This appeal is from a decree of the circuit court sitting in equity overruling the defendants' demurrer to the bill as last amended and was submitted here with leave to appellants to sever in the assignments of error. Bowden et al. v. Turner,247 Ala. 352, 24 So.2d 429; Stacey et al. v. Taliaferro et al.,224 Ala. 488, 140 So. 748.
The bill is by the City of Birmingham, a municipal corporation against the County of Jefferson, the members of its county commission and the county treasurer, and sought to restrain and enjoin the defendants (appellants here) from using $95,890.70 in the county treasury at the time the bill was filed, garnered by the collection of a property tax levied by the county for general county purposes for the year 1944, and for a mandatory decree compelling the county to pay said sum of money to complainant.
The bill, to state its substance, alleges that the county commission for the years 1944 and 1945, levied taxes up to the constitutional limit under its general power, for county purposes, without setting apart or apportioning any part of the taxes so levied for "the working of public roads in said county." See Local Act approved Feb. 17, 1885. Local Acts 1884-85, p. 709.
The county levied for the year 1944 a special tax of one and one-half mills on the dollar (fifteen cents on a hundred dollars) "for the purpose of paying any debts or liabilities now existing against Jefferson County incurred in the erection, construction or maintenance of necessary public roads, or that may hereafter be created in the construction of necessary public roads in said county, as provided and authorized in Section 215, subdivision (a) of the Constitution of 1901." A like special tax was levied for the year 1945.
The original bill further alleges that the county, and its county commission, in making *Page 334 the levy for the years 1944-45, fraudulently ignored the mandatory duty imposed on it by the local act of February 17, 1885, for the purpose of depriving the complainant of the benefit of said act, by levying for general county purposes up to the limit fixed by the first clause of § 215 of the Constitution, without levying a special tax of ten cents on the hundred dollars for the construction and maintenance of public roads, as required by said act. That in previous years, since 1910, such levy had been made by the county and its county board under its general power of taxation, up to and including the year 1943. In consequence of which, the complainant was entitled to an apportionment of the revenue garnered from the levy on property within the city, under the provisions of §§ 129, 130, Title 12, Code of 1940. The bill asserts no right or interest in the special levy made under the provisions of subdivision (a), § 215 of the Constitution.
The demurrer takes the point that the bill is without equity. That said local act of 1885 confers no right on the complainant and it has no interest in the tax authorized or levied by said local act. That said local act is repugnant to § 5, Article XI of the Constitution of 1875, under which it was enacted.
The appellee, on the other hand, insists that the local act of February 17, 1885, is self-executing and levies the special tax specified in the act as a part of the county's general levy, or that the said act is mandatory, and requires the county board to levy said tax as a part of its general levy. That in previous litigation between the parties involving the right of the complainant to have funds garnered from property taxes levied by the county for road purposes, the integrity of the local act of February 17, 1885, was not questioned; but that the existence and integrity of said act was an essential element of the city's cause of action in the previous litigation, and defendant, the County of Jefferson, is estopped under the doctrine of res adjudicata from questioning the existence of said local act either because of its repeal or because it is repugnant to the Constitution under which it was enacted.
The local act approved February 17, 1885, is entitled, "An Act To provide for the working of public roads in Jefferson County by contract, and to further regulate the working of the roads in said county." Section 1 provides, "That the Court of County Commissioners of Jefferson County shall levy a special tax of one-tenth of one per cent. on the value of all taxable property in said county as assessed for revenue for the State, to be applied to the working of public roads in said county, as hereinafter provided; Provided, that no levy shall be made by said court, in any one year, exceeding one-half of one per cent. for the ordinary county purposes, not including necessary public buildings or bridges."
Section 2 authorizes the court from time to time to let contracts for "making and working of such portions of the public roads in said county as they may select;" outside thecorporate limits of the "city of Birmingham." Section 3 provides for the hiring of convicts sentenced to hard labor to contractors. Section 4 requires contractors to give bond with sufficient surety for the performance of the contract. Section 5 provides that the work shall be done under supervision and direction of a civil engineer or engineers employed by the court. Section 6 provides for the payment of expenses and liabilities required or incurred under the act out of the moneys collected under said act. Section 7 provides that persons liable to road duty shall be required to work six days annually or pay $3 annually for exemption from road duty, with the proviso that such work or payment shall not exempt such persons from work in opening new roads.
It is conceded by appellee, and the reports of the cases show, that the constitutionality of the local act of February 17, 1885, was not questioned in any of the cases growing out of the controversy over claims for apportionment of funds. Some of the reported cases show that said act was not involved at all, but the contention of appellee is that the existence and validity of said act could have been litigated and, therefore, the County of Jefferson, appellant in this case, is precluded from raising the question of the existence or constitutionality *Page 335 of said local act in the trial court or on this appeal.
Answering a like contention made in Commissioners Court of Tuscaloosa County v. State ex rel. City of Tuscaloosa, 180 Ala. 479,61 So. 431, which involved the right of the city under the act, now §§ 129, 130, Title 12, Code of 1940, to an apportionment of moneys garnered under its general power of taxation, referring to said statute, it was observed:
"As heretofore held, the act (said §§ 129, 130, supra) was not violative of section 215 of the Constitution, in so far as it deals with the road tax derived under a general levy as distinguished from the special tax of one-fourth of 1 per centum, and it was not then suggested, upon the consideration of either of the above cases, that said act was repugnant to any other constitutional provision, and it is neither thepolicy or custom of courts to wander into the field ofspeculation in order to gratuitously strike down a legislativeenactment on some point not made or suggested in the brief or argument of counsel. [Italics supplied.]
"We do not think that the judgment in the former proceeding is res judicata. The former mandamus sought the payment of a certain part of the one-fourth per centum of the special tax only, and did not include the tax in question. They are entirely separate and distinct demands having no legitimate relationship with each other, and one being governed by the act of 1909, but which has no application to the other, or which could not do so under the last part of section 215 of the Constitution. The distinction as to when a former judgment does and does not operate as a bar or estoppel against a second action is so well made in the case of Cromwell v. Sac County,94 U.S. 351, 24 L.Ed. 195, that we quote the headnote in said case, notwithstanding it was heretofore quoted and followed in the case of Crowder v. Red Mountain Mining Co., 127 Ala. 254,29 So. 847: ' "The difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or cause of action is that in the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. But, where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered".' * * *." 180 Ala. at pages 486, 487, 61 So. at page 432.
This holding is sustained not only by our cases — Central of Georgia R. Co. v. Dothan Nat. Bank, 206 Ala. 602, 91 So. 351; Crowder v. Red Mountain Mining Co., 127 Ala. 254, 29 So. 847; Irby v. Commercial Nat. Bank of Eufaula, 204 Ala. 420,85 So. 509, but by a great wealth of authority. See 30 Am.Juris. pp. 912-915, §§ 166, 168, 172, where the authorities are collected.
It clearly appears from the allegations of the bill that the county commission did not levy a road tax for the years 1944 and 1945 under its general power of taxation, or apportion any part of its general levy for maintenance of roads. The only road tax levied for said years was levied under the provisions of subdivision (a) of § 215 of the Constitution, and it is now well settled that moneys arising from such levy are not subject to apportionment under the apportionment statutes. That point was expressly decided in Board of Revenue of Jefferson County v. State ex rel. City of Birmingham, 172 Ala. 138, 139,54 So. 757, 759, reaffirmed in Commissioners' Court of Tuscaloosa County v. State ex rel. City of Tuscaloosa, 180 Ala. 479,61 So. 431; Pike County Commissioners' Court v. City of Troy,173 Ala. 442, 56 So. 131, 274, Ann Cas.1914A, 771; Court of County Revenue of Franklin County v. Town of Russellville, 176 Ala. 609,58 So. 253; State ex rel. City of Tuskegee v. Court of Com'rs of Macon County, 190 Ala. 631, 67 So. 394. *Page 336
The local act of February 17, 1885, confers no right on the City of Birmingham. In fact, it expressly excludes said city from having the tax as levied thereunder, if valid for use within the city. And in the absence of a levy made by the county commission for roads under the general levy for county purposes, it has no legal or equitable right in revenues garnered by such levy. County of Montgomery v. City of Montgomery, 190 Ala. 366, 67 So. 311.
This leaves open the single question based on the appellee's contention that the local act of February 17, 1885, is constitutional, self-executing, and each year, levies a tax of ten cents on the hundred dollars on all taxable property assessed for state revenue in the county for construction and working of public roads, as a part of the county's general levy, or is mandatory to that end.
Said local act purports to require the county board of Jefferson County, "to levy a special tax of one-tenth of one percent on the value of all taxable property within the county as assessed for revenue for the state, to be applied to the working of public roads in said county." Outside the corporate limits of the City of Birmingham, as "provided in the act", it does not require that the tax shall be included in or a part of the levy authorized for general county purposes. Nor does it provide that any portion of the levy for general purposes shall be apportioned to such purpose.
The levy of the special tax under the local act of February 17, 1885, cannot be sustained under the last proviso of § 5, Article XI, of the Constitution of 1875, which is limited to "debt or liability now existing against any county, incurred for the erection of the necessary public buildings or other ordinary county purposes, or that may hereafter be created forthe erection of necessary public buildings or bridges," etc., as debts incurred in constructing or working of public roads, and was not therein contemplated or provided for Birmingham Mineral R. Co. v. Tuscaloosa County, 137 Ala. 260, 34 So. 951.
The language of the local act of 1885 clearly shows that it was rested on the proviso authorizing the levy of specialtaxes, and was passed in violation of said proviso, as roads were not within the scope of the proviso. But whether this is so or not, it clearly appears that the county commission for the years 1944, 1945, has exhausted its authority to levy taxes for general county purposes, in obedience to the provisions of the general statutes, which are mandatory, and has not set apart or levied any part thereof for roads. Therefore, it seems clear that a court of equity should not compel the commission to violate the Constitution or statutes under which the court's power is invoked. County of Montgomery v. City of Montgomery,190 Ala. 366, 67 So. 311; State ex rel. City of Tuskegee v. Court of Com'rs of Macon County, 190 Ala. 631, 67 So. 394; Frederick v. Northern Alabama Railway Co., 130 Ala. 407,30 So. 426. The bill seeks to enforce a statutory right and the basis of the right — a levy for roads as a part of the fifty millsallowed for general county purposes — is absent and the court is without power to make such levy.
The application for rehearing by appellee asserts that our opinion promulgated on the 17th of January, 1946, holds "For the First Time in the History of the State, that the firstclause of Section 5, Article 11, of the 1875 constitution, as continued as the first clause of Section 215 of the 1901 constitution, is a Grant of Power to County Commissions to levy county taxes to the extent of the rate therein described, * * *."
This criticism ignores the fact that the opinion in Birmingham Mineral Railroad Co. v. Tuscaloosa County, 137 Ala. 260,34 So. 951, was and is a pronouncement of the Supreme Court of Alabama, written by a distinguished lawyer and jurist who had served on the nisi prius and supreme bench of this state for a period of thirty-four years and before his retirement was the ranking associate justice of the court. That said opinion was concurred in by McClellan, Chief Justice, Tyson, Sharpe and Dowdell, Associate Justices who served with honor and distinction on this bench. It is a matter of history that said pronouncement was made immediately preceding the Constitutional Convention of *Page 337 1901, and that, as a consequence of that decision, the last proviso in said section was amended by adding the words,"or roads," following the word "bridges," where said word occurs for the second time in said proviso, and as thus amended the section was carried forward into the Constitution of 1901, as § 215. Southern R. Co. v. Cherokee County, 144 Ala. 579,42 So. 66. That the opinion in Birmingham Mineral Railroad Co. v. Tuscaloosa County, supra, was subject to that interpretation is evidenced by the fact that the annotators to the Constitution since that date have so noted it. It will be noted that the appellee's criticism is limited to the first paragraph. After more mature consideration, we hold that the opinion in that case is subject to the interpretation that it holds and intended to hold that, the first clause of § 5, Article XI of the Constitution of 1875 was a limitation on the power of the Legislature, while the provisos are grants of power to the county, to levy special taxes for the specific purposes stated in said provisos. Our decisions have so interpreted and applied said provisos since Garland v. Board of Revenue of Montgomery County, 87 Ala. 223, 6 So. 402, decided in 1888, more than a half century ago. In said opinion [Birmingham Mineral R. Co. v. Tuscaloosa County, supra (137 Ala. 260, 34 So. 952)] the court observed:
"Under these limitations of power, it is clear, that no county, under the Constitution of 1875, could levy, in any one year, a greater rate of taxation on the value of the property therein, than one-half of one per centum, except to pay past debts and for public buildings and bridges; and that a county could not levy a special tax for any purpose other than those expressed in the provisos of said section 5, if such special tax together with the tax for general purposes, exceeded one-half of one per cent. * * *."
"We have already said, that in the levy of the special tax, the commissioners' court was confirmed by the terms of the Constitution itself, to making the levy, to pay debts or liabilities 'created for the erection of necessary public buildings and bridges.' The ratifying and confirming act of March 1, 1901, was not confined to these purposes. The title to the act is, as we have seen, 'To ratify and confirm a levy of taxes by the commissioners' court of Tuscaloosa county, for the purpose of building necessary public bridges in said county,and the further purpose of paying the interest on the bridgebonds and other bonded indebtedness of said county.' (Italics ours.) This other bonded indebtedness is not specified, but it is made to appear, that it is not for public buildings or bridges alone. * * *."
The conclusion was that the ratifying act was beyond the power of taxation conferred by the proviso.
In a later case (Adams, Tax Collector, v. Southern Ry.,167 Ala. 383, 389, 52 So. 439, 441), dealing with the county's power of taxation under § 215, it was observed: "The whole section must, of course, be read and considered, in arriving at a true interpretation of any part of it. In the first proviso a like exception to that with which we are now concerned is made that debts on the prescribed date might be paid by taxation. Obviously, the area, the unit of taxation for that purpose is the county, and not a fraction thereof. This is rendered perfectly certain, if it were not otherwise by the fact that the debt contemplated is and must be the debt of the county, and not that of any fraction thereof. With like intent, 'county' is employed the second time in the section. As thereused, it intends that the power to impose a special tax isgiven, by way of exception from the prohibition of the generallimitation, as a means to pay existing * * * debt or liability'against the county.'"
In Board of Revenue of Jefferson County v. State ex rel. City of Birmingham, 172 Ala. 138, 54 So. 757, 760, dealing with the power of counties to levy a special tax under § 215 of the constitution, and the power of the legislature to apportion the proceeds under the general apportionment act, it was observed:
"* * * Each character of government was intended to be,and it is, armed with its own separate taxing power for its ownseparate sustenance; and while the county can tax the property of the citizens within the municipality within the county, the exercise of that power is none the less *Page 338 a county act, neither infractive of the municipal right nor expansive of the county power. A vital feature of this twin system of minor government is, of course, the taxing power; and the present organic law treats each separately, and sets down in independent sections the respective limitations on the taxing power of each class of subordinate governments. So, to conclude on this idea, if there be in the whole range of municipal and county authority and law points whereat these, in a sense, twin governments become blended in authority and purpose, the taxing power (and necessarily the benefit thereof must coincide with and conform to that power and its exercise) is not one of the means inviting that result. It hence necessarily follows that the exercise of each authority ofits taxing power must redound to its benefit, to its warrantable purpose, alone. * * *
"* * * All doubts must be resolved in favor of validity; but the doubts so to be resolved must, of course, find inspiration in the organic law as applied to the enactment, and the enactment, however emphatic its declaration, cannot alone cast the conclusion. * * *
"That the Constitution makers did not intend the inclusion ofstreets in the term 'roads,' as used in section 215, will appear from reference to sections 220, 223, 225, 227, and 228. In each of these sections the term 'street' is employed as aptly descriptive of a thoroughfare in municipalities. Along with its use in that connection the terms 'avenues,' 'alleys,''sidewalks,' 'street paving,' and 'street improvements,' all having reference to urban ways alone, appear. None of these terms even suggest any relation to the rural highway, which, to us, is familiarly known, in statute and decision, as a 'publicroad.' So that we feel impelled to affirm that the makers of the Constitution recognized and wrote to the generally well-understood distinction, in reference between roads and streets — a distinction thus aptly noted by Stone, J., in McCain v. State, 62 Ala. 138: 'Manifestly, what we know as a public road or highway has very little resemblance to a street in a village, town, or city. * * * They cannot be both a public road of the county, as that phrase is understood, and a street of an incorporated village at one and the same time. One character must yield to the other.' * * *
"Section 215, in the proviso under consideration, expressly confines the application of the fund raised by the special tax to the purpose for which it is levied and collected. Unquestionably no right rests with the Legislature to impair, much less defeat, the exercise of the power which the Constitution contemplates. Indeed, to go further, the Legislature cannot fix such conditions to the exercise of the power and the ultimate application of the fruits of its exercise as to qualify the power and to restrict the legitimate benefit thereof to its objective. If the Legislature may direct, as in the act in hand, that a percentage of the fund raised by the special tax paid on property within a municipality shall be paid over to the municipal authorities, it would, of course, be permissible to direct that all of the special tax paid on property within municipalities shall be paid to those authorities, to be applied to the improvement of thoroughfares within them only. The immediate result of such legislative direction is to divest the governing body of counties of any discretion in respect to the application of the part of the special fund drawn from the special tax paid on property within municipalities, and to require application of a part thereof (that paid on property in municipalities) to designated highways in municipalities. In other words, that process of legislative control (if sustained) would toll the sum available to the application of the county governing bodies to the purpose contemplated in the Constitution (section 215) to the extent that property in municipalities contributed to the special fund. The Constitution's warrant under the pertinent proviso, is to the county, and the Legislature cannot qualify or impair it. * * *
"Broadly considered, the sum of the whole matter is that the Constitution (by proviso) permits the investment of the counties with the special power to tax for the special purpose of constructing and maintaining public roads, and commands the application of this tax fund to that purpose alone; while the Legislature had undertaken by this act to direct the application *Page 339 of the fund pro tanto, to municipal streets, thereby necessarily denying to rural sections of the counties the benefit of that percentage of the fund contributed by property owners in municipalities. * * *." [Italics supplied.]
The soundness of the opinion in the last cited case, from which we have quoted excerpts, has been reaffirmed in the following cases: Commissioners' Court of Tuscaloosa County v. State ex rel. City of Tuscaloosa, 180 Ala. 479, 61 So. 431; Pike County Commissioners' Court v. City of Troy, 173 Ala. 442,56 So. 131, 274, Ann.Cas.1914A, 771; Court of County Revenue of Franklin County v. Town of Russellville, 176 Ala. 609,58 So. 253; State ex rel. City of Tuskegee v. Court of Com'rs of Macon County, 190 Ala. 631, 67 So. 394.
In the last cited case, this court, dealing with the validity of the apportionment act, by Justice Somerville, observed: "* * * It has been settled by our decisions that, in so far as that act relates to special road and bridge taxes levied under the authority of subdivision 'a' of section 215 of the Constitution, it is in conflict with the last clause thereof, and is therefore, as to such special levies, inoperative and void. * * *."
In the case of Town of Russellville, supra, a petition for writ of mandamus "to compel the court of county revenue, appellant, to pay over to said petitioner its legal share of the amount collected under a special levy for roads and bridges," this court, speaking by Justice Simpson, on April 4, 1912, observed:
"* * * This court has previously fully considered this matter, and has held that where the levy is a special one, under said section of the Constitution, the Legislature is without authority to have a portion of the money realized from said tax paid over to municipal authorities." The case of Board of Revenue of Jefferson County v. State ex rel. City of Birmingham, supra, was cited.
The State v. Street et al., 117 Ala. 203, 23 So. 807, involved the constitutionality of an act requiring the court of county commissioners of Marshall County, to "appropriate and set apart out of the taxes levied for general purposes in said county, * * * one-eighth of one per centum on the assessed valuation of said county, which sum shall be part of the one-half of one per centum authorized by law for county purposes. Said fund shall be known as the road fund of Marshall county, * * *." The observations of the court in the opinion in that case were limited to the first clause in Article XI, § 5 of the Constitution of 1875, that no county in this state shall have authority, "to levy a larger rate of taxation, in any one year, on the value of the taxable property therein, than one-half of one per centum." The authority of the court of county commissioners to levy a special tax under the proviso in said section was not a question involved. The question involved in Hare v. Kennerly, 83 Ala. 608, 3 So. 683, 684, was the validity of Section 8 of the act approved December 8, 1880, which provided:
"Be it further enacted, That in execution of the trust assumed by the State in said act of February 11, 1879, to provide legislation to carry into effect the adjustment and settlement referred to in the title of this act, a tax ofthree-fourths of one per-centum for each year, until the bonds and coupons under this act are fully paid, is levied, asauthorized by the constitution, and shall be collected on the value of all the real estate and personal property within the limits of said city of Mobile, as the same are defined in the charter of said city, which was vacated and annulled by the aforesaid act of February 11, 1879, according to the value of such property as the same may have been assessed for State taxation during the year preceding that for which said tax is levied and is to be collected." Acts 1880-81, pp. 329-360.
The insistence there was that this act violated Section 4 of Article XI, providing: "The General Assembly shall not have the power to levy, in any one year, a greater rate of taxation than three-fourths of one per centum on the value of taxable property within this State." Constitution 1875, Art. XI, 4. The act of February 11, 1879, referred to in the quoted excerpt vacated the charter of Mobile, a municipal corporation, and imposed on the state a duty to levy taxes to take care of the outstanding *Page 340 obligations of the City of Mobile, which was afterwards incorporated as the "Port of Mobile". The court sustained the validity of the act on the theory that by the abolition of the City of Mobile, the power of taxation conferred on the City of Mobile, by the proviso in Section 7 of Article XI of the Constitution of 1875, to the effect that: "This section shall not apply to the city of Mobile, which city may, until the first day of January, one thousand eight hundred and seventy-nine levy a tax not to exceed the rate of one per centum, and from and after that time a tax not to exceed the rate of three-fourths of one per centum, to pay all the expenses of the city government, and may also, until the first day of January, one thousand eight hundred and seventy-nine, levy a tax not to exceed the rate of one per centum and from and after that time, a tax not to exceed the rate of three-fourths of one per centum, to pay the existing indebtedness of said city, and the interest thereon" reverted to the state for the purpose of carrying out the trust created by the 1879 act, notwithstanding the general limitation embodied in § 4, Art. XI, the court observing: "The tax levied under section 8 of the act of December, 1880, is precisely the rate here authorized — three-fourths of 1 per centum; and the express purpose for which it was levied and is to be collected is 'to pay the existing indebtedness' of said city, as compromised under the direct authority of legislative sanction."
There is nothing in said local act that requires the county board to apportion funds accruing from taxes under the levy for general county purposes for the construction or maintenance of roads; and in the absence of a levy for taxes for construction or maintenance of public roads, within the one-half of one percent, the city is without right to an apportionment, under the provisions of §§ 129, 130, Title 12, Code of 1940. State ex rel. City of Tuskegee v. Court of Com'rs of Macon County, supra.
In short, the complainant by its bill seeks to compel the county, by judicial decree, to set apart and apportion a sum equal to five cents on the hundred from the revenue garnered as taxes from property within the city limits (under the general levy for county purposes), as a fund for the upkeep and maintenance of public roads, — a result not sanctioned or provided for by §§ 129, 130, supra.
Moreover, pretermitting the question of an adequate remedy at law, and treating the local act of February 17, 1885, as valid, mandatory, and in full force, the county commission by the levy of a special tax equal to or in excess of ten cents on the hundred dollars for roads, or to pay debts created for construction and maintenance of roads, has literally complied with the mandate of said act by making the levy as authorized by § 215(a) of the Constitution, and the provisions of the Constitution inhibit its devotion to any other purpose. State ex rel. City of Tuskegee v. Court of Com'rs of Macon County,190 Ala. 631, 67 So. 394.
Therefore, in my opinion, the bill is without equity and nothing appearing therein showing that it can be given equity by amendment, the decree of the circuit court should stand reversed, and one here rendered sustaining the demurrer and dismissing the bill.
I, therefore, respectfully dissent from the opinion and holding of the majority.