State ex rel. Milton v. Dickenson

Mabry, J.

dissenting.

I do not concur in the conclusion and views of the court in this case. The sole question involved is the constitutionality of section 27 of the act of 1899, Chapter 4684, “to provide for and encourage the organization of a corps: corps of volunteer militia for service as a land force, and to enforce the discipline therein,” and to repeal certain' prior laws on the subject.

The motion to quash the alternative writ is on the grounds that the section of the statute referred to is unconstitutional because in contravention of (a) section 5, Art. IX, (b) section 20 and 21, Art. Ill, (c) Art. XIV and (d) section 16 Art. Ill of the constitution of the State. After a reference to various provisions of the constitution the conclusion in the opinion prepared by the Chief-Jus,tice is that the section of the statute referred to is in conflict with section 5, Art. IX of the constitution, though mention is made in connection therewith of section 1 of said Article. The view expressed by Mr. Justice Carter, in agreeing to the conclusion reached, is that the *637direct conflict of the designated section of the statute is with section 1, Art. IX of the constitution. I will make no reference to sections 16, 20 and 21, Art. Ill, as it appears they have exerted iio influence in the conclusion reached:

The fifth section of Art. IX of the constitution provides, in reference to county taxation, that the legislature shall .authorize the several counties in the State to assess and impose taxes for county purposes, and for no other purposes. The liniitation concained in this section is on the power of the legislature to authorize counties to levy taxes for other than county purposes. If the authorized tax is .for a county purpose, then there is'no liniitation so far as -this section is concerned. The constitution does not undertake to define what are “county purposes,” and as safti *by this court in Stockton v. Powell, 29 Fla. 1, 10 South. Rep. 688, the authorities have formulated no generally accepted definition of such purposes, but leave each case involving the question to be decided as it may. arise. In Gotten v. County Commissioners of Leon County, 6 Fla. 610, this court said in construing a similar constitutional provision, “that the constitution does not attempt to give a definition of the term ‘county purpose,’ and to -obtain a correct interpretation of that phrase we must look to the contemporaneous legislation upon that subject and -the uniform action of the county courts under the -territorial government.” And in Stockton v. Powell it is said, “in somewhat the same strain Judge Cooley in treating of what constitutes public purposes for which taxation may be levied, says in his work on taxation (2nd ed.) p. 116, that in deciding whether in a given case the object for which the taxes are assessed is public or private, the courts must be governed mainly by the course *638and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support, and for the proper use of the government, whether State or municipal; that whatever lawfully pertains to this, and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.”' It was held, in that case that the act of the legislature authorizing Duval county to issue bonds to improve the navigation of the St. Johns river was valid, although the river wás a navigable stream and public highway running from its mouth in the county hundreds o£ miles beyond its limits through other counties, and commerce was carried on it from other States and for-, eign countries, and the commerce or business on the river confined within the limits of Duval county was very small and of no importance.’ The cases of Skinner v. Henderson, 26 Fla. 121, 7 South. Rep. 464, and County Commissioners of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339, recognized the authority of the legislature to direct the application of funds raised by county taxation to objects that were embraced within the terms “county purposes,” though such objects might also include in part other purposes. In the case of Cotten v. County Commissioners, supra, it was held that neither the locality of the work, nor the anticipated benefit is of itself a certain test, but as furnishing a general rule the concurrence of the two would seem to be required. The views expressed in Nichol v. Mayor and Aledrman of Nashville, 9 Humph. 251, were approved, to the effect that the improvements must have some connection with the corpo*639rate town claiming them as a corporate purpose more direct than that which would result from the general increase of prosperity of the country by reason of such improvement made without a direct reference to or connection with the town. In the case of Board of Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109, a case characterized by Judge Dillon, as observed by this court in Stockton 1. Powell, as one in which the distinction between cities ánd towns, or municipal corporations proper, and involuntary quasi corporations, such as counties, is very clearly drawn, it is said “a county organization is created almost exclusively with a view to the policy of the State at large for purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of'travel and transport, and especially for general administration of justice. With scarcely an exception all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are in fact but a branch of the general administration of that policy.” 'The word “county” signifies the same as “shire”—county being derived from the French, and shire from the Saxon. Both these words signify a circuit or portion of the realm into which the whole land is divided for the better government thereof, and the more easy administration of justice.” I Bouv. Law Dictionary, Rawle’s Revision, p. 450. It is the settled rule of constitutional construction in this court that if there is a reasonable doubt as to the constitutionality of an act of the legislature it should, in deference to the legislative judgment, be upheld, and this rule of construction should! apply specially, to a legislative declaration of what is a county purpose. County Commis*640sioners of Duval County v. City of Jackspnville, supra; State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South. Rep. 767. In view of these authorities and the past legislation in this State I do not think it should he held, that the section of the statute in question is in conflict with the fifth section of Art. IX of our constitution. The second section of Article XIV ordains that “the' legislature may provide by law for organizing and disciplining the militia of the State, the encouragement of volunteer corps, the safe keeping of the public arms and for a guard for the State prison.” Ail able bodied male inhabitants of the State between the ages of eighteen and forty-five years, that are citizens of the United States, 'or have declared their intention to become such, are constituted the militia of the State and subject to military duty. They are ascertained and enrolled by the county authorities in each county. The act of 1899, Chapter 4684, provides for a volunteer organization to consist of not more than two regiments of infantry of twelve companies each, and one battalion of artillery of four batteries of field artillery, to be knov n as- the Florida State Troops. The organization under it is' by 'the Commander-in-Chief and based in part upon the volunteer organizations existing under prior laws. Of the existing organizations, two regiments of three- battalions each, one to contain four companies, and the others three companies each, were to be organized, and the additional companies provided for were to be added at such times as the Commander-in-Chief might deem advisable. At no time could the enrolled militia organize and become a part of the volunteer corps of State troops at will, but the organization and admission of a military company into such body have been under the control and direction of the Commander-*641in-Chief. The policy of the State as evinced by the course of action in reference to voluntary organizations is to enlist companies in the populous districts of the State where violence, riots and forcible resistance to the execution of the laws are more liable to happen, and where there is . the greatest need for an armed force. When an organized company has been accepted and duly admitted into the body of State troops, it- niay be required to do service in the preservation of the peace, the execution of the laws, and the suppression of insurrections and invasions. The forty-second section of the act provides that “when an invasion of, or insurrection in, the State is made or threatened, or whenever there exists a riot, mob, unlawful assembly, breach of the peace, or resistance to the execution of the laws of the State, or imminent danger thereof, and the civil authorities are unable to suppress the same, it shall be the duty of the Commander-in-Chief, or in case he can not be reached, and the emergency will not admit of awaiting his orders, it shall be the duty of the Adjutant General to issue an order to the officer in command of the nearest body of State troops, commanding such officer to call out the troops under his command and proceed with all possible promptness to suppress the same.” But it is contended that such services are rendered for the State, and the military organization rendering them being a part of a State institution, the burden of- maintaining and supporting it devolves upon the State at large. If it be conceded that the construction of local armories in counties for the use of volunteer, companies therein is a county as well as a State purpose (and clearly the suppression of riots, mobs, the preservation of the peace, and assistance in the execution of the laws subserve county *642organizations and purposes), there is nothing in section 5, Art. IN of the constitution to prevent county taxation to accomplish it. The only limitation therein is in the power of the legislature to authorize county taxation, for other than county purposes, and conceding such purpose the power exists. If the building of local armories in the counties in which military companies exist is exclusively a State institution and one of the general charges, of the State government for the maintenance of which taxes should be imposed as equally as possible on all the property of the State, the prohibition against county taxation to build them is to be found in section one of the ninth article. But I do not think that a local armory constructed by a county in its limits for the use of a volunteer military company domiciled therein is a State institution. The provision held to be unconstitutional makes it the duty of the county commissioners of any county in which there is a military company of State troops to provide each company with an armory suitable for its meetings and drill and the safe storage of its arms. This armory is for the use in the county by a company in aid of its efficiency for prompt and effective service, and is not made the property of the State, or subject, to the control of State authorities. There is no purpose in the act to impose by county taxation the burden on the counties, as such, to maintain the organized militia of the State. All the expenses incident to such organization, including those of the stated encampments of the State troops, except the building of armories in the counties, are borne by the. State at large. For-a period of thirty-five years the construction of such armories for use by companies in the counties has been regarded by the legislature as a county purpose.. Almost contemporaneous with the con*643stitution of 1868, containing provisions as to military organizations similar to those found in the present revision, it was provided by the legislature that the county commissioners should provide at the cost of the counties suitable and safe armories for the volunteer companies within their respective limits. Section 20, Chap. 1638, Acts of 1868. From that time to the present similar provisions have been kept continually on our statute books. The existence of a voluntary company in a county has a direct contact and connection with it, and affords a special and more direct protection in case of emergency to the lives and property of its inhabitants than would be afforded by a company in another and possibly distant county. In view of this special benefit resulting to the counties in which 'companies are organized and exist, it would appear that there was ample basis for a legislative declaration that the construction of armories in a county for the use of companies therein was a county purpose. It is imminently proper and just that populous districts where lawlessness, riots, mobs and the resistance to the laws are more apt to occur, and which demand the existence of military organizations therein, should defarv the expense of providing; a storage room for the arms and a meeting place for the efficient training of the men who may he called on to render their special services. Matter of Bryant v. Palmer, 152 N. Y. 412, 46 N. E. Rep. 851.

If taxes can be authorized by the counties to erect such armories, it must be on the ground of a county purpose,, and if it can he authorized as such it can be enforced as a duty. Decisions in Illinois, under constitutional provisions somewhat similar to those found in Art. IX of our constitution, hold that the legislature may authorize a municipality to levy the tax, but can not compel it to do *644•so. These decisions are referred to in the case of Potter v. County Commissioners of Dade County, decided at this term. It is also decided in that State that where the tax is authorized to accomplish an object which it is the duty •of the municipality in the exercise of a governmental agency to carry out, the tax may be enforced. A county is specially an agency of the State in the administration of justice and the carrying out of the objects of government, and if the tax for armories can be permitted, it may be coerced as a duty properly imposed, upon it.

The motion to quash did not question the alternative writ on the ground that the provision in reference to the ■construction of armories was in conflict with section 1, .Article IX of the constitution, but if it did, I do not think the result would be different. That section directs that the legislature .shall provide for a uniform and equal rate -of taxation, which means that when a tax for State purposes is authorized it must be uniform and equal on all The property in the State, not exempt, and when it is authorized for a county or municipal purpose it must rest uniformly and equally upon all the taxable property in 'the county or municipality respectively. County Com-missioners of Duval County r. City of Jacksonville, supra. 'If the construction of an armory is a county purpose, Then the tax to pay for it must rest upon all the taxable •property in the county. There is no suggestion in this case that such would not be the result if the county ■should be compelled to build the armory.

This is an outline of my views, without further discus■sionof the authorities, or a distinguishing of those cited 'in the opinion, which I think are not sufficient when properly applied to support the conclusion reached.