Opinion
6 Div. 933.
June 26, 1919.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Allen Fisk, of Birmingham, for appellant.
Fred G. Moore, of Birmingham, and John C. Thompson, of New York City, for appellee.
The special school tax amendment (article 19) proposed by the Legislature (Acts 1915, p. 107), and adopted by the people at the November election, 1916 (see Seay's Annotated Compilation of the Amendments to the Constitution 1901, pp. 3 and 4), by section 1 authorizes counties to levy a 3-mill tax for educational purposes, under the terms and upon the conditions thereby imposed. Section 2 of said amendment provides for the levy of such a tax by the several school districts of any county, etc. Said section, among other things, says:
"Provided further, that no district tax shall be voted or collected except in such counties as are levying and collecting not less than a three-mill special county school tax."
It appears that prior to the election in question Jefferson county had legally levied a special county school tax under the aforesaid constitutional amendment, and as the Birmingham school district is in said county it had the authority to levy a special school tax. The county levy, however, was for 10 years only, while the district levy is for 25 years, and the question that arises is, Does this discrepancy as to length of time nullify the levy of the district tax? It is manifest that the amendment, by section 2, only intended to give a school district the right and authority to, in effect, follow in the footsteps of the county, and that the levy as to duration should be co-ordinate with, and not in excess of, the county levy. It is not the purpose or intent of the amendment to authorize a district to levy this special tax for an indeterminate or excessive period, simply because the county had made a levy for some short period. The district had no right to anticipate or speculate that the county would, upon the expiration of 10 years, renew the levy for 15 more years in order to save its excessive and unauthorized levy, but which could not cure the present defect, should the county attempt to do so in the future.
It is suggested that, notwithstanding the levy may be invalid for 25 years, it could have been validly made for 10 years, and that the excess should have been stricken and not the entire levy. This rule has been applied when dealing with certain contracts when they were otherwise valid but merely exceeded the lawful limit of duration. Mobile Electric Co. v. Mobile, 79 So. 39, L.R.A. 1918F, 667, and cases there cited. But this rule cannot be applied to the question at issue, as it would be a violent assumption on our part to hold that the voters of the district, in voting for a 25-year levy in order to procure certain educational purposes and providing for the issuance of a certain amount and denomination of bonds, would have adopted same had it provided a levy for only 10 years, in order to effectuate the purpose they had in view. To uphold the levy for ten years would fasten upon the district an entirely different proposition from the one submitted to and adopted by the voters. How can this or any other court consistently hold that the voters of the district would have adopted only a 10-year levy to accomplish the purposes desired, simply because they were willing to adopt a 25-year levy for said purpose?
The trial court erred in sustaining the respondent's demurrer to the bill of complaint, and the decree is reversed and one is here rendered overruling same, and the cause is remanded.
Reversed, rendered, and remanded.
All the Justices concur.