Amos v. Mathews (99 Fla. 1, 1930)

Strum, J.

These causes bring before us for consideration the validity of two statutes passed at the extraordinary legislative session of 1929, namely, Chapter 14486, known as Senate Bill One, and Chapter 14575, known as Senate Bill Five, both approved by the Governor on June 21, 1929.

These two Acts are cognate parts of a single purpose— the liquidation and retirement of designated road and bridge bonds—in the accomplishment of which purpose the provisions of the two Acts are inextricably interrelated. They should therefore be construed in pari materia as one enactment. Curry v. Lehman, 55 Fla. 847, 47 So. R. 18; State v. McMillan, 55 Fla. 246, 45 So. R. 883.

Chapter 14575 (Senate Bill Five) levies two primary excise taxes, the first “a license tax of five dollars to the State” to be paid by every dealer in gasoline; and the second, “in addition thereto a tax, herein termed gas tax, of five cents per gallon for every gallon of gasoline * * * sold, * * * said tax of five cents per gallon being made up of four ‘separate’ taxes * * * ” as follows:

First gas tax: Two cents per gallon for use of the State Road Department. Neither this tax, nor the five dollar license tax upon dealers which is required to be paid “to the State,” is under attack in this litigation.

Second gas tax: One cent per gallon to be apportioned to the several counties “in the proportion collected in such counties respectively. ’ ’

Third gas tax: One cent per gallon to be apportioned to the several counties in proportion that the bonded indebtedness of such county for roads and bridges, including special tax road and bridge districts, bears to the bonded indebtedness of like character of all the counties of the State. In other words, this apportionment is according to the proportion of bonded road and bridge indebtedness of the several counties, in computing which the bonded indebtedness of special tax road and bridge districts in such counties is included. Expenditure of the proceeds of the second and third gas taxes is restricted by the statutes (with an exception not material here) to the payment of existing bonded indebtedness of counties and special tax road and bridge districts incurred for the building of public roads and bridges and for which bonds were issued and outstanding on April 1,' 1929. It is unnecessary to consider in this controversy whether or not such funds may be applied upon bonds authorized for the purpose of refunding the bonds just above mentioned.

The proceeds of the second and third gas taxes never reach the hands of local county or district officers. Such funds are collected under the supervision of the Comptroller and are disbursed by the State Treasurer directly to the paying agencies for the bonds, or to the holders thereof. In making such disbursements, however, the State Treasurer acts as “County Treasurer ex officio.”

Fourth gas tax: One cent per gallon to be apportioned équally amongst the several counties, two-thirds of which shall be “used for school purposes” and one-third for the construction of roads and bridges “in the county to which it is apportioned.” When collected by State officials, the fourth gas tax is paid over to local county officials to be disbursed by the latter as directed by the statute.

Amongst other things, Chapter 14486 (Senate Bill One) provides that: (a) “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 the proceeds of bonds issued by the counties of the State of Florida, or from the 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.” (b) It requires local bond trustees theretofore charged with the administration of sinking funds of county and district bonds issued for the construction of roads and bridges to turn over to the State Treasurer, as County Treasurer ex officio, all funds and securities under the control of said Trustees, together with their records relating thereto, to be held by the State Treasurer, as County Treasurer ex officio, for the benefit of the respective counties and districts, such funds to be kept in separate accounts. (c) That all bonds of the character under consideration shall remain the obligations of the counties and districts issuing them, (d) It authorizes the issuance of refunding bonds under certain circumstances, subject to the approval of the Board of Administration hereafter mentioned, (e) “For the purpose- of administering the provisions of the Act, and such money as is available by law,” the Act creates a Board of Administration consisting of the Governor, State Comptroller and State Treasurer. (f) The Treasurer is required to keep a separate account for each county and road district of all monies received from the local trustees as sinking funds, which accounts are sometimes termed sinking fund accounts; and also to keep separate accounts for each county of all monies received for and applicable to the credit of such county from any tax upon gasoline applicable to the bonds of such county, which includes gas taxes two and three levied by Chapter 14575 (Senate Bill Five), or received from any personal property tax on motor vehicles similarly applicable. (g) The Board of Administration is required annually on or before June 1st to estimate the amount of money available to the several counties and districts for the next fiscal year from each of the sources just mentioned, and to give notice to the several Boards of County Commissioners, and to district officials, of the amounts available to them respectively. In arriving at the amount so available to the several participating subdivisions, the Board shall first apply moneys in the several sinking fund accounts. If those funds are not sufficient to meet current requirements in any county the Board shall next apply any moneys available, or estimated to become available, to the credit of that county from gas taxes and personal property taxes on motor vehicles. In apportioning the amounts so available to the several counties and districts from sources other than the sinking fund accounts, the Board is required to apportion to each county or district such proportion of the available funds as the amount of the participating bonds of that particular subdivision bears to the aggregate amount of all participating bonds to which the proceeds of the taxes are applicable, that is, in proportion to the participating bonded indebtedness. It may be here remarked parenthetically that the last mentioned apportionment would apparently include funds arising from the second gas tax, and would therefore be in conflict with the apportionment of that particular tax provided for in Senate Bill Five, which is “in proportion collected in the several counties.” If the amount available from the sources mentioned is sufficient to meet all maturing principal and interest and sinking fund requirements during any fiscal year, no ad valorem tax shall be levied by the local officers for that purpose in that year. If the amount so available is not sufficient for the purposes stated, then the local county or district officials shall levy a sufficient ad valorem tax in the respective counties or districts to make up the deficit. The proceeds of any such ad valorem tax so levied shall be remitted monthly by the local county officials to the State Treasurer, as County Treasurer, ex officio, to be disbursed by him for the benefit of such county or district. See Secs. 14 and 16. (h) The Act expressly declares that its provisions are intended for the benefit of taxpayers and property owners of the State, and for the purpose of rendering assistance to the several agencies which have already performed a part of the functions resting on the State in the construction of roads, and that it is not the purpose or intention of the Act to obligate the State, directly, indirectly or contingently, for the payment of any of the bonds referred to.

Neither Chapter 14573, Acts of 1929, levying an additional or sixth cent tax per gallon upon gasoline for educational purposes, nor Chapter 14574, Acts of 1929, requiring the collection of an ad valorem tax on automobiles, the proceeds of which are to be administered by said Board of Administration and applied to the payment of bonds of the character hereinabove referred to, are involved in this litigation.

Two suits have been filed in which the constitutionality of Senate Bills One and Five are questioned. One is a taxpayers suit brought in the Circuit Court of Leon County by the appellee John E. Mathews seeking an injunction against the Comptroller and Treasurer to prevent them from collecting the taxes levied by Senate Bill Five and to prevent them from disbursing any moneys, or otherwise performing the functions prescribed for them by Senate Bill One. The other suit is in the nature of a quo warranto, the information having been filed in this Court in the name of the State on the relation of the Attorney General, against the Governor, the State Comptroller and against the State Treasurer, as such, and as ex-officio County Treasurer, questioning the authority of said respondents to exercise the offices, franchises and powers created by Senate Bill One.

The injunction suit is now before us on defendant’s appeal from the decree of the chancellor enjoining in certain respects the distribution of certain of the taxes to be collected pursuant to Senate Bill Five, but holding the levy of each of such taxes valid. The complainant below in that suit, appellee here, has filed cross assignments of error challenging the correctness of the chancellor’s ruling that the levy and collection of such taxes are valid. The quo warranto is before us upon a demurrer to the information. Substantially the same constitutional questions are raised in both suits. The two causes will therefore be considered together.

It is asserted against the statutes under consideration: (a) That they are void for vagueness, indefiniteness, ambiguity, and uncertainty, (b) That they violate Sec. 16 of Art. 3 of the Constitution in that they are misleading, the subject is not briefly expressed in the title, and that the Acts embrace more than one subject and matters properly connected therewith. (See Richmond v. Pace, 103 So. E. R. 647.) (e) That the alternative methods of apportionment provided in Senate Bill Five constitute an unlawful delegation of legislative power, (d) That the statutes violate See. 11 of Art. 16 of the Constitution relating to claims against the State, (e) That by the inclusion of the Governor, State Comptroller, and State Treasurer as members of the Board of Administration, these officers are required “to perform the functions of more than one office under the government of the State at the same time,” contrary to See. 15 of Art. 16 of the Constitution, (f) That Senate Bill One violates Sec. 1 of Art. 3 of the Constitution in that it delegates legislative power to the Board of Administration, and that it violates See. 27 of Art. 3 in that it creates new offices and provides for filling them in a manner contrary to the Constitution.

The immediately foregoing propositions designated as (a) to (f), inclusive, have been considered by Mr. Chief Justice Terrell in a separate opinion prepared by him and filed herein. The views expressed by Mr. Chief Justice Terrell upon the six propositions just stated are agreed to.

The validity of the statutes as against other asserted constitutional objections will now be considered. The two statutes, taken together, provide for: (1) the levy of certain excise taxes; (2) an apportionment thereof amongst the several counties; (3) the application of the proceeds of the taxes to designated purposes; and (4) a plan of administration of such funds through a Board'of Administration composed of State officers.

It should be constantly borne in mind that the taxes here involved are excise, not ad valorem, taxes.

First, as to the validity of the levy:

It will be helpful to an understanding of what is to follow to reiterate at the outset a few principles of constitutional construction universally sanctioned: (1) It is the function of the courts to interpret the law, not to legislate. (2) Courts are not concerned with the mere wisdom or policy of legislation so long as such legislation squares with the Constitution. (3) The Courts have no power to strike down an Act of the Legislature unless the provisions of the Act, or some of them, clearly violate some express or necessarily implied inhibition of the Constitution. (4) Every reasonable doubt must be indulged in favor of the Act. If it can be rationally interpreted to harmonize with the Constitution it is the duty of the courts to adopt that construction and sustain the Act. (5) To the extent, however, that such an Act violates express or clearly implied mandates of the Constitution, the Act must fall—not merely because the court so decrees, but because of the dominant force of the Constitution, an authority superior to both the legislature and judiciary. Such an Act never becomes a law. See Jackson Lbr. Co. v. Walton County, 116 So. R. 771; Lainhart v. Catts, 73 Fla. 735, 75 So. R. 47; State v. Bryan, 50 Fla. 293, 39 So. R. 939.

In approaching the question of the power of the legislature to levy taxes, it should further be borne in mind that our State Constitution is not a grant of power to the legislature, but is a limitation voluntarily imposed by the people themselves upon their inherent law making power, exercised under our Constitution through the legislature, which power would otherwise be absolute save as it transcended the powers granted by the State to the Federal Government. State v. Stone, 71 Fla. 517, 71 So. R. 634; Cheney v. Jones, 14 Fla. 587. The State therefore possesses, as an attribute of sovereignty, the inherent power to impose all taxes not expressly or by clear implication inhibited by State or Federal Constitutions. Amos v. Gunn, 84 Fla. 285, 94 So. R. 615; Cooley, Taxation (4th ed.) p. 149. Where the Constitution expressly prescribes the manner of doing a thing, it impliedly forbids its being done in a substantially different manner, even though the Constitution does not in express terms prohibit the doing of the thing in such other manner. Weinberger v. Board of Public Instruction, 112 So. R. 256.

‘ ‘ The true spirit of constitutional interpretation * * * is to give full liberal construction to the language, aiming ever to show fidelity to its spirit and purpose. * * * Constitutional provisions, whether operating by way of grant or limitation, are to be enforced according to tbeir ‘letter and spirit,’ and can not be evaded by any legislation which, though not in terms trespassing upon the letter, yet in substance and effect destroy the grant or limitation. ’ ’ Fairbank v. U. S., 181 U. S. 283, 45 L. Ed. 862.

This court has held that “the courts should not declare a statute to be void or inoperative on the ground that it is opposed to a spirit that is ‘supposed’ to pervade the Constitution.” State v. Johns, 109 So. R. 228; Cooley’s Const. Lim. (7th ed.) p. 239. But it does not necessarily follow that in every ease the courts must be able to point out some express inhibition which has been disregarded, or some express command which has been disobeyed, before the courts can set aside a statute as invalid. “The intent of organic or statutory provisions is the essence of the law and such intent may be shown by the ‘ implications and intendments’ as well as by words of express provisions; and implied provisions of organic or statutory law are as effective as the express provisions, when such implied provisions are judicially declared to exist.” Getzen v. Sumter County, 85 Fla. 45, 103 So. R. 104. And in re: Advisory Opinion, 94 Fla. 967, 114 So. R. 850, this Court said that “the spirit as well as the letter” of constitutional inhibitions “should be preserved and given full force and effect.” Constitutional restraints, therefore, may be found either in the express language employed or in the purpose clearly, though impliedly, evidenced thereby. The object of constitutional construction is to ascertain and effectuate the intention and purpose of the people in adopting it. That intention and purpose is the “spirit” of the Constitution—as obligatory as its written word. That spirit, however, can not consist of mere sophistry nor of fanciful or conjectural theory. It must be found in those implications and intendments which clearly flow from the express mandates of the Constitution when considered in the light of circumstances and historical events leading up to its adoption, from all of which the purpose of the people in adopting it is to be gleaned. State v. Butler, 70 Fla. 102, 69 So. R. 771; Mugge v. Warnell, 58 Fla. 318, 50 So. R. 645; Brown v. Lakeland, 61 Fla. 508, 54 So. R. 716; State v. Greer, 88 Fla. 249, 102 So. R. 739, 37 A. L. R. 98; Getzen v. Sumter County, 89 Fla. 45, 103 So. R. 104; Rathbone v. Wirth, 45 N. E. R. 15, 34 L. R. A. 408; Holland v. State, 15 Fla. 455, 523; People v. Hurlburt, 24 Mich. 44, 9 Am. R. 103; Cooley Const. Lim. (7th ed.) p. 98, 242.

The purpose of the people in adopting the Constitution should be deduced from the Constitution as an entirety. Therefore, in construing and applying' provisions of the Constitution, such provisions should be considered, not separately, but in co-ordination with all other provisions. Mugge v. Warnell, 58 Fla. 318, 50 So. R. 645; Ex parte Pricha, 70 Fla. 265, 70 So. R. 406; Brown v. Lakeland, 61 Fla. 508, 54 So. R. 716.

In view of the principle that when a tax is levied solely for a purpose prohibited by the Constitution the levy is illegal, it will be well to now classify the second and third gas taxes to ascertain whether they are levied as State taxes or as county taxes, since different rules will apply, depending on whether they are the one or the other. The fourth gas tax will be considered separately.

It is contended both for and against the Acts that the second and third gas taxes are levied as State taxes. In defense of the Acts it is contended that the construction of roads and bridges is a State function and purpose; that the State could have constructed the roads referred to in the Acts and could have levied a State excise tax to pay for them; therefore, the counties and districts having performed a function resting upon the State in the building of roads, and the State having recognized such roads as beneficial to the State, it follows that the State may now levy a State excise tax and apply it in payment of county and district bonds, the proceeds of which were used to construct the roads, so long as the State assumes no obligation to pay the bonds, which, it is asserted, is avoided by the express provision in the Act that the State assumes no obligation but that the proceeds of the tax shall be applied to the payment of such bonds as a gratuity, and further by the express declaration in Senate Bill One that such appropriation of the proceeds of the tax is for the specific benefit of taxpayers and property owners of the State, and not of the bonds. From this argument the conclusion is reached that the levy of said second and third gas taxes, as State taxes, is valid.

Those assailing the Act contend that the purpose of the tax is not to construct roads, for the roads in question have already been constructed and completed, but its purpose is to pay off county and district debts ; that the payment of such obligations violates the clear intendment of Sec. 6 of Art. 9 of the Constitution; and that the tax being a State tax, and the payment of local county and district debts not being an “expense of the State” within the meaning of the Constitution, Sec. '2 of Art. 9, to which the State is confined in levying State taxes, the levy is void.

It is our duty to resolve any doubt as to the character of the tax in favor of such a construction as will harmonize the levy with the Constitution, or to avoid grave doubts on that score, if it can be rationally done. Hiers v. Mitchell, 116 So. R. 81.

Sec. 2 of Art. 9 of the Constitution is as follows:

“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. ’ ’

In Cheney v. Jones, 14 Fla. 587, it is stated in the fifth headnote: “ * * * the legislative power over the subject of taxation is also limited, because the several purposes for which taxes may be levied are in like manner prescribed; the several purposes for which the Legislature may cause taxes to be levied being expressly named in the Constitution, and these purposes being sufficient for defraying the expenses of conducting the affairs of the government of the State.” Discussing this proposition in the body of the opinion, and with reference to the purpose and effect of Sec, 2 of Art. 12 of the Constitution of 1868 (now Sec. 2, Art. 9, Constitution of 1885), the Court said: “Measuring the power of the Legislature by the terms of the Constitution in respect to the levying of taxes, we find that it is permitted ‘raise revenue sufficient to defray the expenses of the State’ (which includes such expenditures as may be authorized by the Legislature and which are not prohibited by the Constitution), and ‘to pay the principal and interest of the existing indebtedness of the State.’ This provision is so broad that we can not perceive it to be necessary to the due exercise of all the powers of government to travel outside of it for any legitimate object. It erects a boundary also, which we think was intended to protect the people from errors which sometimes have been committed by Legislatures. It prescribes what may be done, how far the Legislature may go in levying taxes; and upon the principles alluded to, it is a limitation not wanting in directness to amount to a prohibition.”

Except as otherwise contemplated by the Constitution, that construction would necessarily preclude the direct levy by the Legislature of a tax for an exclusively county purpose, the State being confined, so far as Sec. 2 of Art. 9 is concerned, to the levy of taxes for State purposes or for purposes in which the State has a sovereign interest.

The Constitution of 1885 is a revision of the Constitution of 1868. Sec. 2 of Art. 12 of the Constitution of 1868 was retained verbatim as Sec. 2 of Art. 9 of the Constitution of 1885. In re-adopting* that Section verbatim in the Constitution of 1885, the people did so with knowledge of the construction placed on it in Cheney v. Jones. It is therefore presumed that the people were content with that construction and adopted it along with the re-adoption of the Section, otherwise the language of the Section would have been altered- in the Constitution of 1885.

Sec. 6 of Art. 9 of the Constitution provides:

“The Legislature shall have power to provide for issuing State bonds only 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. ’ ’

In re: Advisory Opinion, 114 So. R. 850, this Court said with reference to the anti-bonding provision just quoted: “The spirit as well as the letter of this Section should be preserved and given full force and effect. Its purpose should not be defeated or frittered away by any narrow or technical construction. ’ ’ See also Hathaway v. Monroe, 119 So. R. 149; State v. Green, 116 So. R. 66.

If the second and third gas taxes are State taxes, the levy thereof is clearly repugnant to Sections 2 and 6 of Art. 9 of the Constitution, and must therefore fall. The following reasons lead us to the conclusion just stated :

Generally speaking, public roads and bridges may be constructed either as a State purpose or a county purpose. They usually benefit both the State at large and the county. in which they are located. This Court has recognized this dual purpose in road building. Lewis v. Leon County, 107 So. R. 146; Jackson Lbr. Co. v. Walton County, 116 So. R. 771. Undoubtedly, the State could have taken upon itself the original construction of the public roads here under consideration and could have levied State taxes to pay for them as construction progressed. But the State did not do so. Undoubtedly, also, the counties and districts had legislative authority to construct them, as for county and district purposes, and they voluntarily chose to so construct them because they deemed them essential to local progress and prosperity. The counties and districts could have refrained, but they did not; they borrowed the money by issuing bonds and constructed the roads. The Legislature merely authorized, it did not compel. So each of the counties and districts, of its own choice, took the necessary steps to issue the bonds upon the ground that the construction of the roads in question constituted a county (or district) purpose, which it was, although the same construction projects might have been accomplished by the State as a State purpose. Construction of these roads, however, as local projects has been completed and that transaction is at an end. There remains only the payment of the local obligations thus incurred. The county and district bonds to pay for those roads were issued and validated as county and district bonds. Hence their legal status became fixed as purely county and district obligations, issued for a local purpose. They were not, and could not be, State obligations.

That the construction of these roads and bridges resulted in benefit to the State may be conceded. That fact alone, however, does not preclude their construction as a local or county purpose, nor render the expense thereof an improper subject of local taxation. In a sense, any public improvement which benefits a county or a city also benefits the State to some extent. But if the State can justify itself in assuming to pay these bonds by State taxation merely because it acknowledges that the constructionu of the roads were a benefit to the State, then by the same process of reasoning the State counld justify itself in paying off, by State taxation, every bond issue incurred by any municipality in the building of public streets, thus centralizing the power of taxation to pay the cost of' local improvements in a manner not contemplated by our Constitution. The tendency in this direction is already indicated by the introduction at the same session of the Legislature at Which Senate Bills One and Five were passed, of several Acts undertaking to create “road and bridge districts” of certain towns so as to qualify the bonds of such towns, issued for street paving purposes, to participate in the proceeds of the gas taxes now under consideration.

It is clear that a State purpose, or State expense, can not rest upon any such broad and general conception of State benefits as that just referred to. Local taxes must be levied to pay for local improvements already constructed, even though there is an element of incidental general benefit in them.

In Martin v. Dade Muck Land Co., 116 So. R. 449, this Court said: “ In view of the limitations contained in See. 6 of Art. 9 of the State Constitution * * *, the State can not legally (with State funds) in any form or manner, either directly, indirectly, or contingently 'pay’ or be obligated to pay the whole or any part of the principal or interest of the bonds authorized to be issued by the Everglades Drainage District.” It was plainly stated that the State not only could not “obligate” itself to pay such bonds, but that it could not “pay” them, either directly, indirectly or contingently. The same rule, and for the same reason, applies to bonds issued by counties and districts for road building when the project was undertaken and completed as a local purpose, and the bonds issued and validated as local obligations.

It would be more than mild inconsistency to hold that while the State was without authority to issue those bonds in the first instance, it could nevertheless authorize its subordinate subdivisions to issue them and the State subsequently levy a State tax to pay the obligations which the State in the first place could not issue or assume. That such payment would be made as a “ gratuity, ’ ’ and not as an obligation, does not aid the situation, when by the intendments of Sec. 6 of Art. 9 the State is inhibited from “paying” bonds of this character. The conclusion is inescapable that such a plan would constitute an indirect method of accomplishing that which the State can not do directly, and would afford a convenient means and a precedent for nullifying the provisions of Sec. 6 of Art. 9 of the Constitution. It has more than once been held by this Court, and we now re-affirm, that the Constitution 'contemplates that the expenses of the State, including its activities in building or paying .for roads, shall be kept within its “revenue for each fiscal year,” that is upon virtually a cash basis, and that such expense can not, by any plan of circumlocution, be anticipated by the issuance of bonds, except in the cases expressly recognized in the Constitution. In re: Advisory Opinion, 114 So. R. 850; State v. Green, 116 So. R. 66; in connection with which should be read Hathaway v. Monroe, 119 So. R. 149. As recently as the year 1920 a proposed constitutional amendment authorizing the State to bond itself for the construction of roads was defeated at the polls. Acts 1919, p. 341.

By Sec. 5 of Art. 9 of the Constitution, the several counties may be authorized to assess and impose taxes for county purposes, and for no other purposes. Therefore, bonds issued by the county must be issued for county purposes,’ and for county purposes only, otherwise no tax could lawfully be levied to pay them. It follows that when these bonds were issued, they were issued and validated as for County (or district) purposes only. By what logic then, in view of the inhibition of Secs. 2 and 6 of Art. 9 of the Constitution, may a State tax be levied to pay them?. Senate Bill One expressly declares that these bonds to the payment of which these taxes are to be applied “shall remain obligations of said counties or special road and bridge districts, respectively, and each of said counties or districts shall be legally liable for the full amount of its bonds so issued by it and outstanding.” From what has been said, it must be clear that while the original construction of roads and bridges may constitute a dual purpose, and one which can be accomplished by either State or appropriate local taxation, it does not follow that after such roads have been constructed and completed as local projects and bonds have been issued as local bonds to pay the cost thereof, that the payment of such bonds can similarly constitute a dual purpose justifying the imposition of State taxes to pay such local obligations, for the reason that Secs. 2 and 6 of Art. 9 of the Constitution intervene to prohibit the payment of such obligations with State funds. To hold otherwise would clearly transcend the spirit and purposes of See. 6 of Art. 9. Since the payment of such bonds can not lawfully constitute “expenses of the State,” to the raising of revenue for which purpose the Legislature is limited in the imposition of State taxes by Sec. 2 of Art. 9, the levy of these taxes, if State taxes, would be repugnant also to the latter provision of the Constitution.

In support of these taxes, as State taxes, City of Lowell v. Oliver, 8 Allen (Mass.) 247 is cited. In that case the court sustained the levy of a State tax to reimburse cities for bounties previously paid to State soldiers. The Court says: “If the object' of the appropriation is a legitimate one, * * * we can see no valid distinction in principle between a right to raise money for a specific object yet to be accomplished and a right to raise it to defray the expenses of the same object after it has been attained.” The important postulate of that assertion is “ If the appropriation is a legitimate one. ’ ’ As explained in the subsequent case of Agawam v. Hampdon, 130 Mass. 528, 534, the raising and support of soldiers is a State function and remains such, notwithstanding that a municipality has advanced the expense. So the State may later levy a State tax to reimburse such municipalities. We can not apply that principle to the levy in this State of a State tax to pay the bonded obligations of counties and districts incurred for the building of roads as local projects, because See. 6 of Art. 9 of the Constitution prohibits the payment by the State of such obligations, consequently See. 2 of Art. 9 also intervenes to prevent the levy of State taxes to pay those local obligations, since they are not ‘ ‘ expenses of the State” and consequently the appropriation of State taxes for such purpose would not be a “legitimate object.” In the case of the soldiers’ bounties, although a municipality first advanced the money, the purpose is not thereby transmuted into a form of obligation which the State is prohibited to issue, assume or pay as is the case under our Constitution the purpose here being not to construct roads, but to pay off an existing county (or district) bonded debt. Here the counties and districts, by their voluntary acts, have fixed the character of these obligations, and placed them in a field of taxation that the State can not enter by the levy of State taxes.

In Thomas v. Leland, 24 Wend. (N. Y.) 65, strongly relied upon by appellants to sustain these taxes as State taxes, “the general purpose of raising the money by tax was * * * to ‘contract’ a canal, a public highway, which the Legislature believed would be to the benefit of the City of Utica, as such, and independently of the bond the case is the ordinary one of local taxation to ‘make and improve’ a highway.” No constitutional provision inhibited the payment of the debt there in question. Our Constitution inhibits the payment with State taxes of the debts here in question. See also Cooley, Taxation (4th ed.) See. 1817, p. 3568.

For the reasons stated, the second and third gas taxes can not be sustained as State taxes.

Can the second and third gas taxes be rationally and consistently regarded as county taxes ? It is our judgment that they can, because the revenue to be derived therefrom is to be applied solely to a local purpose. To raise revenue for local purposes is the sole aim of the Legislature in imposing these taxes.

Whether a tax directly imposed by the Legislature, but the proceeds of which are to be applied to local purposes, is a State tax or a county tax seems to be the subject of conflicting opinions.

In Pennsylvania it is held that the character of a tax, as a State or local tax is determined by the Act which authorizes its imposition and not by the use to be made of the revenues to be derived therefrom. Elliott v. Philadelphia, 229 Pa. 215, 225.

In New Jersey it' is held that all taxes directly levied by the State, whether for State, county or municipal purposes, are State taxes. United N. J. R. R. Co. v. State Board of Assessors, 67 Atl. R. 438.

. A legislative declaration as to the character of the tax is of great weight, although not necessarily controlling. See 251 U. S. 95; 250 U. S. 459. In the absence of such an express declaration, however—and we have none in these Acts—the purpose for which the revenue is to be raised, and to which it is to be applied, affords a controlling guide to the nature of the tax in the absence of superior contravening indicia.

The principle is thus expressed by Judge Cooley in Youngblood v. Sexton, 32 Mich. 406, 20 Am. R. 654:

“In one sense, undoubtedly, any tax levied by a general law is a State tax; but if the moneys are to be put to local uses, the only substantial difference between that and one levied by local action consists in this: that in one case the State levies the tax, and in the other it authorizes the levy. All taxation must be authorized by the State, and we know of no reason why all taxation for the ordinary purposes of government may not be levied under general laws when no express provision of the Constitution forbids it. Such legislation is no novelty in this State or elsewhere. Highway and school taxes are very commonly levied in that way; the local authorities, as to some of them, having no option, but being put under legal compulsion to assess and collect them. The school mill tax may be taken as an illustration. Collected under a general law, it was nevertheless put to the uses of the community which paid it; and it was in no proper sense anything more than a local tax. Neither is the tax now in question. ’ ’

We therefore conclude, in the absence of superior contra-dieting circumstances in the Act, that the second and third gas taxes are levied as county taxes, since it is to be presumed that the legislature intended a valid levy.

Since these taxes are county taxes, the purpose of the levy is lawful.

To hold th$t if these taxes are State taxes their levy would be illegal, yet if they are county taxes their levy and the application of the proceeds to a purpose for which the State could not levy a State tax, is valid, involves no inconsistency of thought or principle. If the legislature has the power to levy the tax, it has the power to prescribe the use to be made of the revenue, so long as the use so prescribed is consistent with the Constitution. The Constitution forbids the use of a State tax to pay county bonds, but it sanctions the use of a county tax for that purpose. If levied as a county tax, however, the revenue becomes county funds, not a State fund. These revenues never enter the treasury of the State, though the custody thereof may be committed to the State Treasurer, as County Treasurer ex-officio, by virtue of an express constitutional provision which will be noticed later. The legislature, as we shall also see hereafter, has the power to directly levy an excise tax for county purposes. It may therefore apply the revenue to the payment of county obligations, provided it is properly apportioned amongst the counties, as the Constitution contemplates the levy of county taxes for county purposes, but not the levy of State taxes for county purposes.

It may be said that it is of no importance to the taxpayer whether the tax be a State tax or a county tax— that the levy thereof exacts from him the same toll in either event. It may be conceded that the taxpayer contributes the same sum to the public coffers in either instance. But whether it is a State tax or a county tax is a question of prime importance in the apportionment of the tax amongst the several counties, and consequently the answer to that question exerts a vital influence upon the re-distribution of the benefits of the tax amongst the people who pay it.

With respect to the contention that if these taxes are levied as county taxes the direct and compulsory levy thereof by the State impairs the principle of “local self government,” let us now consider and ascertain the intent and purpose of the people in that respect as evidenced by the adoption of the Constitution.

After dividing the government of the State into three departments, legislative,- executive and judicial, the Constitution in Articles 3 and 4 thereof, creates certain offices, namely, Senators and members of the House of Representatives, a Governor and his Cabinet, to the incumbents of which offices, together with certain subordinate officers created by law, are confided the governmental affairs of the legislative and executive departments of the State. These officers, together with the Judicial Department provided by Art. 5, form the State government. The authority of these officers extends territorially throughout the State, except as to certain of the judicial officers. See Advisory Opinion, 13 Fla. 687.

Having thus constituted the State government, the Constitution in Art. 8 directs its attention to local county and municipal affairs. In Sec. 1 of Art. 8 the Constitution ordains that “the State shall be divided into political divisions to be called counties,” and Sec. 2 of that Article provides that “the several counties as they now exist are hereby recognized as the legal political divisions of the State. ’ ’ Sec. 24 of Art. 3 requires the Legislature to establish a uniform system of county government. Sec. 3 of Art. 8 contemplates that counties, as such, may incur indebtedness when duly authorized. Sec. 4 prohibits the legislature from removing the county seat' of any county. Sec. 5 recognizes the county commissioners as the general administrative board of the county. Sec. 6 provides for the election of county officers by the electors in each \eounty, the obvious purpose of which was to provide generally for local officers for the administration of local •county functions, whose “powers, duties and compensation shall be prescribed by law.” That is, while the existence of these officers is recognized by the Constitution as a part of our plan of government, t'heir powers are wholly statutory. See Parker v. Evening News Co., 54 Fla. 544, 45 So. R. 309; Bowden v. Ricker, 70 Fla. 154, 69 So. R. 694; Stephens v. Futch, 73 Fla. 708, 74 So. R. 805. The territorial authority of such officers is limited to the county. Sec. 15 of Art. 12 provides that all county officers, except' county school officers, shall be paid from the general funds of these respective counties. Sec. 10 of Art. 18 provides for the first election of county officers. Sec. 3 of Art. 13 requires each county to provide for the poor of the county. Sec. 3 of Art 7 provides that each county shall have representatives in the legislature. Sec. 4 of Art. 16 requires that each county officer shall keep his office at the county seat, and keep his records there.

It is fundamentally true that all local powers must have their origin in a grant by the State which is the fountain and source of authority. Nevertheless, those provisions of the Constitution just above quoted, and other cognate provisions, clearly imply,—and it is therefore the spirit of the Constitution,—that the performance of State functions shall be confided to State officers; the performance of county functions of purely local concern shall be confided to county officers. Save as is otherwise clearly contemplated by. the Constitution, there can be no compromise with that principle, the origin of which is more ancient than the Constitution itself. In England, a similar subdivision of the realm for the performance of functions exclusively local in character existed from the earliest recorded times, the English counties possessing recognized powers in matters of purely local concern. See Taylor’s Origin and History of the English Constitution, Vol I, p. 41, 42; Vol. II, p. 190. Even when our Constitution of 1885 was adopted, existing facilities for transportation and communication, coupled with the geographic location of many of our counties, were such that a journey to the State capital by the resident legislative representatives of such counties often involved a tedious and devious journey of several -weeks. Such isolation from the seat of the State government rendered indispensable the continued performance of purely local functions by local officers whose delegated powers were prescribed by Constitution and statute. So settled and of such ancient origin was that plan for the administration of affairs of purely local concern that it did not become the subject of an express provision in the Constitution, nor was such necessary, when it so plainly appears from the implications of the express language that a continuation and preservation of the principle ■ as an incident to our form of government was so clearly assumed. See 24 of our Declaration of Rights provides: “This ennunciation of rights shall not be cppst'rued to impair or deny others retained by the people.” That certain rights are retained 'by the people is therefore clearly implied. ,

This declaration and others, says Mr. Justice Brown, speaking for this Court in State v. City of Stuart, 120 So. R. 337, ‘ even limit to some extent the exercise of- the tremendous, but inherent and well established, powers, of taxation and eminent domain.”

Under Sections 5 and 6 of Article 8, the legislature possesses plenary power over the “powers, duties and compensation” of county officers. Thus it was held in State v. Fearnside, 87 Fla. 349, 100 So. R. 256, that “there is nothing in our Constitution that prohibits the legislature from enacting a statute taking away from the boards of county commissioners, not only a part, but the whole of their powers of supervision and control of public roads and bridges, and lodging such powers elsewhere, since the control of all general public highways is vested in the State absolutely without any constitutional limitation or restriction.” See also Jackson Lbr. Co. v. Walton County, 116 So. R. 771, 777; State v. Johnson, 71 Fla. 363, 72 So. R. 477; State v. Walton County, 112 So. R. 630; Martin v. Dade Muck Land Co., 116 So. R. 449, 464. And it is appropriate here to refer to the fact that county tax collectors and other local officers are utilized by the State in the local collection of State taxes, which in a sense might be said to be the performance by these officers of a purely ministerial and non-discretionary State function, but that custom has received the sanction of long usage, and the performance by the local officers of these duties in no wise interferes with the discretion vested in these officers in the performance of their local duties. Conversely, it has long been the practice for State officers to collect automobile and express company license taxes and to remit to the several counties a portion .thereof as county taxes as provided by statute. These functions performed by the State officers are additional duties and do not interfere with their constitutional duties as State officers. But the existence of local county officers as a part of our form of government, and for the performance of purely local functions, is clearly recognized by the Constitution, although the legislature possesses powers of the broadest possible nature consistent with the constitutional existence of those officers, in determining the extent of their local powers and duties. Therefore, while the legislature may shape local institutions and regulate the frame work of local government with reference to local powers, it can not abrogate these constitutionally recognized institutions and take to itself the complete and direct exercise of local functions in matters of purely local concern.

It is contended in this case that a county is a mere arm or agency of the State—that it is merely “the State acting locally.” The foregoing resume of our constitutional system negatives this theory so far as the administration of purely local affairs is concerned. It is true that a county is an agency of the State, having no inherent power, but deriving its powers wholly from the sovereign State. It is also true, to paraphrase the language of one of the briefs herein, that the principle of local self-government does not constitute each county “an independent sovereignty, managed by a board having legal rights.” Nevertheless, their existence as local entities for local purposes as well as their existence as legal political divisions of the State is recognized by the Constitution. The same power which created the legislature, namely, the sovereign people, recognized the counties. While a county in the performance of certain functions is an agency or arm of the State, it is also something more than that. If a county were no more than a mere agent of the State,—the State acting locally,-—bonds issued by a county would in effect constitute State bonds, and therefore by virtue of Sec. 6 of Art. 9 of the Constitution would be void ab initio. While the county is an agency of the State, it is also, under our Constitution, to some extent at least, an autonomous, self-governing political entity with respect to exclusively local affairs, in the performance of which functions it is distinguished from its creator, the State, and for its acts and obligations when acting in purely local matters the State-is not responsible. This, as we have seen; must be conceded in order to sustain .the validity of county bonds. See Jackson Lbr. Co. v. Walton County, 116 So. R. 771; O’Connor v. City of Fon du Lac, 85 N. W. R. 327; Rathbone v. Wirth, 45 N. E. R. 115; People v. Hurlburt, 24 Mich. 44, 89, 93, et seq.; 9 Am. R. 103, the principles in which cases we approve generally, though in- view of the-plenary power of the legislature over cities, w.e.declined in State v. Johns, 109 So. R. 228, to apply th.ese principles to defeat a legislative appointment..of certain city officers. Cooley, Taxation (4th Ed.) Sec. 415; Cooley, Const. Lim. (7th Ed.) p. 243, 265, 334; 1 McQuillen Munc.Corp. Sec. 164, et seq.

■Article 9 of the Constitution relates to taxation and finance. Sec. 2 thereof ordains that ‘ ‘ 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.” Having thus prescribed the means for defraying expenses of the State, attention is given .to the needs of local governmental subdivisions.

Of course a county has Ho inherent power to impose taxes. The power, if it' exists, must be derived from the State. Sec. 5 of Art. 9 provides that “the legislature shall ‘authorize’ the several counties and incorporated cities and towns in the State to assess and impose taxes for county and municipal purposes,, and for no other purposes * * *. The • -legislature may also provide' for levying a special capitation tax ‘and a tax on licenses.’ But the capitation tax shall not exceed one dollar a year and shall be applied .exclusively to common school purposes.” Thus the means is provided for raising revenue for local county and municipal purposes in the performance of local functions.

It is clear, therefore, that our Constitution contemplates that an exclusively State purpose must be accomplished by State taxation; an exclusively county purpose, in which the State has no sovereign interest, by county taxation. Chicago, etc., R. R. Co. v. State, 108 N. W. R. 557; Cooley, Taxation, Sec. 314. See Advisory Opinion, 13 Fla. 687; State v. Burns, 38 Fla. 367, 21 So. R. 290. In State v. Dickson, 44 Fla. 623, 33 So. R. 514, this Court held that the legislature could not compel the levy of an ad valorem county tax for an exclusively State purpose. In Jordan v. Duval County, 68 Fla. 48, 66 So. R. 298, the issue of county bonds and the levy of a county ad valorem tax to erect an armory was approved by this Court because the legislative act “authorized but did not command” thé issuance of the bonds, and iii the act the legislature reasonably recognized in the circumstances of the erection of that armory a dual State and county purpose. See also County Comrs. v. Board of Pilot Comr's., 52 Fla. 197, 42 So. R. 697; 120 A. S. R. 196; Duval County v. Jacksonville, 36 Fla. 196, 18 So. R. 339; Cooley, Taxation, (2nd Ed.) See. 314. In A. C. L. v. Lakeland, on petition for re-hearing, 115 So. R. 672, 686, it was said: “A particular district or locality can not lawfully be taxed for the cost of an undertaking which results only in a general benefit; ’ ’ But a single project in some instances may constitute a dual purpose and therefore may justify a levy of taxes appropriate to the purpose; See Skinner v. Henderson, 26 Fla. 121, 7 So. R. 464; Lewis v. Leon County, 91 Fla. 118, 107 So. R. 146; Jackson Lbr. Co. v. Walton County, 95 Fla. 632, 116 So. R. 771; Rushton v. State, 75 Fla. 422; 78 So. R. 345; Stuart v. DeLand, etc., 71 Fla. 158, 71 So. R. 32. And a local tax may be imposed by competent authority where the project is essentially a local one, though there may be some incidental and indirect general benefit. See Cook v. Port of Portland, 27 Pac. R. 263; 13 L. R. A. 533; State v. Clausen, 163 Pac. R. 744; Steiner v. Sullivan, 23 N. W. R. 286; Cooley, Taxation (4th Ed.), Sec. 315; see also Hunter v. Owen, 80 Fla. 812, 86 So. R. 839. And when a project is to a large extent of general benefit, but also especially and peculiarly benefits a local community, the local community may be taxed for a just proportion of the cost appropriate to such special or peculiar benefits. Cooley, Taxation (4th Ed.), See. 315; State v. Williams, 35 Atl. R. 24. It has also been held by high authority that in such a case, and when the circumstances as to the coordinate local benefit justifies it, the local community may be taxed for the whole cost. Mobile v. Kimball, 102 U. S. 691, 26 L. Ed. 238. But seé Hasbrouck v. Milwaukee, 13 Wis. 37, a well reasoned opinion to the contrary. See also Cooley, Taxation (4th Ed.), Sec. 428.

If, however, the Legislature undertook to impose a tax upon the people of one county alone to pay the salary of the State officers created by Articles 3, 4 and 5 of the Constitution, or if the State undertook to tax a single county alone for the erection of a State building such as a State Capitol or State Prison, or State Insane Asylum, there would be no hesitation in saying there was no such power in the Legislature, because such a tax would at least violate the constitutional guaranty of equal protection of the law. See Ryerson v. Utley, 16 Mich. 269. Likewise, if a tax were imposed upon the people of the whole State to pay the salary of local officers of a given county, or to erect a building to serve a public purpose of a purely local nature, and wholly unrelated to any governmental purpose or function of the State, as for instance a county poor farm or a stockade for the confinement of county prisoners, or a county hospital authorized by statute as a county purpose, no one would seriously deny that the collection of' such a tax would flout the clear intendment, if not the letter, of our Constitution. Steiner v. Sullivan, 77 N. W. R. 286; Cooley, Taxation (4th Ed.) See. 318.

There is no difference in principle between a tax of the nature just mentioned and a tax imposed as a State tax throughout the entire State to pay the bonded obligations of the several counties incurred in the building of roads and bridges, when the building of such roads and bridges has been previously undertaken and consummated solely as a county (or district) project, and the status of such bonded obligations previously fixed as exclusively county (or district) obligations. This is true even though the building of public roads may constitute a dual State and county function in appropriate instances, and even though the roads and bridges so constructed as county or district projects may also be beneficial to the State.

On the question of the so-called “flexibility” of our Constitution to meet the changes wrought by modern conditions, it is pertinent to note here the views of the Supreme Court of the United States expressed in Euclid v. Ambler Invest. Co., 272 U. S. 365, 71 L. Ed. 303. It was there said with reference to the Federal Constitution: “While the meaning of constiutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. * * * Regulations, the wisdom, necessity and validity of which as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.” To that wholesome doctrine we subscribe. But neither the present necessity for a unified system of “through” roads to accommodate the demands of modern' travel by automobile, nor a desire to render State aid to local subdivisions in the payment of bonded obligations incurred by them in constructing local roads already completed as local projects but which the State is willing to now accept as beneficial to the State wide system of roads, affords any justification for centralizing the powers of local taxation in a manner not contemplated by the Constitution, nor for ignoring constitutional barriers separating State and local government. The necessity for such a system of highways may be conceded, and additional revenue for such local subdivisions may be imperative, but those objects must be accomplished by the means contemplated by our Constitution and by methods consistent with the fundamental principles of government thereby ordained. The Constitution can not be made to mean one thing at one time, and another at some subsequent time. State v. Butler, 70 Fla. 102, 69 So. R. 771.

As the second and third gas taxes are county taxes, it next becomes pertinent to consider whether the Legislature may directly levy, or may compel the levy by local officers, of a county tax. By “county tax,” as used throughout this opinion, is meant a tax for an exclusively county purpose in which the State-has no sovereign interest or responsibility, and which has no connection with the duties of the county in its relation- to the State:

We do not intend in this opinion to decide upon any question relating to the power of the legislature to directly impose certain local district -taxes, as for instances the Everglades Drainage District or districts formed by local petition. There being no specific limitation in the Constitution upon the formation of such-districts, the direct levy of taxes of that character rests in' part upon principles other than those now under consideration. Lainhart v. Catts, 73 Fla. 735, 75 So. R. 47.

In Cheney v. Jones, 14 Fla. 587, the Court had under consideration the limitations upon the legislature in imposing State taxes. It was distinctly held that .in levying State taxes the legislature is limited to the purpose of defraying the expenses of the State. In that case the Court was not concerned with the power of the legislature to directly impose taxes for county purposes. Moreover, the Court in that case had under consideration the imposition of ad valorem, taxes only. What is said there has reference only to an ad valorem tax imposed as a State tax. When it is said therein that the section under consideration (now Sec. 2 of Art. 9) prescribes how far the legislature may go “in levying taxes,” the Court necessarily meant “in levying ad valorem taxes for State purposes.” No question concerning an excise tax was presented, so the Court did not concern itself with that matter, nor with the provisions of the Constitution with reference thereto. We again affirm what was said in Cheney v. Jones as applied to the character of taxation there under consideration, namely, an ad valorem tax for State purposes, levied under Sec. 2 of Art 9 of the Constitution.

Here, however, we are concerned with an excise or license tax, levied as a county tax. We must, therefore, consider other provisions of the Constitution, including Sec. 5 of Art. 9.

In Article 8 of the Constitution the people recognized counties as ‘ ‘ legal political divisions of the State ’ ’ and provided for county officers. In Sec. 2 of Art. 9 the Constitution requires the legislature itself to provide revenue sufficient to defray expenses of the State. In Sec. 5 of Art. 9, which pertains to the levy of taxes to meet' the expense of local county (and municipal) government the command of the Constitut