Carlton v. Mathews (103 Fla. 301, 1931)

Campbell, Circuit Judge:

A citizen, resident and taxpayer of Duval County, Florida, by bill of' complaint brought in the Circuit Court for Leon county, against the Governor, the Comptroller and the Treasurer of the State, whose offices are at the capítol of the State in Leon county, alleges in effect that Chapter 15659, Acts of 1931, and portions thereof violate stated organic provisions and prays; to have the statute adjudged to be void; to have the “Second Gas Tax” levied by such act declared to be void; to have “the attempted appropriation of the proceeds of such second gas tax” decreed to be void; to require such tax, if held to be a county tax, “to be appropriated to the several counties as collected and paid in by the several counties; ’ ’ and for appropriate injunctions and for general relief.

The Court overruled a demurrer to the bill of complaint filed by the State officials and ordered:

“That Ernest Amos, as comptroller of the State of Florida, be, and he is, hereby restrained and enjoined until the further order of the Court from drawing his order on the Treasurer of the State of Florida, for the amount of money with the State Treasurer in the £ State Roads Distribution Fund,’ or any part thereof, that may have been or that may be, derived from what is termed the ‘Second Gas Tax’ in the Act known as House Bill Number 65X (Chapter 15659) enacted by the Legislature of the State of Florida, at the first Extraordinary Session of the Legislature of 1931, and that W. V. Knott, as Treasurer of the State of Florida, be and he is hereby restrained and enjoined until the further order of the Court from paying any such order or warrant as the said Comptroller of the State of Florida is herein restrained from drawing.”

An appeal was taken by the defendant State officials who now apply for a supersedeas of the restraining order.

As only questions of law are involved and as counsel for all parties have fully and ably argued the merits of the bill of complaint upon which the restraining order was made, the court will adjudicate the merits of the cause to conserve the interests of all concerned. Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963; Ann. Cas. 1914B 916; Antonio v. City of Tampa, 87 Fla. 82, 99 So. 324; Anderson v. City of Ocala, 87 Fla. 257, 99 So. 667; Hathaway v. Munroe, 97 Fla. 28, 119 So. 149.

Three errors are assigned by the appellants, the first being that' the court erred in overruling the demurrer to the bill of complaint, and the second and third, that the court below erred in granting the restraining order against the Comptroller of the State, and the State Treasurer respectively.

The demurrer to the bill of complaint questions its sufficiency in the following particulars, viz:

(a) The rights of the complainant to maintain the suit.

(b) The sufficiency of the allegations of the bill of complaint to warrant the relief prayed for therein.

(c) The failure of the bill of complaint to allege facts showing that' the act or any part thereof is in violation of the State or Federal Constitutions.

(d) The failure of the bill of complaint to show that the act does not constitute a valid exercise of legislative power and authority.

The bill of complaint attacks House Bill 65N, Chapter 15659, Laws of Florida, Acts 1931, as being violative of certain provisions of the Constitution of the State of Florida, and of the United States of America.

We shall first consider the attack made in the bill of complaint upon the constitutional enactment of the law. In paragraphs ten and eleven it is claimed that the law was never legally passed through the Legislature, in that Sections 14 and 17, of Article 3, of the Constitution of the State of Florida were violated in the passing of the Act.

Paragraph ten alleges in substance, that the Journals of the House of Representatives, and the Senate show that ■the bill originated in, and was passed by the House, on June 12; that the Journal of the Senate shows that the bill was amended and passed by the Senate on June 15; that the Journals of the House show that on June 17th, a further amendment was offered, in the House, and that the amendment was “supposed” to have been adopted by the House on June 18, is shown by the Journal of the House of that date; that if it is construed and determined that the House in which the bill originated has power to further amend the bill after it has been amended and passed the other house, then Article 3 of the Constitution is further violated, in that the House of Representatives-never concurred in the Senate amendment nor adopted the House substitute for the Senate amendment, and never concurred in the substitute for the Senate amendment, as shown by the Journal of the House of Representatives of June 17 and June 18; that it nowhere appears that the substitute for the Senate amendment to the bill, was ever voted upon or adopted, that it does appear on page 27 of the House Journal of June 18, that a motion was adopted to concur in the Senate amendment' as amended, when the Journal shows there was never adopted any amendment to the Senate amendment.

We might say, in passing that, we have examined the House Journal of June 18, 1931, and we find that on the date above mentioned the motion to adopt House substitute for Senate amendment to House Bill 654 was passed. The figure “4” is without doubt a Typographical error. The title as quoted in the Journal is identical with the title to House Bill 65X, as amended. See Morris vs. City of Gainesville, 60 Fla. 338, 52 So. 739.

It is contended in paragraph eleven of the bill of complaint that House Bill 65X never passed as required by Section 17 of Article 3, of the Constitution, in that the same was not read on three separate days, and two-t'hirds of the members present did not deem it expedient to dispense with the requirement, and that the same was not read by its sections on second reading or final passage. Article III of the constitution contains the following:

“Any bill may originate in either House of the Legislature, and after being passed in one House may be amended in the other.” Section 14.

“Every bill shall be read on three several days, unless two-t'hirds of the members present when such bill may be pending shall deem it expedient to dispense with this rule. Every bill shall be read by its sections on its second reading and on its final passage, unless on its second reading two-thirds of the members present' in the House where such bill may be pending shall deem it expedient to dispense with this rule. The vote on the final passage of every bill or joint resolution shall be taken by yeas and nays, to be entered on the journal of each House * * .” Section 17, as amended in 1896.

The legislative Journals show that at an extraordinary session of the legislature House Bill No. 65X was introduced in the House by a two-thirds vote on June 12, 1931, the title being:

“A bill to be entitled An Act relating to taxation, levying and imposing an excise tax on gasoline and other like products of petroleum in addition to other taxes thereon; levying and imposing a license tax on every dealer in gasoline or any other like product of petroleum; providing for the report of sale of such commodities, and the collection and payment of such taxes, creating special funds for the reception of such taxes; providing the purpose of such taxes, and for the deposit, appropriation and disposition of the proceeds derived from such taxes, and prescribing the duties of certain officials with reference thereto; and declaring certain roads to have been and to be built for State purposes and as being State undertakings; repealing' Chapter 14573, Laws of Florida, Acts of 1929, relating to the subject of gasoline taxes; repealing Chapter 14575, Acts of 1929, relating to the subject of gasoline taxes and raising special revenue for educational purposes, and all laws in conflict with this Act and penalties for violation hereof; and other matters in connection with all of the above;

that on the same day House Bill No. 65X was on a two-thirds vote read a second time by its title and also on a two-thirds vote read a third time in full and passed by a vote of 84 to 7; that on June 15, House Bill No. 65X was on a two-thirds vote received by the Senate, on a two-thirds vote read the second time in full, and the title to the bill was stricken, the following title being substituted:

“An Act relating to taxation, levying and imposing an excise tax on gasoline and other like products of petroleum in addition to other taxes thereon; levying and imposing a license tax on every dealer in gasoline or any other like product of petroleum; providing for the report of sale of such commodities, and the collection and payment of such taxes, creating special funds for the reception of such faxes; providing the purposes of such taxes, and for the deposit, appropriation and disposition of the proceeds derived from such taxes, and prescribing the duties of certain officials with reference thereto, and declaring certain roads to have been and to be built for State purposes and as being State undertakings; repealing Chapter 14575, Laws of Florida, Acts of 1929, relating to the subject of gasoline taxes; repealing Section 1 of Chapter 14573, Acts of 1929, relating to the subject of gasoline taxes, and all laws in conflict with this Act; providing for the enforcement of this Act and penalties for violation hereof.”

Then all after the enacting clause was stricken, and other provisions entered at length in the Journal, which are of the same general nature and in accord with the substituted title were inserted in lieu of the stricken provisions. On a two-thirds vote the bill as amended was read the third time in full and passed by a vote of thirty to seven. Honse Bill No. 65X as amended and passed by the Senate was received by the House June 16. On June 18, the House by a fifty-eight to thirty vote adopted a substitute amendment for the Senate amendment to House Bill No. 65X by striking out all after the enacting clause and inserting in lieu thereof other provisions of the same general nature which were entered in full upon the Journal. By a vote of 60 to 31 the House concurred in Senate amendment as amended to House Bill No. 65X. The title to House Bill No. 65X as amended by the Senate was then stricken and the following inserted:

“A bill to be entitled An Act relating to taxation, levying and imposing an excise tax on gasoline and other like products of petroleum in addition to other taxes thereon; levying and imposing as a license tax on every dealer in gasoline or any other like product of petroleum; providing for the report of sale of such commodities, and the collection and payment of such taxes; providing the purposes of such taxes, and for the deposit, appropriation and disposition of the proceeds derived from such taxes, and prescribing t'he duties of certain officials with reference thereto, and declaring certain roads to have been and to be built for State purposes and as being State undertakings; repealing Chapter 14575, Laws of Florida, Acts of 1929, relating to the subject of gasoline taxes and raising special revenue for educational purposes, and all laws in conflict with this Act; providing for the enforcement of this Act and penalties for violation hereof.”

“And Senate amendment, as amended, to the title of House Bill No. 65X was concurred in by the House of Representatives. ’ ’

On June 19th, the Senate by a vote of twenty-eight to one concurred in the House amendment to Senate amendment of House Bill No. 65X striking out all after the enacting clause and inserting other provisions in lieu thereof. The Senate also concurred in House Bill No. 65X striking out the title and inserting another title as shown above. House Bill No. 65X was enacted as a law and upon approval by the Governor became Chapter 15659, Acts of 1931.

Thus it appears that the House of Representatives duly passed a bill by a yea and nay vote entered on the Journal of the House, and the Senate amended the bill by striking out the title and inserting another title of the same general nature, which amended title was spread on the Senate Journal, and thereafter further amended the House bill by striking out all after the enacting clause and inserting in lieu thereof provisions that relate to the general subject covered by the original House Bill and that have proper relation to the original and amended title of the bill, which amendment was spread in full on the Senate Journal, and then by a yea and nay vote entered on the Senate Journal, the Senate duly passed the bill as amended, after a full reading on final passage. The House amended the amended bill passed by the Senate, and the House, after the bill was read in full, by a yea and nay vote entered on the Journal passed the amended bill as amended by the House, and the Senate concurred in the action of the House. This is a compliance with the provision of the constitution that upon final passage of a bill the vote shall be taken by yeas and nays to be entered upon the Journal of each House. The constitution does not require the vote by which the reading of bills on separate days or by sections on second reading may be dispensed with, to be by yeas and nays or to be entered on the Journals. See State v. Dillon, 42 Fla. 95, 28 So. 781; State ex rel. v. Brown, 20 Fla. 407; State ex rel. v. Hocker, 36 Fla. 358, 18 So. 767; Mathis v. State, 31 Fla. 291, 12 So. 681; Amos v. Gunn, 84 Fla. 285, 94 So. 165.

“The silence of legislative journals upon any step in the enactment of a law, is not affirmative evidence to the courts that such a step was, or was not taken, except in those particular respects wherein the constitution mandatorily requires such journal expressly to show the action taken; such for example as the entry of the ayes and nays upon the final passage of a bill. ’ ’ West v. State, 50 Fla. 154, 39 So. 412. See also, Turner v. Hocker, 36 Fla. 856, 18 So. 767; State ex rel. Buford v. Carley, 89 Fla. 361, 104 So. 577.

In the case of State ex rel. Buford v. Carley, supra, we said,

“A statute is presumed to have been duly enacted un-less the legislative journals show that the mandatory requirements of the Constitution for the enactment of the statute were not complied with in the consideration and passage of the particular bill.”

and again,

“Our Constitution does not require that the Journal shall show affirmatively that a bill was read “by Sections” on its final passage, and if they do not so show, the presumption, in the absence of affirmative evidence to the contrary, would be that' it was read by Sections as required. ’ ’

Having found that the law under consideration was legally enacted, we now turn to the other ground set forth in the bill of complaint, upon which this law is attacked as being violative of certain provisions of the Constitution. The complainant alleges in paragraphs seven of the bill of complaint, that Chapter 15659, Laws of Florida, 1931, is void and of no effect, that the levy of the tax provided for therein, as also the appropriation of the moneys derived from the levy of the Second Gasoline Tax, are void and of no effect, being in violation of the Constitutions of the State of Florida, and of the United States of America.

It is alleged in the bill of complaint that the law, as also the levies of the taxes, and the appropriation of the funds, derived from such levies, are violative of Sections 2, 3, 4, 5 and 6 of Article IX, and Section 12 of the Declaration of Rights of the State of Florida, and the Fourteenth Amendment of the Constitution of the United States of America.

In the brief filed by the appellee in this court, it is asserted, that the purposes, aims, and objectives of the Legislature in passing Chapter 15659, Laws of Florida, Acts of 1931, (House Bill 65X) were:

1. To levy State taxes and appropriate State money for the primary purpose of paying in whole or in part the principal or interest on the bonds of its political subdivision, directly or indirectly, or contingently, by or through a “scheme”, as appellee calls it;

2. To recognize and declare that all moneys spent by counties and districts for county or district purposes upon all roads heretofore designated State roads, to have been spent wholly in the performance of a State function and that such expense should be wholly borne by the State, and that such advances, by the counties and districts should be repaid by the State to the counties and districts.

Before taking up for consideration, the attacks made upon the constitutional validity of the law in question, it will be well for us to first examine the law.

In our discussion of the enactment of the law, we have already quoted its title in full, therefore we will not quote it again. From the title it appears that the general purpose of the bill is to provide for the levy and collection of an excise tax on all gasoline and other petroleum products not already taxed, to raise revenue for State purposes. If provides for the appropriation and the disbursement of the funds arising from said tax, and designates certain purposes for which this revenue shall be used. In determining the necessary State expenses to which the moneys derived from this tax shall be used to defray, and, in explanation of snch determination upon the part of the Legislature, it is declared that certain roads have been built, and are •t'o be built for State purposes and as State undertakings.

Section one provides for the levy of a license tax of five dollars on each dealer in gasoline and other petroleum products in the State; also an excise fax of six cents per gallon on every gallon of gasoline or other petroleum products sold within the State. This six cents gasoline tax being by the terms of the Act divided as follows:

“First Gas Tax.- A tax of three cent's per gallon apportioned for the use of the State Road Department.”

‘ ‘ Second Gas Tax: A tax of three cents per gallon to be apportioned as provided by Section 8 of this Act.”

In Section three of the Act, it is provided that the funds realized from the levies of said First Gas Tax, and Second Gas Tax shall be paid into certain accounts kept' by the State Treasurer, viz:

“First Gas Tax shall be paid into the ‘State Roads License Fund.’

“Second Gas Tax shall be paid into the ‘State Roads Distribution Fund’ which said Special Funds are created for the reception of same.”

The Sections of the law most strenuously assailed in the complainant’s bill of complaint are Sections 7, 8, 9 and 10. We will therefore quote them in full:

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 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 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 cost of the construetion 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 and 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 suc'h 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. (a) 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 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 construetion 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 district or other special taxing districts of such counties in the building and construction of roads that are 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 Roads Distribution Fund” account. The Comptroller shall each month, draw his order on the Treasurer of the State of Florida for the full net 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 Road Distribution Fund” 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 installment's 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 proceeds 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

3. The proceeds of One cent (lc) of said Second 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 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 district's, 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.

(e) Whenever the amount furnished, advanced, paid out, contributed or expended by any county and/or special road and bridge district or 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 shall continue to participate in the distribution of the three (3c) cents 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 designated 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 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 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 the State Road License Fund of the State of Florida in the manner and to be expended as provided by law.

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 oí 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.

SECTION 10. For the purposes of this act, any funds derived from the sale of any bonds; time warrants, certificates of indebtedness, or other general obligations of any county, or special road and bridge district of any county, heretofore turned over or delivered to the State of Florida to the Credit of the State Road Department by any county, or special road and bridge district thereof, to apply toward the construction or building of any state road, shall be considered as an advance of payment to said State Road Department and subject to repayment and return to such county under the provisions of this Act to the amount only of the proceeds received by the State of Florida from the sale thereof. Any funds, bonds, time warrants, certificates of indebtedness, or other general obligation, of any county, or any special road and 'bridge district, turned over and delivered to the State of Florida to the use of the State Road Department in constructing state roads, and now remaining in the State Treasury, and not now contracted to be expended, shall be returned to' the respective counties and/or special road and bridge districts that’ turned over and delivered the same, as soon as practicable, by the proper state officials.

The First Gas Tax is not being assailed and therefore we shall consider the law as it' pertains to the “Second Gas Tax.”

It is conceded by both parties that the “Second Gas-Tax” is a State tax. The appellants contend however that it is levied for, and appropriated to, a legitimate State purpose; while the appellee contends that' it is a State tax levied and collected to be appropriated and disbursed in the payment of the principal and interest on county, and road and bridge district bonds, and for the purpose of paying to the counties and special and road districts for roads already constructed as County or district roads, and for moneys advanced and paid by such political subdivisions, for the construction of such roads as local undertakings. In other words that it is a State Tax, to be used according to the provision of the Act for County purposes,

For several years in our State the levy and collection of a gasoline excise tax, and the construction and maintenance of roads have been so interrelated the one to the other, that a consideration of the one almost of necessity involves the consideration of the other. In as much as the matter of the expenditures of money by the counties and special road and bridge districts and other taxing districts, in the construction of roads, and advanced and contributed for the construction of roads, which have by legislative enactments become State roads, is involved, we deem it proper to refer to some of the statutes regarding the duty and the authority of counties relative to the construction etc. of public roads and also to briefly review the history of road building, and also the evolution, so t'o speak, in road construction in the State.

We And that counties and districts are and have been authorized to construct-public roads. Sections 2436 (1588), 2309 (1531), 2666 (1634), 2679 (1647), 2687 (1655) et seq., Compiled General Laws, 1927.

As to State aid roads, see Sections 1632, 1637 (1197), 1657, Compiled General Laws, 1927. See also subsequent acts. In the year 1921, the Legislature of Florida enacted a law providing for counties and Special Road and Bridge Districts, to aid in the construction of State and State Aid roads; this law is known as Chapter 8553, Laws of Florida, the title and Section one of which are as follows:

“AN ACT Authorizing Any Department of the State and Any County and Any Special Road and Bridge District in This State to Aid in the Construction or Maintenance of Any State or State Aid Road by Contributions to the State Road Department, of Cash, Bonds, Time Warrants or Other Things of Yalue, Made Heretofore or to be Made Hereafter,'in the Construction or Maintenance of Roads, and Authorizing the State Road Department to Accept and Receive Such Aid or Any Such Contributions, and Use the Same in the Construction or Maintenance of State or State Aid Roads. To Construct Roads and Bridges in said Counties as a Part of the State Highway System with the Proceeds of the Several County Road Bonds Issued and to Obtain Federal Aid in Connection Therewith.

Be It Enacted By the Legislature of the State of Florida:

SECTION 1. Any Department of1 this State, and any county, or any special road and bridge district in this State, be and is hereby authorized to aid in the construction or maintenance of any State or State Aid Road, by contributions to the State Road Department of cash, bonds, time warrants, or other things of value in the construction or maintenance of roads, and the State Road Department be and is hereby authorized to accept and receive such aid and any such contributions and to dispose and use the same in the construction or maintenance of any State or State Aid Road. And the State Road Department be, and is hereby granted authority to enter into agreements with the- County Commissioners of the several counties of the State of Florida,- in which county road bonds have been, or which shall hereafter be voted by the people of said county, and in which one or more roads of said county has or have been or shall hereafter be designated as a part of the system of State highways or as a State Aid Road,‘whereby the State Road Department shall construct the roads and the bridges incident thereto, which shall be, or shall have been so voted to be constructed by the people, and in accordance with specifications which shall be agreed upon between the said State Road Department and the Connty Commissioners of said connty and to receive from the said Counties in consideration thereof, the proceeds of the sale of the said county bonds so voted, the-net amount after deducting expenses and commission on the sale and administration of said bonds. The State Road Department in no instance to receive from said counties an amount in excess of the actual cost of the construction of said roads.”

The right to create “incorporated districts” is recognized in section 10, Article IX.

For many years beginning in the early territorial days the public roads in Florida were constructed and maintained by the counties pursuant to statutory authority. See “An Act concerning roads, highways and ferries, “approved September 13, 1822; Thompson’s Digest, p. 139; McClellan’s Digest, p. 898, sections 2436 (1588), 2451 (1602), 2163 (1475), Compiled General Laws 1927: This policy proved inadequate to provide sufficient and suitable-highways to meet the requirements of modern transportation in a rapidly growing State of large areas.

In recent years extensive systems of hard surfaced roads have been constructed throughout the State of Florida by the State and by counties, and special taxing districts by the use of the proceeds of ad valorem and excise tax levies and by special assessments and bond issues by counties and special taxing districts, all under legislative authority. -See Chapter 6883, Acts 1915 and amendatory Act's; section 2309 (1531); 2666 (1634) ; 1632 (1192); 1657 et seq., Compiled General Laws, 1927. Chapter 9311, Acts 1923, designated and established roads to “constitute the system of State roads of the State and when located and constructed by the State Road Department shall become and be the property of the State.” Subsequent statutes added other roads to the State system of roads. -Section 1657, Compiled General Laws, and Acts of 1929, 1931. Section 1537 (1197) Compiled General Laws 1927, contains a provision that “the rights of way of all roads or highways laid out or constructed or taken over by the said.- State Road Department now, or hereafter, the property of any of the counties of this State, is hereby declared to be the property of the State.”

No State bonds have been issued for road construction purposes because the constitution forbids the issue of State bonds except “for the purpose of repelling invasion or suppressing insurrection or for the purpose of redeeming or refunding bonds already issued at a lower rate of interest.” Section 6, Article iX. There are now no outstanding bonds of the State of Florida to be redeemed'br refunded.

All the public roads in the State whether constructed by State funds or by county or district taxation or bond issues, are subject to State control under appropriate legislation; and their construction may be paid for as statutes direct in the absence of organic limitations. The constitution of the State contains no provisions that expressly regulate or limit the means or ¡method of construction or maintenance of public highways; nor does, the constitution forbid the counties and districts of the State to issue bonds for -the construction of county and district roads.

The legislative policy of liberally providing for the construction of separate systems of State, county and district highways by means of State taxation and by county and district taxation, special assessments and bond issues by counties and districts, has been modified, since the construction of good roads in nearly all sections of the State. The present policy is to curtail expenditures for further road eonstruet'ioh, and by statute to provide additional means with which to- pay for public roads already in whole or in part constructed by governmental subdivisions under legislative authority, many of which roads have been by statute made a part of the State highway system.

There is great inequality among the counties of the State as to their population, their assessable property values and their area. The more populous counties generally are smaller in area while the more sparsely populated counties have greater areas and consequently more road mileage and less financial resources. County or district boundary lines have no controlling relation to the State system of roads, and the county and district roads generally connect with roads extending into other counties, so that the public roads in all parts of the State are freely used by the general public without reference to county or other boundary lines! Sales of gasoline for immediate consumption are greater in populous communities and at junction and terminal points, but the gasoline so sold is used for motor vehicle transportation over the public roads without reference to the sales points or to county or local boundary lines. Such diverse conditions require the exercise of legislative judgment and discretion that is plenary in providing public roads when no applicable provision of organic law is violated.

In the consideration of the Act of the Legislature involved in this case, we are called to deal with a number of propositions of law. They are:

First: Whether or not the Second G-as Tax provided for in Chapter 15659, Laws of Florida, Acts 1931, is a State or a County excise tax.

Second: If the Second Gas Tax is held to be a State tax, whether or not the primary purpose of the levy of such tax and the appropriation of the funds derived from such levy is to pay the principal and interest on the bonded indebtedness of counties and for road and bridge districts, or other taxing districts in the counties.

Third: Whether or not, under the Constitution of Florida, the Legislature can, by statute provide for the reimbursement to counties and road and bridge districts of moneys used by them in the construction of roads or advanced, contributed and paid by them toward the construction of roads which had been and were at the time of the passage of the law designated and taken over by the Legislature as State roads.

Fourth: Whether or not the appropriations provided for in the statute are sufficiently definite and certain to meet the requirements of the constitution, and whether such appropriations are valid.

Fifth: Whether or not the Act embraced more than one subject and matters germane thereto'; and whether or not the subject is briefly stated in the title of the Act.

Sixth: Whether the Act denies to the appellee the equal protection of the law; and does it deprive him of his property without due process of law:

It is conceded by both appellant and appellee that the Second Gas Tax provided for in this law is a State tax. And we think the parties are correct in their conclusions. The Second Gas Tax, the levy of which- and the appropriation and disbursement of the proceeds, of which are provided' for in House Bill 65X, Chapter 15659, Laws of Florida, Acts 1931, is in our opinion a State tax.

The burden of the appellee’s contention is, that the act undertakes to appropriate, and disburse this State tax, to the payment of county and road and bridge district bonds; and that, in so doing, it violates the following provisions of Article IX of the Constitution of Florida, to-wit:

4 4 Section 2. The Legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year, and also a sufficient sum to pay the principal and interest of the existing indebtedness of the State.”

and

“Section 6. The Legislature shall have power to provide for issuing bonds only for the purpose of repelling inyasion or suppressing insurrection or for the purpose of redeeming or refunding bonds already issued at a lower rate of interest.”

The appellee claims that the holding of this court in the ease of Amos v. Mathews, 99. Fla. 1, 126 So. 308, is con-elusive of this proposition, and it is confidently asserted that the opinion in the cited case is decisive of the case at bar. In that case it is said,

‘ ‘ The Legislature has no power to levy a State tax for the purpose of paying county or district bonds. If levied as State taxes, the second and third gas taxes levied by Chapter 14575, Acts of 1929, would be repugnant to the Constitution and void.” (Italics supplied.)

The provisions of the statute considered in the case of Amos v. Mathews, supra, were materially different from the provisions of the statute being considered in the instant case. In the former case the court was construing the provisions of Chapter 14575, Laws of Florida, the same being the Gasoline Tax Act of 1929. In that case the court was considering the second and third gas tax provided for in the Act, which provisions were as follows:

‘ ‘ Second gas tax: A tax of one cent per gallon to be apportioned to the several counties respectively;

Third gas tax: A tax of one cent per gallon to be apportioned to each county in the State in the proportion that the indebtedness authorized, issued and outstanding, in the County for road purposes or for road and bridge purposes, by the County and/or by any special road and bridge district therein on April 1, 1929, bore to indebtedness of the same class of all the counties and/or special road and bridge districts of the State of Florida.” (Italics supplied).

The provision for the disposition of the funds realized from this second and third gas tax as provided for in the statute we considered in the case of Amos vs. Mathews was as follows:

‘ ‘ The second and third gas tax, apportioned to each of the several counties as above provided shall be applied to the payment of interest, and principal and/or sinMng funds of indebtedness for road and bridge construction, bears to the total amount of such indebtedness issued and now outstanding in all the counties heretofore contracted by each county respectively and by the special road and bridge districts in such county, and/or the construction and maintenance of roads and bridges in such County.” (Italics supplied).

In the Amos v. Mathews case we were also considering Chapter 14486, Laws of Florida, Act's 1929 as being in pari materia with Chapter 14575, same being the law providing for the Administration of certain County funds, by a Board of Administration.

Section 1 of the Board of Administration Act, Chapter 14486, supra, is as follows :■

“It is hereby declared by the Legislature of the State of Florida that all roads, highways and bridges which have heretofore been constructed or built, in whole or in part from- proceeds of bonds issued by the counties of the State of Florida, or from proceeds of bonds issued by Special Road and Bridge Districts under-the laws authorizing same, have been and are and will continue to be beneficial to the State of Florida at large, and have contributed substantially to the general'welfare, settlement and development of the entire State.” (Italics supplied.)

It will be noticed from the above quoted parts of the statutes before the court in the case of Amos v. Mathews, supra, that the purpose of the appropriation of the Second and third gas tax, if a State fax, was to pay interest and principal on bonds of the political subdivisions of the State, on the ground that the expenditure of the proceeds of the bonds had been beneficial to the State at large. Or, to put it in another way, that the moneys realized from county and' road and bridge district bonds used,in the construction of county and district roads, had contributed to the general welfare, settlement and upbuildmg of the State at large. There was no recognition, nor declaration that the roads, constructed from the proceeds of such' bonds were State roads or had been taken over and designated by the Legislature of the State of Florida, as State roads. There was nothing said in either of these, statutes, recognizing or declaring that any of the .proceeds of the bonds mentioned therein had been advanced or contributed in the building of State roads by the counties and special road and bridge districts. It simply declares, “that all roads, highways and bridges which have heretofore been constructed or built * * * from the proceeds of bonds issued by counties.” etc. (Italics supplied.)

In the instant case we find no provision in the law, that can be correctly interpreted as levying the Second Gas Tax, and appropriating its proceeds for the purpose of paying bonds or oiher similar obligation of the political subdivisions of the State. In Chapter 15659, Acts 1931, we find that the “Second Gas Tax” is to be paid as collected into the ‘ ‘ State Roads Distribution Fund. ’ ’

In Section seven it is recognized and declared by the Legislature of the State of Florida that all roads being constructed or built. or which had been constructed or built, or which might thereafter be 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 or built by county or special road and bridge districts or oiher special taxing districts thereof, were, are and will be constructed and built as State projects and undertakings, and that the cost of the construction and building thereof was, is and will be a legitimate and proper State expense incurred for general State purposes and should be wholly borne by the State.” (Italics supplied.)

In Section seven it is further recognized that certain counties of the State and/or special road and bridge or other special taxing districts of such counties have “advanced and contributed and paid to the State Road Department varying sums of money to be used and expended by said State Road DepaA’tment in the construction and building of State roads theretofore authorized and/or designated by the Legislature of the State of Florida as State projects.” (Italics ours.) It is further recognized in the provisions of section seven of the Act' that certain counties of the State of Florida and/or special road and bridge or other special taxing districts of said 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 were at the time of the passage of the Act State Roads, and theretofore 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, to and for the general'benefit of the State and should be returned and repaid to each county to the amount that such county and/or any special road and bridge district or other taxing districts thereof have advanced or expended in the construction of the same.” (Italics supplied.)

In Section 8 of the Act provision is made for the ascertainment of the amount of money furnished, advanced, contributed, paid out or expended by the several counties and/or special road and bridge districts or other taxing districts of such counties in the building and construction of roads designated as State Roads at the time of the passage of the Act. This to be done by the Chairman and Auditor of the State Road Department and certified by them to the State Comptroller to be by him audited and found correct before it shall constitute a basis for the allocation and apportionment of the moneys to be derived from the Second Gas Tax, and from which 'disbursement shall be made to or for the benefit of the respective counties out of the “State Roads Distribution Fund” account. It is provided that the Comptroller shall each month draw his order on the Treasurer of the State of Florida for the full net amount of moneys then with the State Treasury in the “State Roads Distribution Fund” specifying the counties to which said money shall be paid, the amount to be paid to each county respectively which sums are apportioned monthly out of the said “State Roads Distribution Fund” account. It is further provided that said order of the Comptroller shall be payable to the State Treasurer as exofficio Treasurer for the counties participating in the funds.

In Section eight it is further provided as follows:

“Whenever the amount furnished, advanced, paid out contributed or expended by any county and/or special road a/nd bridge or other special taxing districts of such county, directly, or through the State Eoad Department, in the construction or building of such State roads, within such county has been returned to such county, such county shall continue to participate' in the distribution of the three (3c) cents of the Second Gas Tax as provided for in Section 8 (b) of the Act, 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, the same being monthly appropriated to the use of the State Road Department for the construction within the County of State Roads which were at the time of the passage of the Act designated and recognized by the State Eoad Department as being part of the first, second and tMrd preferential system of State roads. These State roads to be built by the State Eoad Department as State projects and undertakings and that the funds shall be used by the State Road Department for such purpose and not otherwise, and the expense of constructing said roads is by the Act declared to be a legitimate, proper State expense to be incurred for a general State purpose.”

It is observed further that whenever any county no longer participates under the provisions of the Act “in the return to or for it of moneys contributed for the construction of State roads” as provided in the Act and when the State roads 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 shall have been built, then and thereafter all funds derived from the Second Gas Tax theretofore allotted and appropriated to and for said county shall be transferred to the State Road License Fund of the State of Florida to be expended according to law. This comparison of the provisions of Chapter 14575, and 14486, supra, construed in the ease of Amos v. Mathews, supra, with the provisions of Chapter 15659 which we are considering in this case reveals a striking dissimilarity between them.

Under the laws considered in the Amos v. Mathews case the gas taxes levied were by the terms of the Acts to be used in paying bonds of counties and road and bridge districts, and we held in that ease, if the gas tax was a State tax, it was invalid.

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 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 contributed, 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 participate in the distribution of the funds appropriated under this Act to the extent of their contribution to the construction of these State roads, although they never had bond issues.

From our study of Chapter 15659, Laws of Florida, (House Bill 65-X) Acts of 1931, 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 and 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, Advisory Opinion to Governor, 94 Fla. 964,. 114 So. 855; State vs. Green, 95 Fla. 117, 116 So. 66.

In the case of Cheney vs. Jones, supra, this Court was considering an act of the Legislature of 1873 authorizing a -State bond issue for certain purposes, among them being-that of using the proceeds of certain of the bonds -t'o pay debts incurred in the future. And we" held that the issuance of bonds the proceeds of which were to pay debts for,current expenses accruing in the .future was contrary to the provisions of sections 2 and 7 of Article XII of the constitution of 1868. These constitutional provisions being-substantially the same as sections 2 and 6 of Article IX of the present constitution. In the case of Cheney vs. Jones the court was considering strictly a State bond issue and the tax to pay the principal and interest thereon.

In the Advisory Opinion to the Governor, supra, we held that' the law authorizing the State Road Department to borrow money to carry out its annual budgets was invalid in that it violated Section 6 of Article IX of the Constitution of the State.. In this Advisory Opinion to the Governor-we were considering the authority of the State or its agencies to borrow money upon promises, to repay in the future- and held “that provisions for raising revenue sufficient to defray the expenses of the State for each fiscal year shall be-made by the Legislature by means other than borrowing money by State bonds or promises of the State to pay the amount borrowed in -the future.” (Italics supplied.)

In the casé of State vs. Green, supra, the statute attempted to acquire a road for a consideration not legally ascertained, and to obligate the State to make future payments in violation of the intendments of section 6 of Article IX of the Constitution. In Martin vs. Dade Muck Land Co., 95 Fla. 530, 116 So. 449, the statute then being considered purported to authorize appropriation of State funds and to obligate the State to pay the taxes on lands held by the trustees of the Internal Improvement Fund, which taxes were levied to pay district drainage bonds and also to authorize the appropriation of State funds to be used by the trustees of the Internal Improvement Fund to buy in land at tax sales, the appropriation in either ease to be used directly to pay district drainage bonds. Such provision of the statute violated the intent and purpose of Section 6, Article IX of the constitution.

We might say also in the Martin vs. 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 ease 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.

In Chapter 15659, Laws of 1931, (House Bill 65-X) 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 bind. 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.

The next proposition for our' consideration is whether or not under the constitution of Florida the Legislature can by its enactment provide for the'reimbursement' to> counties and/or special road and bridge or other special taxing districts for