State Ex Rel. Harrell v. Cone

Buford, J.

(dissenting).—I concur in what has been said in the opinion prepared by Mr. Justice Terrell for this Court concerning the right of the Comptroller to refrain from disbursing public funds under purported' authority of a legislative: Act which he in good faith believed to be contrary to the provisions of the Constitution. I am willing to go a little further than the language used in that opinion and, on authority of the cases therein cited, say that it becomes the duty pf a public official like.the Comptroller of the State of Florida to exercise the utmost care in disbursing public funds entrusted to his custody and control and if a legislative Act directs him to pay out money for a purpose, or in any manner which he in good faith believes to be contrary to the provisions of the Constitution, it becomes his duty to decline to so pay out the public funds until such time as he shall have procured the decision of a court of competent jurisdiction upholding the validity and constitutionality of the legislative Act so appearing to him to be invalid.

I cannot concur in the remainder of the opinion for the

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reason that it appears to me that Chapter 17967, Acts of 1937, is a special law in conflict with Section 21; Article III, of the Constitution in that it regulates the duties of a certain class of officeers to-wit, the State Board of Administration, in regard to the distribution of public funds and applies to Washington County only. It also attempts to require the payment of state funds to certain coupty officers to be used for county purposes and without an appropriation authorizing such payment, in violation of Section 4, Article IX of-the Constitution.

The Act also creates an unlawful discrimination as to the participation by Washington County in a fund produced by state taxation for the benefit of the State as a whole.

Section 1 of the Act under consideration provides as follows:

“Section 1. That whenever any moneys derived from gasoline taxes imposed under the laws of the State of Florida shall be placed to the credit of Washington County in the State of Florida,, the State Board of Administration shall be, and it is hereby authorized, empowered and directed to distribute and pay monthly to the County Road and Bridge Fund of said Washington County all moneys appropriated to the use of the State Road Department for the construction within the said county of these state roads within said county which were heretofore designated as and recognized by the State Road Department as being a part of the first, second, or third preferential system of State Roads.”

Turning to Chapter 15629, Acts of 1931, we find that that Act provides in part:

“Second Gas Tax: A tax of three (3c) a gallon to be apportioned, as provided for in ..Section 8 of this Act.”

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Section 3 of the Act ¡provides as follows:

“Section 3. All moneys derived from the gas taxes imposed by this Act, shall be paid into the State Treasury by the Comptroller, as follows:

“First Gas Tax.—Shall be paid into the ‘State Road License Fund’;

“Second Gas Tax.—Shall be paid into the ‘State Road.s Distribution Fund.’

“Which said special funds are hereby created for the reception of the same.” '

Sections 6 and 7 of the Act provide as follows:

“Section 6. All such moneys in the ‘State Road License Fund’ shall be used for the construction and maintenance of State Roads, as otherwise provided by law, under the direction of the State Road Department which department may from time to time make requisition on the Comptroller for funds to pay for the construction and maintenance of state roads. Money from said funds shall be drawn by the Comptroller by warrant upon the State Treasury pursuant to vouchers, and shall be paid in like manner as other state warrants are paid out of the appropriate funds against which same are drawn, and all sums of money 'necessary to provide for the payment of said warrants by the Comptroller drawn upon said funds are hereby appropriated annually out of said funds for the purpose of making such payments from time to time.

“Section 7. It is hereby expressly recognized and declared by the Legislature of the State of Florida that all roads being constructed or built or which have heretofore been constructed or built, or which will be hereafter constructed or built by the State Road Department under prior authorization and/or designation by the Legislature of the State of Florida as state roads, or which were constructed

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or built by any county or special road and bridge ’ district or other special taxing districts thereof, were, are and will be constructed and built as state projects and undertakings, and that the c'ost of the construction and building thereof was, is -and will be a legitimate proper state expense incurred for a general and state purpose and should be wholly borne by the State of Florida. It is hereby expressly recognized that certain • of the counties of the State of Florida and/or special road and bridge districts or other taxing districts of such counties have advanced or contributed and paid to the State Road Department varying sums of money to be used and expended by said State Road Department in the construction and building of state roads theretofore authorized and/or designated by the Legislature of the State of Florida as state projects, and it is hereby expressly recognized that certain of the counties of 'the State of Florida and/or special road and bridge districts or other taxing districts of such counties have paid or expended or caused to have been paid or expended varying sums of money in the construction and building of certain roads .that are now state roads arid heretofore designated as state roads by the Legislature of the State of Florida and that all such moneys have been and are being expended, furnished, advanced, contributed or paid out’on account of expenses of the State in construction and building of said state roads to and for the general benefit of the State and that such sums should be returned and repaid respectively to each county to the amount that such county and/or any special road and bridge district or special taxing districts thereof have advanced or expended in the construction of the same.”

Section 8 provides :

“Section 8. (a) The chairman and auditor of the State

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Road Department shall within ninety (90) days after this Act becomes a law, ascertain and certify to the Comptroller of the State of Florida and to the Board of Administration and to each county within the State of Florida the amount of money advanced and paid by the several counties, and/or special road and bridge districts or other special taxing districts of any counties to the State for the use of the State Road Department in the construction and building of state roads, specifying separately and particularly the amount advanced and paid by each county; and the chairman and auditor of the State Road Department shall within ninety (90) days after this Act becomes a law, ascertain and certify to the Comptroller and to the Board of Administration and to every county of the State of Florida, the amount of money furnished, advanced, contributed, paid out or expended by the several counties and/or special road and bridge districts or other special taxing districts of such counties in the building and construction of roads that are now designated state roads, specifying separately and particularly the amount furnished and expended by each county. The amount so certified as to any county shall include all moneys advanced, contributed, paid and expended, as aforesaid, by such county and by every special road and bridge district or other special taxing district for road and bridge purposes on roads now designated as state roads, in such county.

“(b) Said certificate shall be audited by the Comptroller, 'and, being found correct, shall constitute the basis for the subsequent allocation and apportionment of the moneys to be derived from the Second Gas Tax and from which the disbursement shall be made to, or for the benefit of, such respective counties as herein provided out of said 'State

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Roads Distribution Fund’ account. The Comptroller shall each month draw his order on the Treasurer of the State of Florida for the full amount of 'moneys then with the State Treasury in said ‘State Roads Distribution Fund’ specifying the counties to which said moneys shall be paid, and the amount to be paid to each county respectively, which said sums so apportioned to the counties are hereby appropriated monthly out of said ‘State Roads Distribution Fund’s account. Said'orders of said Comptroller shall be countersigned by the Governor, and shall be payable to the State Treasurer as

ex officio

Treasurer of the counties, respectively, participating therein. The monthly schedule of installments to be so paid to or for such counties shall be computed, determined and paid out monthly in the following ratio, to-wit:

“1. The( proceeds of one cent of the said Second Gas Tax shall be apportioned to the credit of the several counties on the basis of area of said counties, that is to say, the apportionment shall be to the county in the proportion that the area of the county shall bear to the area of all the counties;

“2. The proceeeds of one cent of the said Second Gas Tax shall be apportioned to the credit of the several counties on the basis of population of the counties, that is to say, the apportionment shall be to the county in the proportion that the population of the county shall bear to the total population of the state, as determined by the last preceding general State or Federal census taken; and'

“2. The proceeds of one cent of the said Second Gas Gas Tax shall be apportioned to the credit of the several counties on the basis of contribution which has heretofore been made by the respective counties and/or special road and bridge districts or other special taxing districts of such

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counties to the construction of state roads, either through funds or the equivalent thereof of the county and/or special road and bridge district, or other special taxing districts, of such counties turned over to the State Road Department from time to time or through roads constructed by the counties and/or special road and bridge districts or other special taxing districts of such counties at county or district expense, and which were then or thereafter made a part of the existing state highway system,

“(c) Whenever the amount furnished, advanced, paid out, contributed or expended by any county and/or special road and bridge district dr other special taxing district of such county, directly, or through the. State Road Department, in the construction or building of such state roads, within such county, has been'returned to such county, such county shaall continue to participate in the distribution of the three (3c) of the Second Gas Tax as provided in Section 8 (b) hereof, so that thereafter a sum equal to the sum provided to be returned to or for such county under this Act shall be monthly paid into the State Road License Fund, and same is hereby monthly appropriated to the use of the State Road Department for the construction within said county of those state roads within such county which were at the time of the passage of this Act designated1 as and recognized by the State Road Department as being a part of the first, second or third preferential system of state roads, and which roads, to the extent of such funds, are to be constructed and built in such counties, respectively, by the State Road Department as soon as practicable as state projects and undertakings.

“Such funds shall be applied and used by the State Road Department for such purpose and not otherwise, and the expense of constructing said roads is hereby declared to

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'be a legitimate proper state expense to be incurred for a general and state purpose.

“When any county in the State of Florida no longer participates under the provisions of this Act in the return to or for it of moneys contributed for .the construction oi state - roads, as herein provided, and when these roads shall have been constructed which are at the time of the passage of this Act a part of the¡ first, second and third preferential system of state roads within such county, then and thereafter all funds thereafter derived from the Second Gas Tax theretofore allotted or appropriated to or for said county shall be transferred to the State Road License Fund of the State of Florida in the manner and to be expended as provided by law.”

Section 9 provides:

“Section 9. All moneys provided for hereunder to be credited to the various counties of the State and so- paid to the State Treasurer as

ex officio

county Treasurer shall be administered by the Board of Administration, as provided by law.

“Moneys to be used'for road and bridge construction in the completion of the first, second and third preferential state road system within any county as herein provided, shall be placed' in the State Treasury in the State Road License Fund to the credit of the State Road Department and same is hereby appropriated for use by said State Road Department in the construction of roads and bridges in such preferential road system in the various counties to which the same is credited.”

Chapter 17967, Acts of 1937, insofar as Washington County is concerned, attempts to supersede the provisions of subparagraaph (c) of Section 8 and to place the funds referred to in that paragraph of Section 8 beyond the con

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trol of the State Road Department and in the- exclusive control of the Board of County Commissioners of the county to be used as a part of the County Road and Bridge Fund of that county. If that fund becomes a part of the County Road and Bridge Fund, it may be transferred from that fund to another under the provisions of Section 1526 R. G. S., 2304 C. G. L. There are numerous counties in the State as to which the Legislature either has by valid enactment, or otherwise, purported to authorize the county commissioners to transfer money from one fund to another upon resolution of the Board of County Commissioners without reference to the Comptroller.

The Act now under consideration .destroys, as far as Washington County is concerned, the very foundation principles upon which Chapter 15659 was upheld as a valid enactment.

In the case of Carlton v. Mathews, 137 Sou. 815 , after having quoted extensively from the Act involved, we said:

“Under the law we are considering in the instant case, there is nothing said regarding the use of the money to pay county and special road and bridge district bonds. The state revenue realized under the instant law is by the terms of the law to be used in reimbursing and paying certain counties and/or special road and bridge, and other special taxing districts, for the construction of roads, and for

contributions made in the construction of roads which the Legislature

by virtue of its

sovereign power

has taken over as

state roads

and which the Legislature recognized as a moral obligation, which in justice, honor, equity and good conscience should be paid. The Act then appropriates the state funds arising from the second gas tax to pay this recognized state expense. The funds appropriated do not

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become county funds until they have been paid to the state treasurer as

ex officio county treasurer.

“Under the law as we have it in this case, the right of any county and/or road or bridge or other taxing district to participate in the money appropriated from funds derived through the second gas tax is not dependent upon whether or not it has outstanding bonds issued for road purposes, but the right to participate depends upon whether or not it has constructed or built roads which have since been taken over and designated by the Legislature of Florida as state roads; and whether or not it has contrib-; uted, advanced or paid out moneys in the construction of state roads by the State Road Department. A county and/or special road and bridge or other taxing district may have paid and retired its issue of bonds, if any it had, but if the money realized from the issue or from any other sources were used in constructing roads that have been taken over by the state, or if it advanced the proceeds of such bond issue or any of its other funds to the State Road Department for the construction of roads designated as State Roads, such a county or special road and bridge district participates, in the money appropriated to the extent of the money expended in the construction of, and contribution to the construction of state roads. Perhaps there are counties that have constructed roads now designated and taken over and used by the State as State Roads, or counties and special road and bridge districts, which have advanced and contributed moneys for the construction of such roads, but that no bonds were issued for such purpose. Any such county and/or special road and bridge district may participate in the distribution of the funds appropriated under this Act to the extent of their contribution

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to the construction of those state roads, although they never had

bond issues.

“From .our study of Chapter 15659, Laws of Florida (House Bill 65-X) Acts of 1931,. Ex. Sess., we think it clearly appears that the primary purpose and intent of the Legislature in providing for the second gas tax, and in the appropriation'of the funds derived from it, was

not

to pay in whole or in part the principal arid interest of the bonds of political subdivisions of the state,

but

to provide for the reimbursement of counties and special road and bridge districts or other taxing districts for moneys expended and/or contributed by them in the construction and building of roads which the state by Acts of the Legislature had designated and taken over as State roads. We are of the opinion that the decision of this Court in the.case of Amos v. Mathews is not decisive of this case. Appellee very strongly relies upon several previous decisions of this court to sustain his contention that the levy of the second gas tax and the appropriation of the proceeds thereof are void- and violative of Sections 2 and 6, Article IX, of the Constitution, quoted above. Among other cases he cites Cheney v. Jones, 14 Fla. 587 ;

In re

Advisory Opinion to Governor, 94 Fla. 967 , 114 So. 850, 855 , State v. Green, 195 Fla. 117 , 116 So. 66 .”

And again we said:

“We might say also in the Martin v. Dade Muck Land Co. case these appropriations were being made without the State having received anything of benefit or value in return.

“In the instant case we have before us a statute making appropriation of state funds for a purpose radically different from those provided in the statutes considered by us in the cases above referred to.

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“In Chapter 15659, Laws of 1931, Ex. Sess. (House' Bill 65X) we are considering a statute levying a tax and making appropriation of the moneys derived therefrom for a general public purpose, i. e., to pay for state roads constructed by counties and special road and bridge districts, to reimburse counties and taxing districts for moneys advanced in construction of state roads; and, lastly, to continue .in such counties the building of state roads on the first, second and third preferential system of state roads. There is nothing in the Act obligating the state to pay principal and interest on bonds of- any kind. There is nothing to show any recognition by the state that it is in any way obligated to pay bonds of any kind.

“That some of the moneys.appropriated to pay and reimburse counties and/or special .road and bridge or other districts will be used by the board of administration, a county fiscal agency of the participating counties, to pay the interest and principal and to provide for the sinking fund to take care of the principal of county and district bonded indebtedness, does

not

by any means affect the validity of the Act, the levy of the tax, or the appropriation of the .funds. The provisions of Sections 2 and 6 of Article IX of the Constitution are not contravened thereby.”

And again it is said in that opinion:

■ “Chapter 15659, Acts of 1931, Ex. Sess., when properly interpreted, does not in any way undertake to treat the amounts expended and advanced or contributed by counties and/or road and bridge districts,, for the construction of roads subsequently taken over by the state as an advance or loan to the state, constituting a contractual obligation upon the part of the state to repay. In this Act . the Legislature only recognized and declared that the

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amounts expended, advanced, furnished, contributed by such political subdivisions of the state for the construction and building of the state roads was fór; a general public purpose benefiting all the state, was a legitimate proper expense incurred for a general and public purpose, and should be wholly borne by the State of Florida; and providing for the raising of revenue to carry out its announced determination. There is no expression in the law recognizing any contractural liability upon the part of the State. Any future sessions of the Legislature may change the program set forth in this Act carrying out the policy of the Legislature of 1931, by repealing the law providing for the second gas tax or passing a law appropriating the revenue derived from it to other state purposes.

“The Legislature of the State of Florida has the power and authority to declare that .moneys expended by counties and/or special road and bridge districts therein in the construction of roads, or furnished and contributed to the State in the construction of roads taken over by the State is a proper expense to be borne by the State, and to levy taxes and appropriate the proceeds, to pay such amount upon moral and equitable considerations and as obligations of justice and honor, as distinguished from legal ‘Contractual’ obligations; the power to ascertain and determine the obligations within this class being entirely political and legislative. United States v. Realty Co., 163 U. S. 427 , 16 S. Ct. 1120 , 41 L. Ed. 215 ; Guthrie National Bank v. City of Guthrie, 173 U. S. 528 , 19 S. Ct. 513 , 43 L. Ed. 796 ; Knights v. James Jackson, Treasurer and Receiver General, 260 U. S. 12 , 43 S. Ct. 1 , 67 L. Ed. 102 ; Mitchell v. Lowden, 288 Ill. 327 , 123 N. E. 566, 567 .”

And again in the same opinion we said;

“Section 1 of Article 9 of the Constitution provides that

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the Legislature shall provide for a

uniform rate

of taxation. It is claimed' that the plan for the apportionment of the second gas tax is violative of this provision of the Constitution.' It will be noted that the rate of taxation is the same throughout the State. It may be that in the levy of this tax the State will secure more money from some counties than from others because more gasoline is sold in the more populous counties. However, this is true regarding any tax levied for state purposes; either ad valorem or excise. But the mere fact that larger sums of money for state tax are collected from some counties than from others does not require that the state appropriate it for state purposes in counties in proportion to the- amount of state tax collected in such counties. If that were the case, many of the state institutions would fail to have the necessary funds for their support. The second gas tax is, as has already been held in this opinion, a

state

tax,

and the revenue derived therefrom is by the terms of the Act appropriated for a state purpose

(emphasis, supplied)

i:

e., to repay or reimburse counties and special road and bridge districts for moneys expended by them on state roads.- The Legislature, in the exercise of its power, has determined that the second gas tax at 3 cents per gallon be .appropriated and distributed as we have already observed.”

Under the provisions of Chapter 15659,

supra,

the second gas tax was distributed for the benefit of all counties to'be used for the benefit of all counties in'the same manner and that use in all counties was limited to use for state purposes, except that part of the fund which was distributed to the counties in payment for, or reimbursement for, the expense which the counties had incurred in constructing highways which had been, or were authorized to be, taken over by' the State Road Department. That part ’ of such

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fund is not involved in this case. The fund here involved is one which has accrued after Washington County had been fully repaid and reimbursed for moneys expended in the construction of that class of roads above referred to.

It was the purpose of Chapter 15659,

supra,

as construed by this Court in Carlton v. Mathews,

supra,

to collect a fund by way of the second gas tax and appropriate that fund to the extension of a comprehensive system or

State

highways throughout the State by reimbursement to counties of funds theretofore expended by the county for the construction of designated highways to be then

acquired by

and

taken over

by the State, and by the construction of additional designated State roads in each and every county by the State agency charged with the construction of State highways, the State Road Department.

There was no other construction under which the Act could have been held valid. The collection of a tax of any sort in one county and spending it in another can only be upheld upon the ground that it is being so spent for a State purpose, as distinguished from a county purpose, or that it is being spent for a purpose specifically authorized by the Constitution, such as aid to county public schools.

I apprehend that had the paragraph of Chapter 15649,

supra,

reading as follows: “When any county in the State of Florida no longer participates under the provisions of this Act in the return to or for it of moneys contributed for the construction of state roads, as herein provided, and when these roads shall have been constructed which are at the time of the passage of this Act a part of the first, second and third preferential system of state roads within .such county, then and thereafter all funds' thereafter derived from the Second Gas Tax theretofore allotted or appropriated to or for said county shall be' transferred to

*185

the State Road License Fund of the State of Florida in the manner and to be expended as provided by law.” been written so as to read: “When any county in the State' of Florida no longer participates under the provisions of this Act in the return to or for1 it of moneys contributed for the construction of state roads, as herein provided, and when these roads shall have been constructed which are at the time of the passage of this Act a part of the first, second and third preferential system of state roads within such county, then and thereafter all funds derived from the second gas tax theretofore allotted or apportioned to or for said county shall be transferred to the county road and bridge fund of the respective counties to be used by such counties as other county road and bridge funds are used,” that this Court would have held that part of the Act invalid for and because of the identical reasons for which it held certain provisions of Chapter 14575, Acts of 1929, invalid. See Amos v. Mathews, 99 Fla. 1 , 126 Sou. 308 . County roads which have not been designated as State roads or state aid roads by the Legislature are county projects and the construction thereof remains a county purpose until the Legislature shall have declared otherwise, The county road and bridge fund is a fund created to be used for county purposes and if this gasoline tax, which is beyond question now a state tax, can be diverted to a county fund to be used for a county purpose, although that county purpose is one in which the State has a vital interest, it necessarily follows that a general sales tax could be levied and distributed to the counties to augment any county fund which is created for the benefit or use in accomplishing any purpose in which the State has also a vital interest and I know of no county governmental purpose for which money may be expended which, if properly handled, does not redound to the benefit of the State at large.

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' Our Court went ’the limit, it appears to me, when it held Chapter 15,659,

supra,

valid and it only did so upon the theory that the Act provided in effect that all the money derived from the tax thereby levied should be used for state purposes under direction of State authority to reimburse the counties for property, to-wit roads, which the State had taken over or to aid the counties in the construction of roads which the Legislature has designated as State roads and had directed the State Road Department to construct.

I append hereto and make a part hereof a financial statement furnished by the State Treasurer showing the status of collections, apportionments and disbursements of the gas tax collected under the provisions of Chapter 15659, Acts of 1931, as the same applied-to those counties as to which litigation concerning this gas tax is now pending in this Court, from which it will be* observed that as to the County of Washington here under consideration, it had $101,00 of bonds outstanding as of January 1, 1931; gas tax certified as due to the county under the provisions of Chapter 15659, Acts of 1931, were $79,756.98. There has been paid to or for the benefit of Washington County $283,296.50. Of this amount $235,539.52 has been turned over to the County Commissioners of Washington County and $47,756.98 only has been applied to the payment on bonded debt. There is now to the credit of the road and bridge bond fund from .gas tax $4,551.10 and there is outstanding road and bridge bonds as of to date $94,000.00 (Sept. 20, 1937).

The bonded debt for roads and bridges is only $7,000.00 less than it was on January 1st, 1931, and the county has received from the gas tax fund almost three times as much as was certified as due it under the provisions of Chapter

*187

15659, supra, and there is nothing due to the county under the provisions of that chapter.

The tabulation as to other counties will not be discussed in this opinion but the figures may be applied by the reader to the several counties as they appear. These figures are included herein for the purpose of showing the extent to which the provisions of Chapter 15659,

supra,

have been distorted and the funds arising from the gas tax applied otherwise than in accordance with the provisions thereof.

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Note—Column 3 includes gasoline repaid to Counties under Chapter 15659 as well as that which has been paid them under sundry special Acts of Legislature 1933 and 1935 sessions. Jackson County—$280,373.46 of amount shown was paid to State Road License Fund. Wakulla County—$12,655.59 of amount shown was paid to State Road License Fund. All disbursements.are made by Board of Administration Warrants issued by the Comptroller

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against the State Treasurer as County Treasurer

Ex-Officio.

The foregoing as shown by the records of my office. This Sept. 20, 1937.

W. V. Knott,

State Treasurer as County Treasurer

Ex Officio.

Much has been said (especially recently) about the sacredness of our Constitution. I am convinced that there are more people who praise and preach the Constitution than there are. who respect and follow its precepts. But it is certain that when courts ignore its mandates and disregard its provisions and cease to hold to it as the guiding star, we shall soon be on the rocks where democratic governments are destroyed.

Being convinced that the Act involved violates the Constitution, I must hold that the motion to quash the alternative writ should be granted.

Ellis, C. J., concurs in the conclusion.

Brown, J., concurs.