(Dissenting.) — -I cannot concur in the opinion or decision in this case, for the reason that, to my mind, the certainly, if not clearly, expressed will of the Legislature is thereby defeated. It is in effect held that the statute construed applies only to cases in which the counties have levied a special road tax, and not to cases like this, where a part of the general levy is thereafter applied or devoted to road purposes. Such is not, in my humble judgment, a proper construction of the statute in question. If the construction stated is the proper one, then the statute was and is wholly useless, for the reason that there is no field of operation for it.
Section 1335 of the Code provides for exactly what the court now holds is the only effect to be- given to the later act of August 27, 1909 (Acts 1909, pp. 303,-304). I am of the opinion that the later act was passed to provide for cases like the one in question, where there was no levy of a special road or bridge tax, but where the funds or .proceeds- of a tax?!evy< were devoted *380to the purpose of constructing, repairing, or maintaining roads or highways of any description. It appears to me that the only difference between the two statutes is that the latter applies to general levies of road taxes, and to cases where there is no general or special levy for road purposes, but where any part of any tax levy is devoted to the purpose of constructing, repairing, or maintaining roads.
If I correctly understand the majority opinion, it holds that, in order for the city to be entitled to any part of the county taxes under this statute, the fund or tax must be “devoted to the purposes” mentioned in the statute, by the tax levy; that is, if the levy by which the tax is raised does not so provide, then, no' part of the county’s taxes is available to the city, no matter if it is subsequently used or devoted by the county authorities to the purposes mentioned in the statute. I may be in error in construing the opinion, but this is what the opinion seems to hold. If the fund is to be “devoted to the purposes mentioned in the statute, by a tax levy” — that is, if the levy is the sole authority or agency for appropriating or devoting the fund — then I cannot conceive how it is possible to so “devote” it. It may be that a “tax levy” can “devote” the proceeds of the levy; but I think it safe to say that such a thing has never been attempted. The levy can, of course, be made for a general or special purpose, and such is usually done; but I never before heard of a levy “devoting” the taxes or proceeds. The levy might provide that when the taxes were collected they should be.devoted to the purposes for which the levy was made; but I cannot understand how the levy can actually devote the proceeds, which are not then ascertainable, much less available for the purposes of the levy. A county tax levy is only the fixing of the tax *381rate for the general or special purpose for which the levy is made, and the naming of the purpose for which it is made. The levy of taxes is a legislative function, while the assessment, the collection, and the devoting of the taxes or proceeds, when collected, are administrative functions, of government. It has never been the custom or policy for the levy, as a part of it, to assess, collect, or devote the taxes. This is well pointed out by Judge-Stone in the case of Perry County v. Railroad Company, 58 Ala. 555, a case cited in the majority opinion, where he says: “Levy and assessment have very different meanings. The levy of taxes is a legislative function, and declares the subjects and rate of taxation. — Burroughs on Taxation, 194; Cooley on Taxation, 244, 245. Assessment is quasi judicial, and consists in making out a list of the taxpayer’s taxable property, and fixing its valuation or appraisement. — Hilliard on Taxation, 290. Taxable property is here used in its broad sense, and embraces all subjects of taxation, on which a tax has been levied by the lawmaking, power. The distinction is the difference between prescribing a rule of action and administering that rule to persons and subjects that fall within its provisions. The Legislature levies states taxes, and the tax assessor assesses them, except the tax on railroads and their rolling, stock, which is assessed by the auditor. The court of county commissioners levies the county tax, providing for no assessment, but adopting the state assessment, as the basis and measure of the taxpayer’s liability. It also adopts the aggregate of the state assessment as the basis and postulate by which it adjusts the county levy, so as thereby to raise the required sum to meet the county wants. These are the data which enable the court to determine the proper percentage to be levied on the state assessment, to provide for coun*382ty expenses. Hence the proportion which the county demands hear to the aggregate of the state assessment. State taxes are assessed; county taxes are only levied. A law which levies a tax, and provides for its assessment, will not justify the collection of the tax until the assessment is first made. To attempt otherwise would be equivalent to an attempt to execute a law against a person or thing before it had been judicially ascertained and determined that such person or thing was amenable to its provisions.”
Surely there is more difference between the levy and the devotion of the taxes than there is between the levy and the assessment. I concede that the statute is not as clear in its meaning as it could be made; but I do think the meaning and intention is made certain, when it is construed in connection with other statutes on similar subjects especially section 1335 of the Code. It is true that section 1335 was held invalid (see the case of Anniston v. Calhoun County, 158 Ala. 68, 48 South605) ; but that defect was cured by a readoption of the Code on the very day the subsequent statute here construed was approved. It has also been held that neither of the statutes could be applied to special levies made under subdivision “a” of section 215 of the Constitution, but that they were applicable to tax levies, general or special, where the levy Avas not in excess of fifty cents on the $100 worth of taxable property. See case of Tuscaloosa County v. Tuscaloosa City, 180 Ala. 479, 61 South. 431, Avhich reviews and cites the authorities.
I cannot concur in that part of the majority opinion which attempts to distinguish this case from that of Tuscaloosa County v. Tuscaloosa City, supra. The fund there subjected to the city was not a general or special levy for road purposes; but it was a part of the fund levied and collected for general county pur*383poses, and thereafter set apart 'from the'general fund to the road fund. The facts in that case are almost identical with the facts in this case. The only difference is that the funds in that case were reached by mandamus before they were expended, while here they had been expended or already devoted, and consequently the specified funds or money set apart could not be reached or subjected by mandamus, but only the equivalent could be reached, in a common-law action for money had and received. That I am correct in my opinion, that the fund subjected in the Tuscaloosa Case was a part of the general tax fund, and general levy for county purposes, and not a part of any general or special levy for road purposes, is borne out by the opinion of Anderson, J. (now Chief Justice of this court), in the opinion in that case. To show this, I quote two excerpts from his opinion, one of which leaves it doubtful as to whether all the fund subjected was a part of the general fund, or of the road fund; but the last makes it certain, as I remember the facts of that record to show, that it was a part of the general tax fund, and not a part of the road fund or road levy. It is there said: “It appears that the order appropriating the fund in question purports to have been made under the act of 1903 (Laws 1903, p. 433), instead of the act of 1907 (Local Acts 1907, p. 227), and which amended or repealed said act of 1903; yet it appears that the fund was transferred to the 'Road and Bridge Fund’ of Tuscaloosa county, and one-half thereof, as was raised under the general tax on property within the city of Tuscaloosa, either by a levy for road purposes or after-wards set apart for said purpose, should have been turned over to the city, instead of to the road and bridge fund.” 111 • ■«“ ■ ¡‘-
*384“It seems, however, that the fund in question — that is, which is being sought — was a part of the general tax, and was set apart for roads and bridges, not public buildings, and instead of appropriating all of it to the road and bridge fund, a portion should have been turned over to the city of Tuscaloosa.”
The local act of 1903 (page 433), above referred to, had nothing to do with special or general levies for road purposes, but related to the authority for setting apart portions of the general fund, and general levies, as distinguished from special levies, to the road and bridge fund, just as was done in this case, under a general statute. That local act, in part, provided as follows : “At the first regular meeting of the court of county commissioners of Tuscaloosa county, Alabama, to be held after the first day of December, 1903, and at the first regular meeting of said court in each year thereafter said court shall appropriate and s'et apart out of the taxes levied for general purposes in said connty such sum as the condition of the county treasury shall warrant, but in no case less than one sixth of one per centum of the total assessed valuation of property in said county, which sum shall be a part of the one-half of one per centum authorized by law for general county purposes.”
The only special road tax for Tuscaloosa county was the one-fourth of 1 per centum levied under subdivision “a” of section 215 of the Constitution, which this court had, in a previous case, decided could not be subjected by the city; so the only fund which could have been subjected in Tuscaloosa county was a part of the general fund for general county purposes, which was set-aside to road purposes. The only difference between the Tuscaloosa County Case and the case in hand is' that the same fund, in the one case, was set aside under *385a local act which required at least one-sixth of the general fund to be set aside] whereas, in the latter case, it was set aside or transferred from the general fund to the road fund under a general statute which allows the surplus of the general fund to be so transferred.
To show that the construction placed upon the statute by the majority opinion cannot be the correct one, and cannot be applied, is well illustrated by the Tuscaloosa Cases. In that county, the court of county commissioners, who levy the general and special taxes, and set apart the funds for the roads and bridges, have nothing whatever to do with the “devotion” or expenditure of the funds. This is done exclusively by another and a different board, viz., the board of public works; that is, the power that levies and sets apart can have nothing whatever to do with the expending or devotion of the funds. They have nothing to do with the repairing or maintenance of the public roads so far as these funds are concerned; but it is done by a board which has no power to levy any tax.
To sustain the construction placed on the statute by the majority, the courts take judicial knowledge of the facts that a member from Jefferson county introduced the bill, and that Jefferson county has local laws for levying road taxes, which other counties have not, thereby intending to meet the needs of Jefferson county. If the court can take judicial knowledge of these facts, •can and should it not take notice of the fact that the Jefferson County Case, so far as its special levy for road purposes is concerned, is covered as by a blanket by section 1335 of the Code, and that the whole statute would be useless so far as the special road levy was ■concerned?
It seems to me that the last statute was enacted to reach funds which were taken from the general fund *386for general purposes, and .applied, .or devoted, to the purposes .mentioned,in the statute. I think the statute says so, in terms, and.we so..expressly, held, in the Tuscaloosa Case, which is-not. over ruled, and, as I have shown, cannot be distinguished from the case in hand, It seems ■to me that the. court can and should.take judicial knowledge of the fact that the statute ip. question was enacted for the very purpose of reaching funds which have been levied and “devoted” exactly as were the funds in this and-in the Tuscaloosa Cases.
I cannot agree to the grammatical analysis and parsing of the statute, as contained in the majority opinion, by means of which the subject of the important and controlling passive verb “is devoted” is said to be the noun “tax.” That part of the opinion to which I cannot agree reads as follows: “If.we omit the words ‘levied for or’ (preceding the word ‘devoted’), the sentence reads: ‘Or where by the tax levy a portion of the tax is * * '* devoted to the purpose,’ etc. The subject of the sentence is ‘tax.’ The verb is ‘devoted.’ The phrase ‘where by the tax levy a portion of the’ is related to and descriptive of the subject, ‘tax.’ The tax devoted is the tax answering to the related descriptive phrase just metioned. There is no other way to read the sentence. There is no other possible subject of the verb ‘devoted.’ It is the word ‘tax.’ ”
The word “tax” occurs twice in the sentence which is analyzed and parsed; but in neither case, in my judgment, is it the subject, of the passive verb “is devoted.” Where the word “tax” first occurs it is not even a noun, but is an adjective, describing the nofin “levy,” which noun is in the objective case, governed by the preposition “by.” Where it occurs the second time it is' a noun, but not in the nominative case, or the subject of the passive, verb “is devoted,” but is in the possessive case, *387and governed by the preposition “of.” The word “portion” is the subject of the verb “is devoted.” I confess that this may at -first Jfrlush appear to be hypercritical, for the reason that the word “portion” is referable to the word “tax;” that'is-, a “portion of the tax.” But in my judgment it is all-important if the statute is to be construed by strict - grammatical rule rather than by the legislative intention. Strictly and grammatically considered, neither a tax, a levy, nor a tax levy, can be devoted to any purpose; it is only 'the funds or proceeds arising therefrom which can be devoted to any purpose. It is not- the “tax” as a whole, or a unit, which by the levy is to be devoted, but where any portion or any part of any tax levy is devoted to the purposes mentioned. Of course, the levy .cannot be devoted, nor can the tax, the fruit, or the proceeds thereof, be devoted, until gathered and collected; and in my judgment the certain legislative, if not grammatical, meaning of the sentence in question is that if any portion 'of any tax levy by a county, or the proceeds of such a levy is -devoted to the purposes mentioned in the statute, then one-half of that collected from the property situated within any city must be by the county paid over to the city. It is for this reason that the word “portion” is made the subject of the verb “devoted,” rather than the word “tax” or “levy.”
The very object of the alternative sentence is to reach cases like this, in which there is.no road tax levy; but a portion of the proceeds of some other tax levy is devoted to road purposes. In such a case, the portion so devoted must then be prorated as the statute directs. If the tax is the unit which must by the levy be devoted to the purposes mentioned, the word “portion,” the real subject of the verb, is wholly useless.
Sayre, J., concurs in thé views of the writer.