This is a second appeal; the decision on the former being reported in 135 Ala. 156.
On the return of the case the bill was amended so. as to aver that the condition set out in the tenth section of the act, (Acts, 1900-1, p. 754), under which the courthouse had to be moved, never happened, because the board of commissioners appointed under the act did not ascertain “that the amount to be paid by said county (Baldwin) for building said court house and jail at Bay Minette, in addition to the solvent donations secured, and the amount that can be realized from the sale of the court house and jail and the real estate owned by said county at Daphne,” would not require an increase of the present tax rate of said county to< pay the same, and that it was a violation of said act for the authorities to arrange as they did for the payment of the amount to-be contributed by the county, by warrants falling due in subsequent years though without requiring an increase of the present tax rate of the county.
The lower court, conceiving that we had held on former appeal that the county contribution had to be made from the tax levy of the single year of 1901, held that the removal of the court house to Bay Minette was unauthorized because it was shown that the county contribution Avas greater than could be paid from the taxes of 1901, and because the payment was distributed by warrants against the collection of subsequent years though without any increase of the present rate, of taxation.
We -did use an expression susceptible of the construction, viz.: that the entire contribution of the county had to be out of the taxes of 1901, but the point Avas not then under discussion, and the expression was inadvertent.
We think the whole context of the act shows that the Legislature did not contemplate that the new court house and jail would or could be built with the county contribution limited to what the taxes of 1901 would enable the court of county commissioners to contribute. The single purpose of the legislative restriction was *561that the object should be accomplished without the necessity of increasing the then tax rate.
And the nature of the undertaking and the words of the statute show that the use of taxes for future years at the same tax rate was contemplated. The Legislature must be held to have contemplated that suitable structures, and, therefore, buildings of considerable cost would be erected, and to have known the insufficiency of the taxes of a single year to pay the portion of the expense that would naturally fall upon the county, notwithstanding the subscriptions and donations, and the sale of the property of the county at Daphne, provided for in the act. Then the words of the statute do not forbid the use of the county fund for subsequent years, but contemplated such use. The taxes for 1901 had already been levied and there could be no increase of the rate except under the general powers given to levy special taxes for public buildings. It was to put a negation upon this power to increase tax rates by special levy that inspired the proviso that the county contribution should be paid out of money which “is on hand or can be raised by said county without increasing the present tax rate.” Sec. 7, p. Too, of said Acts. It appears that this was done by giving to the contractor warrants against taxes of future years in amounts not requiring any increase of the tax rate for their payment.
The sixth section of the act requires the commissioner’s court, at the February term, 1901, to ascertain and certify to the board of commissioners appointed by the act, “what amount of money the county of Baldwin can contribute to the building of a court house and jail at Bay Minette during the year 1901, without increasing the tax rate of said county.” Now, is it a fair construction to say that the words “during the year 1901,” were intended to qualify “building” in the year 1901? Is it not the natural and fair construction that the contribution referred to was one to be made during the year 1901, (that is, out of revenue of that year), for the building at Bay Minette? We think the latter is the proper construction, and this view is supported and confirmed by the language employed in the seventh and tenth sections.
*562It is provided in the seventh that the cost as to the county should be allowed by orders on the county treasury, provided, that the amount .“is on hand and can be raised by said.county without increasing the present tax rate.” And the same proviso is in effect found in the tenth, which makes the condition on which the act is to go into effect to rest upon, the ascertainment that the county contribution would not require an increase of the present tax rate “'to pay the same.”
“Raising” money contemplates a sale of property for money or a borrowing on engagements to pay in the future. The Legislature well knew that the county had no property to sell, and therefore in authorizing payments to he made with money on hand or “raised” must have had reference to payments out of revenue of subsequent years arising without any increase of the tax rate, especially as the contribution that could he made for 1901 was to be certified as a preliminary proceeding. The transfer or delivery of the warrants falling due for subsequent years, to the contractor as cash, is the same as if they had been sold and the money raised thereby, and then paid out to the contractor.—South Dakota v. N. Co., 192 U. S. 286.
The important question presented, to state it, in conclusion, concretely is, whether under the act of 1901, the contribution of the county could be paid in several years or had to be paid out of the revenue of 1901.
The logical result from what we have said is that the debt could be distributed for several years so as to be paid out of the revenue of the county during those years, without any increase of the then existing tax rate.
The demurrer to the bill, in my opinion, should have been sustained. The other members of the court, however, hold that the act was properly construed on former appeal, and that under the averments of the bill it never went into effect. This being true, the averments contained in the fifth paragraph of the bill are wholly immaterial, and the overruling of the ground of demurrer interposed to it is innocuous.
The decree appealed from is affirmed.
Tyson, J., dissenting.