopt such measures as it sees fit so long as it does not conflict with the provisions of the State or Federal constitutions. It might be observed that if these roads had been constructed and owned by private individuals, the State could not have taken them for public use without paying just compensation therefor. While the State can, without paying for them, take over roads from its political subdivisions which the latter have built at their own expense when the legislature deems it necessary to weld them into its State-wide system of highways, the use of the roads having become so general in its nature and the interest of the State therein having become so vital and predominant in character, the fact remains that there is nothing in the constitution, as we understand the provisions of that fundamental instrument, to prevent the legislature from reimbursing such subdivisions for the moneys they have heretofore spent in constructing such roads. The wisdom and fairness of such a policy is a question for the legislature, and not for the courts. If the public policy thus adopted is not or does not prove to be wise, the remedy lies with the people, through their legislative department. It is not within the province of the courts to set aside the legislative determination on grounds of wisdom or public policy so long as the constitution is not violated. While it is the highest duty of the courts to enforce the principles of the constitution, they should be careful not to invade the domain of the legislative department. Constitutional principles do not change, except as they may be altered by the people through constitutional conventions or by amendments made in the manner prescribed by the constitution. The constitution does not mean one thing yesterday or today and another *Page 382 tomorrow. But while constitutional principles do not change, sometimes conditions do change and new and different conditions arise, and new statutes are enacted to deal with them, and constitutional principles must be applied to such new statutes and conditions as they arise, fairly, intelligently and impartially. The principles of the constitution must be preserved at all hazards, in all their pristine vigor and purity, and the language in which they are expressed given its plain and obvious meaning and true intent, uninfluenced by any spirit of expediency or opportunism. Euclid v. Ambler Realty Co., 272 U.S. 365, 71 Law ed. 303. But in applying such principles to new or changed conditions, the courts should fearlessly face the facts — the actualities and realities of the situations and questions thus presented, and apply the principles of the constitution to them without any sacrifice whatever of such principles, and without any strained construction of the language in which those principles are expressed. We have endeavored to consider the questions here presented from the standpoint above outlined.
As to the question raised concerning the validity of the passage of the act through and by the legislature, under the decisions cited in the opinions of JUDGE CAMPBELL and MR. JUSTICE WHITFIELD, the majority of the court, including the writer, reached the conclusion that the act was constitutionally adopted and the petition for rehearing does not present any point in that connection which has not already been considered. See also in this connection 26 Am. and Eng. Encyc. of Law, 541-2; 36 Cyc. 955 and 25 R. C. L. 880.
For the reasons herein above given, as well as those stated in the opinions of JUDGE CAMPBELL and MR. JUSTICE WHITFIELD heretofore filed, we adhere to the conclusion heretofore arrived at that the act here in question is valid and constitutional, and the petition for rehearing is therefore denied. *Page 383
Petition for rehearing denied.
WHITFIELD, AND TERRELL, J.J., AND CAMPBELL, Circuit Judge, concur.
BUFORD, C.J., AND ELLIS, J., dissent.