This is a companion case to State of Florida, ex rel. O.J. Harrell, et al., as Board of County Commissioners of Washington County, v. Fred P. Cone, J.M. Lee and W.V. Knott, et al., as State Board of Administration, decided this date. There is this difference in the factual situation. In the latter case, it was shown that Washington County had been reimbursed under Chapter 15659, Acts of 1931, for all the funds it had advanced to the State for the construction of State roads therein and that the Act relied on, Chapter 17967, Acts of 1937, amended Chapter 15659, by requiring that henceforth all funds accruing to said county be placed to the credit of its Road and Bridge Fund for the repair and construction of roads in the county.
In the present case, it is shown that Gadsden County has not been reimbursed under Chapter 15659, Acts of 1931, for all the moneys it advanced to the State for the construction of State roads therein, but that there exists a surplus to the credit of the county over and above that required to pay interest and retirement on its indebtedness incurred in behalf of the State for the construction of State roads. The Act relied on in this case, Chapter 15890, Acts of 1933, amends Chapter 15659 by requiring that said surplus only be paid to the Board of County Commissioners of Gadsden County for "use in the construction and maintenance of public roads within such county or such other county purposes as said Board of County Commissioners may by resolution determine."
In our view, that part of Chapter 15890 which authorizes *Page 750 the Board of County Commissioners to use any part of the surplus transferred to it for "such other county purpose as said Board of County Commissioners may by resolution determine" is invalid and cannot be enforced because it attempts to divert the proceeds of a State tax to a county purpose contrary to the purpose and intent of Chapter 15659, Acts of 1931, by which it was imposed. It is accordingly eliminated. In so far as allocated to the Board of County Commissioners for "use in the construction and maintenance of public roads within Gadsden County" the Act is good and enforceable because consistent with the purpose of the parent Act.
All other questions raised are similar to those presented in State of Florida, ex rel. O.J. Harrell, et al., as Board of County Commissioners of Washington County, v. Fred P. Cone, J.M. Lee, W.V. Knott, et al., as State Board of Administration, decided this date and are concluded by what we said in that case.
It follows that the motion to quash the alternative writ is denied and because this results in an equal division the motion for peremptory writ is denied.
It is so ordered.
WHITFIELD and CHAPMAN, J.J., concur.
ELLIS, C.J., dissents.
BROWN and BUFORD, J.J., dissent in part.