Opinion
6 Div. 967.
June 30, 1936. Rehearing Denied October 29, 1936.
Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.
Ernest Matthews, of Birmingham, for appellant.
The Legislature is without power to impose a debt on a county in Alabama, where said county is already indebted in a sum in excess of the limit prescribed by section 224 of the Constitution of Alabama. Lake County v. Rollins, 130 U.S. 662, 9 S.Ct. 651, 32 L.Ed. 1060.
A. A. Carmichael, Atty. Gen., Matt H. Murphy, Sp. Atty. Gen., and Thos. J. Judge, of Birmingham, for the State.
The levy of the gasoline excise tax against counties does not constitute an indebtedness within the purview of section 224 of the Constitution of Alabama. Brown v. Gay-Padgett Hdw. Co., 188 Ala. 423, 66 So. 161; O'Rear v. Sartain, 193 Ala. 275, 69 So. 554, Ann.Cas. 1918B, 593; 7 R.C.L. 953; In re Opinion of the Justices, 230 Ala. 673, 163 So. 105; Hall v. Blan, 227 Ala. 64, 148 So. 601.
This case is similar to that of City of Birmingham v. State (Ala.Sup.) 170 So. 64, in respect to the constitutional points there involved and discussed, except that in this case, defendant filed pleas in which it alleged that the county was indebted in excess of the constitutional limit fixed by section 224, Constitution. Demurrer was sustained to these pleas, and the ruling is assigned as error.
Ante, p. 138.
All that need be said in answer to the contention is that section 224, Constitution, does not apply to current obligations necessary for governmental operations, required by law to be paid, and necessary for it to continue to function. Brown v. Gay-Padgett Hardware Co., 188 Ala. 423, 66 So. 161.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
On Rehearing.
Application for rehearing overruled.
ANDERSON, C. J., and BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur.
GARDNER and THOMAS, JJ., dissent.