Blakey v. City Council

39 So. 745 | Ala. | 1905

DOWDELL, J.

The act of the Legislature approved February 25, 1903, authorizing cities and towns to issue bonds (Acts 1903, p. 59), is not violative of section 45, art. 4, of the Constitution, which provides that “each law shall contain but one subject, which shall be clearly expressed in its title,” etc. The provisions for the election, and the issuance of the bonds in accordance with the result of the election, are embraced within and are clearly cognate and referable to the general subject expressed, which is to authorize cities and towns to issue Iannis for certain purposes. — Ballentyne v. Wickersham, 75 Ala. 533; Williams v. Board of Revenue, 123 Ala. 432, 26 South. 346; State v. Sayre, 118 Ala. 1, 24 South. 89; State v. Street, 117 Ala. 203, 23 South. 807; Woolf v. Taylor, 98 Ala. 254, 13 South. 688; Barnhill v. Teague, 96 Ala. 207, 11 South. 444; Judson v. City of Bessemer, 87 Ala. 240, 6 South. 267, 4 L. R. A. 742; Hare v. Kennerly, 83 Ala. 608, 3 South. 683.

There is no merit in the contention that section 222 of (he Constitution prohibits the passage of a single law covering the issuance of bonds, and that it requires that mere than one law shall be passed to authorize a city or town to issue the bonds. The authority to the Legislature, given by this section, is to pass general laws, authorizing counties, cities, towns, villages, districts, or other political subdivisions of counties, to issue bonds; and the plural word “laws” was employed manifestly for the purpose of allowing the Legislature to pass a different act for cities, towns, and villages, and another act for counties and political subdivisions of counties. . If the plural had not been used, and the legislature had been simply authorized to pass a general law, then it would have been compelled to pass one general law, applying alike to cities and counties. Section 62 of the Constitution has already been passed upon by this court in the case of Walker v. City Council, 139 Ala. 468, 36 South. 23. The decision in that case was adverse to appellant’s contention here.

The act under consideration is not rendered a local act by the provisions contained in section 10 (page 62) of the act. This section exempts from the provision of the act the cities of Sheffield and Tuscumbia-, and in so doing did nothing more than to copy into the act the provisions of section 225 of the Constitution, which exempted these two cities from the provisions of any general law which might be enacted by the Legislature, under article 12 of the Constitution, for the purpose for which the act under consideration was enacted. Just what is contained in section 10, excepting the cities of Sheffield and Tuscumbia, if the same had been omitted, would nevertheless have been read into- the act under the provisions in section 225 of the Constitution.

The allegation of complainant’s bill is that the minutes of the city council fail to show that any notice of the election was given. It does not aver, as a fact, that notice was not given. There is nothing in the act that the minutes of the city council should show that the notice of election was given. The bill also assails the validity of the election on the ground that the minutes or proceedings of the city council fail to sho-w that any returning officer was elected by the-council for said election. This is not equivalent to averring that no returning officer was in fact appointed or elected. Moreover, the failure to have a returning officei would not, we think, be sufficient to invalidate .the election on a collateral attack. Section 7 (page 61) of the act provides for the contest of the election. If the act had not provided for a contest, the court would have had jurisdiction to 3iave inquired into the alleged irregularity; but, since no contest was instituted, the presumption will be here indulged that the election was held in accordance with law. “Mere infirmities in the election, which do not affect the result of the election, or its fairness, will not necessarily render the election invalid and justify an injunction against the issuance of the bonds, or render the bonds, if issued, invalid.” — 21 Am. & Eng. Ency. Law (2d Ed.) p. 49, and authorities cited ;Fidelity Trust Co. v. Mayor, 96 Ky. 563, 29 S. W. 442.

If is true that the ordinance calling the election provided that the bonds should be either coupon or registemí bonds, at the option of the holder. The bill, however, does not aver that the bonds, which, it is alleged, the city had prepared and were offering for sale, were not coupon bonds.

Section 15 (page 63) of the act provides that no irregularity in the proceedings to authorize the issue of bonds under the act, nor the omission or neglect of an officer charged with executing any of the duties impsoed by the act, stall affect the validity of any bonds issued under the authority conferred bjr the act. The purpose of the election, provided for by the Constitution and by the act, was to give the voter the privilege of saying whether or not the bonds should be issued. It would seem that the matter complained of was nothing more than an irregularity, and such as would be cured by section 15 of the act.

We find no error in the record, and the decree appealed from will be affirmed.

Affirmed.

Haralson, Anderson, and Denson, JJ., concur.