*1 complied Aft- form. in literal cannot tie he is no more can do its issuance tie er proceeding determine to do—hear
matter its merits. foregoing
GARDNER, J., concurs
dissent. So. 869 TOWN OF SULLIGENT BANKHEAD
et al. Div. 576. Nettles, Jasper, appellant.
M. E. Neal, Bradley, White, W. M. Worn.B. White, Baldwin, all of All & amici curiae.
@=}For cases same in all see *2 Birmingham, Johnston, Cabaniss &
appellees. Willis, and S. Jas. H. Mobile, Jr.,
Gaillard, curim. amici
GARDNER, Justice. taxpayer and resi- Sulligent (a municipal- dent of the town of ity population 6,000), of less injunctive munioypal- seeks relief ity proposal its to issue bonds and enter acquisition op- contract as to into' of a eration combined waterworks and sew- erage for said as authorized Kelly Act, approved is known as what (Ex. Sess.) March 1933. See Acts p. 8S. The bonds to be issued known “rev- bonds,” payable enue as to and in- terest out of the revenue derived from proposed system. of Florence (this decided), the hold did create an in municipality, debtedness and that their issuance did contravene either section or section 222 of our'Constitution. question equally entire discussion of that 1 Post, p. 50. 'per- repeti- case, cussed. applicable and needs Greater administrative detail to this haps provided for than in in the instant case tion here. Guin, the town of essential instant The bonds same, governed factors the cases are the are, provided Act above principles. sufficiently like discloses Each noted, their face that written have *3 part no nicipality, mu- the on pursuant they to and said are possibly and no bondholder could bor indebtedness not constitute an do regard. in be misled that pro any constitutional state rower within carry message The that bonds their Differing statutory in limitation. vision or face, by but for convenience of transfer City Oppenheim particular of v. from this livery merely 14) provides (section Act, Florence, bonds the these under they qualities negotia- that shall have the of mortgage by a on lien secured are further n instruments the ble under law merchant and sewerage newly acquired and the Negotiable the Instruments Law. authority compel system, to but without But, by as the Ken observed sale thereof. All matters not herein discussed are treat- Bowling tucky City Kir v. in of Green court City in Florence ed v. of and 1004, statutory by, Ky. 839, this 220 W. 295 S. and of need expression.” meaningless lien is “not a here. elaboration default, may be a receiver event of the is, however, exception, vital one appointed instance of bondholder the at 22 to treatment section which relates the of imposition compel may of for rates the who of and further consid the which needs pay to the interest sufficient revenue Evidently Legislature consid eration. in accordance their retirement for bonds and ownership by ered the of water provisions the ordinance. with Kelly of sewerage great works bene a matter of specifically munici authorizes the Act fit, thought permit be it advisable pality to rates sufficient meet to fix ted, though already having their reached con and, obligations, no restriction is ex advantage limit, stitutional to take of debt yet stated, pressly are of we federal aid at this time in their construc language 18 of the of of section view act, also is tion. evident lawmakers were Constitution, our 22 ad section of apprehensive that in of size communities this City Co. of Water v. verted to in Alabama may possibly the revenues times insuffi at 490, 301, Attalla, 100 211 that Ala. purposes, operating to meet cient if ex a re construed with to be penses deducted, are first thus it imposed striction the fates be reasona municipalities to intended authorize such was subject ble to review the courts voluntary appropriation make to of out regard of a consumer. its available income from other sources for 421; Springfield Corpus Juris, 32 Gas Co. v. expenses operating to the bonds end that 236, 739, Springfield, 18 N. E. 292 Ill. 126 A. paid promptly thereon L. R. 929. due. when course, Presumably, the rates of to be fixed act, therefore, operat- 22 In section well to will reasonable as sfifficient ing expenses put secondary are to the bond- payments, specified and the author meet the payments. ed This section ex- recognize validity generally ities pressly concludes with rate-making agreements the statement binding of force such payable solely the bonds issued shall be from appropriate proceedings. in an enforceable redemp- Utah, 321, the revenues the bond and interest City, 878; P. Lehi 74 279 Barnes v. provision Loveland, tion fund. But the 27, 74 Colo. 218 v. Shields expenses part municipality 913; Bowling Kirby, City of Green P. v. voluntary, and, purely 1004; if the funds Ky. Fayette, were Bell v. S. 295 W. treasury purpose, for that 356; available S.W.(2d) Kentucky 75, 28 Mo. Utilities clearly objection can Ky. be no valid to Paris, 361; there their S.W.(2d) v. Co. system use to that end. Angeles, It is a owned Cal. v. Los Shelton subject course 421. the, just long town as no debt is new case differs from that .The instant of Smith created. 865,2 155 So. Town of Guin this voluntary regard decided, in most feature this immaterial de tails, except succeeding section, to the matters made herein dis- next
2Post, p. 61.
Noth- has
this
been issued under the
follows: “Section
reads as
which
prohibit
and that it
does
an indebt-
construed
constitute
he
in this
shall
Act
using
municipality
any
edness of
appropriating
state
within
from
borrower
the
any part
provision
statutory
constitutional
revenues
limita-
income or
or
of its
-
any
from
source other
derived
operation
system
system
or combined
of such
Clearly, therefore,
mere contribu
opera-
paying any
immediate
municipality
tion on the
of avail
or
maintenance of
tion or
operat
able income out
sources for
this Act
combined
ing expenses
pro
violates no constitutional
require
the borrower
construed to
vision,
opinion
stip
and we
continue,
necessary,
oper
ulation to
if
to so
*4
there shall 'be no
whole act discloses
income,
puch
only
ate out of
creates
municipal-
fastened on the
obligation
express pro
moral
a
view of
ity,
argued
agreement
it
that an
operate
on the vision of section
of the
act that the mu
plant
of the town to
so that nicipality may
required.
gross revenues should first
be devoted
is,
very
by terms of the
writ-
to the matter
bonded
is in-
stipulation
ten
into
face of such a
that it
consistent
legally
unenforceable.
pecuniary liability and section 225 of the
Other discussion
the case of Smith v.
Constitution.
adopted
Town of
is here
as a
dealing
itBut must be recalled
arewe
with part
of this
but we are
in ac-
power
Legislature,
the broad
with full cord
with the treatment of section 22
found
authority, except
as restrained
the .Con- therein.
stitution,
this same act the lawmakers
conclude, therefore,
We
that section
provide that,
were careful
viewed
connection with section
is>
might voluntarily
contribute out
entirely valid.
obtained,
available income otherwise
compelled
equity,
could not
The bill was
without
do so. Therefore
supplementary to,
murrer
materially
section 23 is
qualifies,
thereto
sustained.
preceding section,
and makes it
Let the decree be affirmed.
legal obligation
that no
can made
to Affirmed.
rest
stipulation.
the town on account of
being
legal
'binding
Not
a
obli-
THOMAS, BROWN,
KNIGHT, JJ.,
gation,
stipulation
could never become concur.
debt,
only
inquiry
and that is the
matter of
important.
here
ANDERSON,
J., and
O.
BOULDIN and
obligation
FOSTER,
create moral
JJ.,
dissent as to section 22
expressly
fully appears
states
expression
as more
“shall be construed to of their
views
therein
require the borrower
Guin, supra.
The bond- of
holder
not misled. His bond refers to the
prescribes
plainly
act
the limita-
city fails or
declines to furnish
If
gross
the event the
revenues are insufficient
in
the bonded
155 581
payments, then a default occurs
debtedness
which authorizes
tem,
v. STATE.
JACKSON
receivership
sys