The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1910-03-22
JUDGE LANE RULES
ON SPECIAL TAXES
City Not Entitled to Bridge
and Building Money
TO DIVIDE ROAD FUND
Court Allows Board of Revenue Ten
Days to File Answer to Ruling
ON County's Macadam
Road Tax
TO DIVIDE ROAD FUND

A decision was handed down by Judge
40. Lane in the circuit court yesterday
ruling that the city of Birmingham was
entitled to a portion of the macadam
roads tax. In regard to the fund for
bridges and public buildings, however, he
rules that the city is not entitled to
anything. Ten days are allowed the de-
PENDANTS in which to file answers.
Following Is the decision
State of alabama ex rel, city of Biz
mingham vs.. Board of Revenue of JEFF
ferson county, ct al. In the circuit court
OF Jefferson county, Alabama.
This cause comes on to be heard upon
the petition for an alternative writ OF
rnandamus, to compel said board of reve-
nue. and its members to pay over one
half of the road tax and also one-half
OF the bridge and public building tax
levied by said board, and upon the de-
murrers to said petition filed by defend
ants.
The petition seeks relief as to each of
saiG funds separately and the demurrers
are assigned separately and severally to
each aspect of the petition. Now, upon
consideration of said petition and de-
nurrers, l am of the opinion that no re-
lief can be granted as to the fund for
bridges and public buildings, the levy be-
Ing for joint fund, as shown by said
petition, and the court having no power
of apportionment, that function being not
judicial, but legislative. and being vested
exclusively in the board of revenue.
AS to the feature of the petition, which
seeks to compel a payment to the city
Of one-half of the money, one mill on
the dollar, levied (and presumably col
iected) for macadam roads, different and
more difficult questions arise
1t must be borne in mind that, as re-
spects legislation and other functions of
government, the state constitution is an
instrument not of grant but of limita-
ton, the power of the Legislature being
otherwise plenary except, of course, as
to restraints put upon it by the constitu-
ton of the United States and as to vested
rights.
The demurrers invoke, as against the
petition, section 215 of the state constitu-
ton, which prohibits the levy by county
of a greater rate of taxation than 81
cents on the 500, except a special tax Of
IS cents on $l00 to pay debts contracted
or that may be contracted, to construct
BRIDGES, public buildings or roads. There
Is nothing in the petition to show that
greater rate than so cents on S100 has
been levied (above and beyond said spe-
ciai tax authorized and therefore the
adam roads are what are known to the
profession as speaking demurrers, and
for that reason l am of the opin-
ion that the demurrers to this feature of
the petition ought to be overruled, and
that the respondents should be put upon
their answer.
II the fact is that the county had al
ready levied 90 cents on 800 outside of
the special taxes named in section H5
Ct the constitution than ha
opinion that the levy of one mill on the
dollar for county roads was in CONTRA
Teption of the constitution and void; or,
IL the tax levied for county roads has
teen collected and spent, then the court
would have no power to compel the board
OF revenue to pay over money not in its
possession or under its control But IL
the tax levy of one mill on the dollar Is
embraced in the levy of 50 cents on 500,
CT is not beyond that rate then am
of the opinion that the board of reve-
nue. could expend it in carrying out any
legitimate function of county govern
ment; and the county being creation
OF the Legislature. from which 1t de-
rives solely its powers to tax, which
power may be withheld. changed or mod
ifeo by the Legislature It follows as a
oorallory of the foregoing proposition as
to the power of the board Of revenue that
the Legislature may direct the applica-
ticn of county funds not already applied
by the county.
II the Miller case I held section 1895 of
the code void (Which was affirmed by the
supreme COURT, but since that decision
said section has been made by the Legls-
lature a part of the code.
1t Is therefore ordered adiudged and
decreed that said demurrers be. and the
same are hereby sustained to SO much of
the petition as seeks to have paid over
20 the city of Birmingham one-half of
tho bridge and public building fund; but
that the demurrers to So much of the
PETITION as seeks to have paid over one
half of the macadam roads tax be. and
the same are hereby overruled.
It is ordered and adjudged that respond
cnts have ten days from the date hereof
TO file answers to so much of said petit
ton as seeks TO have paid over to the
city Of Birmingham one-half of the mac
adam road tax. A. o. LANE,
Judge Circuit Court.
March q, 1910.