Opinion
6 Div. 443.
January 17, 1918.
Appeal from City Court of Birmingham; H. A. Sharpe, Judge.
M. M. Ullman and Cabaniss Bowie, all of Birmingham, and John C. Thomson, of New York City, for appellants. Percy, Benners Burr, of Birmingham, for appellee.
Appellee (complainant in the court below) sought injunction of the city authorities of Birmingham against the issuance of $3,000,000 of bonds of the city authorized by an election held June 5, 1916, and also against the diversion of the special tax of one-half of 1 per centum, which Birmingham, with other municipalities, is empowered to levy by virtue of the provisions of section 216 of the present Constitution. Relief as against the issuance of the $3,000,000 of bonds of the city was denied, but the temporary injunction was issued restraining the city authorities "from using any portion of the taxes collected by the city of Birmingham from the special tax of one-half of 1 per centum which it is authorized to levy and collect by section 216 of the Constitution, otherwise than for the payment of the interest on bonds of the city of Birmingham issued prior to the adoption of the Constitution of 1901, and such as were then expressly authorized to be issued by some act or acts of the Legislature or the General Assembly of Alabama," and including certain classes of bonds not here involved.
The answer admits that the special tax of one-half of 1 per centum, authorized by said section 216 of the Constitution, has been devoted to the payment of the interest on bonds, and the creation of a sinking fund for the payment of the principal thereof, whether said bonds were issued before or after the adoption of the Constitution of 1901, and it is insisted that such application of the proceeds of said special tax is entirely lawful. It therefore appears that the proper application of the proceeds of the special tax of one-half of 1 per centum authorized to be collected by the city of Birmingham, and other municipalities therein named, is the sole question for determination here; and in view of the wide range assumed in the able and ingenuous argument of counsel for appellant, we prefer to confine ourselves strictly to the question as thus presented by this record. That portion of section 216 of our present Constitution here pertinent reads as follows:
"No city, town, village or other municipal corporation, other than as provided in this article, shall levy or collect a higher rate of taxation in any one year on the property situated therein than one-half of one per centum of the value of such property as assessed for state taxation during the preceding year; * * * and provided further, that this section shall not apply to the cities of Birmingham, Huntsville and Bessemer, and the town of Andalusia, which cities and town may levy and collect a tax not to exceed one-half of one per centum in addition to the tax of one-half of one per centum as hereinbefore allowed to be levied and collected, such special tax to be applied exclusively to the payment of interest on bonds of said cities of Birmingham, Huntsville and Bessemer, and town of Andalusia, respectively, heretofore issued in pursuance of law, or now authorized by law to be issued, and for a sinking fund to pay off said bonds at the maturity thereof."
The provision above quoted, referable to the city of Birmingham, is but an adaptation of an amendment to the Constitution of 1875, commonly known as the "Birmingham Amendment," adopted by the voters of the state in the election of August, 1898. The amendment was an addition to section 7, article 11, of the Constitution of 1875, and was as follows:
"And provided further, that this section shall not apply to the city of Birmingham, which city may levy and collect a tax not exceeding one-half of one per cent. in addition to the tax of one-half of one per centum hereinabove allowed to be levied and collected, such special tax to be applied exclusively to the payment of interest on the bonds of the said city of Birmingham heretofore issued by said city in pursuance of law, and for a sinking fund to pay off said bonds at the maturity thereof."
The Legislature of 1898-99 passed two acts, amending Birmingham's charter, concerning the question of taxation; the first of which was passed December 13, 1898, and was in strict conformity with the constitutional provision above referred to as the Birmingham Amendment. The act follows the language of the constitutional amendment, fixing a heavy penalty for the diversion of funds of the special tax for any other purposes than those authorized and required by the statute. Local Laws of Jefferson County, pp. 272, 273. The portion of said act here important reads as follows:
"And the said mayor and aldermen shall have the power to assess, levy and collect taxes on all property in said city for each year, not exceeding one-half of one per centum on the value of said property as assessed for the state taxation the preceding year: Provided, that the said mayor and aldermen shall have the power in like manner to assess, levy and collect a tax not exceeding one-half of one per centum in addition to the tax of one-half of one per centum hereinabove authorized to be levied and collected, to be applied exclusively to the payment of the interest on the bonds of said city heretofore issued in pursuance of law, and for a sinking fund to pay off said bonds at the maturity thereof."
"Sec. 24. That the mayor and aldermen of said city are hereby authorized and required to establish a sinking fund to pay off the bonds heretofore issued by said city in pursuance of law, at the maturity thereof; and they shall appropriate to said fund all moneys arising from the special tax hereinabove authorized to be collected for the payment of the bonds of said city, which shall not be necessary for the payment of the interest on said bonds. And the mayor and aldermen are hereby authorized and directed to invest said sinking fund in the purchase of the bonds of said city of Birmingham: Provided, that the same can be bought at a price satisfactory to the said board of mayor and aldermen, and if said bonds cannot be so bought, said sinking fund shall be invested in the bonds of the United States of America, or in bonds of the state of Alabama, or in the bonds of the county of Jefferson, in the state of Alabama, by said board of mayor and aldermen. And the application or use of any of the moneys collected for the payment of the interest or principal of said bonds as hereinabove provided, for any other purpose than that authorized and required by this act, shall be deemed a felony, and the person guilty thereof, whether he be the mayor of said city, or any alderman so voting, or the treasurer, collector, custodian, agent or servant of the board, must on conviction be imprisoned in the penitentiary for not more than five years, and may be fined not more than one thousand dollars."
On February 23, 1899, the Legislature passed another act (Local Laws of Jefferson County, p. 171) entitled "An act to establish a new charter for the city of Birmingham, Alabama." Section 42 of said act reads as follows:
"Be it further enacted, that the board of mayor and aldermen shall have the power in like manner to assess, levy and collect a tax not exceeding one-half of one per cent. in addition to the tax of one-half of one per cent. in the next preceding section authorized to be levied and collected, to be applied exclusively to the payment of the interest on the bonds of said city heretofore issued in pursuance of law, and which may hereafter be issued in pursuance of law, to take up or refund the outstanding coupons of said bonds, and for a sinking fund to pay off said bonds at the maturity thereof, and no part of the funds raised under the provision of this section shall be applied to any purpose whatsoever other than is indicated by this section."
Section 46 of the same act authorizes and requires the establishment of a sinking fund to pay off the bonds "heretofore" issued by the city, or any bonds that may "hereafter" be issued by the city. It will thus be seen that section 42 of the act of February 23, 1899, provides that the special tax may be devoted to paying the interest on bonds "which may hereafter be issued in pursuance of law," as well as to paying the interest on bonds "heretofore" issued. On February 23, 1899, the Legislature passed an act entitled "An act to authorize the city of Birmingham * * * to buy, build, direct and own, maintain and operate waterworks for the supply of said city * * * and to issue and sell or exchange said bonds for said purposes." Local Laws of Jefferson County, p. 259. Section 4 of this act authorizes the issuance of bonds for the purpose of carrying out the provisions of the act by the city of Birmingham in the sum of $1,000,000. These bonds have never been issued. At the time, therefore, of the adoption of the Constitution of 1901, this act was in full force and effect authorizing the issuance of $1,000,000 of bonds for the city of Birmingham for the erection and operation of a waterworks plant. It is seen that the above-quoted provision of section 216 of the Constitution is a substantial copy of what is known as the Birmingham Amendment, with the exception that in the Constitution of 1901 following the words "heretofore issued in pursuance of law" the following words are added, "or now authorized by law to be issued."
Appellants insist that when reference is had to section 222 of the Constitution, which authorizes the Legislature to pass general laws, giving authority to municipalities to issue bonds upon an election of the people, and in connection with the provisions of section 225 of the Constitution, which authorizes all towns and cities having a population of 6,000 or more, as well as other cities therein named, to become indebted in an amount, including present indebtedness, not exceeding 7 per cent. of the assessed valuation of the property therein, with certain other provisions not necessary to here mention, that the words of section 216 "or now authorized by law to be issued" suffice to include the issuance of bonds subsequent to the Constitution of 1901, under the authorization of sections 222 and 225, although there was no legislative act authorizing the issuance of such bonds at the time of the adoption of the Constitution.
We cannot agree to this contention. Prior to the adoption of the Constitution of 1901, the issuance of municipal bonds was not authorized by general laws, but by special legislative enactments. Mayor v. Wetumpka, 63 Ala. 627; Simpson v. Lauderdale County, 56 Ala. 64; Allen v. La Fayette, 89 Ala. 645, 8 So. 30, 9 L.R.A. 497. Section 222 of the Constitution merely directed in effect the passage of the general laws by the Legislature for the issuance of municipal bonds, and such general laws were passed by the next Legislature, being found in section 1421 et seq. of the Code. We cannot agree to the insistence that the provisions of section 222, which merely formed a foundation for a scheme of laws to be thereafter enacted for the authorization of the issuance of municipal bonds, could by any rules of construction be held to include bonds "now authorized to be issued" at the time of the adoption of the Constitution.
We think the word "authorized" in section 225 of the Constitution means, when considered in connection with the context, "permitted," and that this section was for the purpose of placing a limitation upon the indebtedness of municipalities with reference to the assessed valuation of the real and personal property. Section 216 was to impose a limitation on the taxation of the real and personal property. Each of these sections have a different field of operation, and to adopt the meaning contended for by the appellants would result in holding that the words "now authorized by law to be issued," in section 216, have direct reference to the words "are hereby authorized to become indebted," found in section 225 of the Constitution, and would result in holding that the $3,000,000 of bonds authorized by the election of June 5, 1916, and referred to in the bill, was embraced within the meaning of the words "now authorized by law to be issued" in section 216 of the Constitution of 1901. In short, the argument would lead to the assertion that bonds actually authorized to be issued 15 years after the adoption of the Constitution of 1901, under laws passed subsequent thereto, come within the class designated in the Constitution of 1901 as "now authorized by law." We cannot subscribe to so strained a construction.
Section 216 followed the language of the Birmingham Amendment of 1898, and specifically required that the proceeds of this special tax of one-half of 1 per centum should be applied to the payment of the interest on bonds, and a sinking fund for the payment of the principal thereof theretofore issued. Said section made use of the additional words "or now authorized by law to be issued," which were clearly inserted so as to protect the issuance of the bonds for the erection and operation of the waterworks plant authorized to be issued by the act of February 23, 1899, and which at the time had not been issued.
It is further insisted that the bonds issued subsequent to the Constitution of 1901 were issued pursuant to the authority of section 42 of the act of February 23, 1899, above quoted, which authorized that the proceeds of this special tax should be devoted not only to bonds "heretofore issued," but to those which "may be hereafter issued"; and that succeeding administrations have, under the authority of that act, issued a large amount of bonds, which are set out and enumerated in the answer. And that, therefore, there has been both legislative and executive construction upon section 216 of the Constitution, which, having been so long followed should now be acquiesced in by the courts, and held of binding force. This argument is of course based upon the theory of contemporaneous construction referred to in the authorities. In United States v. Hermanos y Compania, 209 U.S. 337, 28 Sup. Ct. 532, 52 L.Ed. 821, the court said:
"We have said that when the meaning of a statute is doubtful great weight should be given to the construction placed upon it by the department charged with its execution. * * * And we have decided that the re-enactment by Congress, without change, of a statute, which had previously received long-continued executive construction, is an adoption by Congress of such construction."
We are also cited to the following language in Pennoyer v. McConnaughy, 140 U.S. 23, 11 Sup. Ct. 706, 35 L.Ed. 363:
"The principle that the contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction of the statute by the courts, is so firmly imbedded in our jurisprudence, that no authorities need be cited to support it. On the faith of a construction thus adopted, rights of property grow up which ought not to be ruthlessly swept aside, unless some great public measure, benefit or right is involved, or unless the construction itself is manifestly incorrect."
The question of contemporaneous construction has also received consideration by this court. Ex parte Hardy, 68 Ala. 303; Ex parte Selma Gulf R. R. Co., 45 Ala. 696, 6 Am. Rep. 722; Moog v. Randolph, 77 Ala. 597.
It may be seriously questioned that the principle here insisted upon by counsel for appellant has application to the situation as here presented. The provisions of the Constitution referred to as the Birmingham Amendment give no room for doubt or uncertainty in regard to the application of the proceeds of this special tax of one-half of 1 per centum, and left nothing to be construed by the Legislature. The act of February 23, 1899, authorizing the proceeds to be applied also to the payment of the interest on bonds issued "hereafter" as well as "heretofore," was plainly in the teeth of this constitutional amendment, and violative thereof, and could in no manner be considered as a legislative construction. Just previous thereto, the Legislature had passed an act which dealt solely with the question of taxation, and in providing as to the distribution of the proceeds of this special tax followed the language of the Birmingham Amendment, requiring the same to be applied exclusively to bonds "heretofore" issued. There is no more reason for the insistence that the act of February 23, 1899, was a legislative construction of the Birmingham Amendment to the Constitution than was the act of December 13, 1898.
It may also be doubted that the situation here presented is brought within the doctrine, as contended for by the appellants, known as executive construction. This doctrine has been given effect in some of the authorities because of the fact that the department of government charged with its execution has placed upon a statute of doubtful meaning a certain construction, which has been followed from time to time. It may also be questioned that the municipality in the instant case was charged, within the meaning of the doctrine here insisted upon, with the execution of any of the provisions of section 216 of the Constitution, but rather the language of said section, in so far as the distribution of the proceeds of the special tax was concerned, was prohibitive, and the municipality was charged more with its obedience than with its execution.
But, aside from these considerations, and even conceding for the purposes of this case that the doctrine contended for could, under ordinary circumstances, find application, we are yet of the opinion it could not be here given effect for still another reason. The authorities cited by counsel for appellant disclose that the principle has been applied when the meaning of the statute was doubtful. United States v. Hermanos y Compania, supra. Upon this question the following language from Cooley's Constitutional Limitations (7th Ed., p. 105) is pertinent:
"Where, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the lawmakers. 'Contemporary construction * * * can never abrogate the text; it can never fritter away its obvious sense: it can never narrow down its true limitations; it can never enlarge its natural boundaries.' "
We are of the opinion that the pertinent provisions of section 216, above referred to, in regard to this special tax of one-half of 1 per centum, are plain and clear, and the language is unambiguous as to the words "heretofore issued in pursuance of law." As to this, there can of course be no doubt, and in the light of the act then existing, authorizing the issuance of the $1,000,000 of bonds for the waterworks plant for the city of Birmingham, which had not been issued, we think the language "or now authorized by law to be issued" is equally plain and unambiguous, and no room is left for legislative or executive construction. We entertain no doubt as to its meaning, and therefore the principles invoked can have no application. As said by this court in State ex rel. Little v. Foster, 130 Ala. 154, 30 So. 477:
"The framers of the Constitution 'must be understood to have intended what they said. * * * We can only learn what they intended, from what they have said. It is theirs to command, ours to obey. When their language is plain, no discretion is left to us. We have no right to stray into the mazes of conjecture, or to search for imaginary purposes.' "
We are reminded in brief of counsel for appellant, as we were also in the oral argument upon the submission of the cause, of the great importance of the decision in this case, and the serious consequences that will result to the city of Birmingham, and the embarrassment to follow in its fiscal affairs. Deliberate consideration has been given to the elaborate and forceful argument of counsel for appellant. With these consequences we cannot here be concerned, and, although we may reach the conclusion with some reluctance, yet it is of course our plain duty to declare the law. In this connection the following quotation adopted by this court in Sadler v. Langham, 34 Ala. 311, is appropriate:
"It is highly probable that inconveniences will result from following the Constitution as it is written. But that consideration can have no weight with me. It is not for us, but for those who made the instrument, to supply its defects. If the Legislature or the courts may take that office on themselves, or if under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written Constitutions will be more than useless."
We are persuaded the decree of the court below was correct, and it results that it will be here affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.