101 So. 462 | Ala. | 1924
This is an appeal from the decree of the probate court of Lauderdale county, sustaining a contest of a special election held on December 10, 1923, in the city of Florence, under a provision of the constitutional amendment provided for by General Acts 1919, p. 899.
The constitutional amendment above referred to provides that elections thereunder shall be contested as municipal bond issues are contested. The latter contests are governed by the same rules as those for the election of justices of the peace. Section 1427, Code 1907. Under section 471, Code of 1907, the contest of the election of a justice of the peace was before the probate judge.
While this manner of contest has been amended by the Acts of 1911, p. 195, so as to place the jurisdiction in the circuit court, yet it is in effect conceded by counsel for appellant that, if the case of Hutto v. Walker County,
"As a rule, the adoption of a statute by reference is construed as an adoption of the law as it existed at the time the adopting statute was passed, and therefore is not affected by any subsequent modification or repeal of the statute adopted."
The contest was therefore properly filed with the probate judge.
One of the grounds of the contest questioned the validity of the constitutional amendment, under authority of which the special election was held, insisting that the amendment had not been properly adopted, and was therefore void. It was conceded in argument that, under the authority of Phillips v. Bynum,
There were two other grounds of contest, the first being that the ballot form provided a levy for a longer period than was authorized by the constitutional amendment, and the second that the canvassing board declared the result of the election according to their count of the ballots, and not according to the certificates of the inspectors. It is insisted by counsel for appellee that the first *619
ground, above stated, came within subdivision 3, § 455, Code 1907, which is the statutory ground of contest, on account of illegal votes, and that the second ground above stated constituted malconduct on the part of the board of supervisors, within subdivision 1 of said section 455 — citing Ex parte Shepherd,
In view of the conclusion which we have reached, however, we pretermit a consideration of all preliminary questions, preferring to rest our decision upon the meritorious questions here sought to be reviewed.
We will first consider the ground, "on account of the illegal votes." This rests upon the insistence that the ballot was an illegal ballot; it was as follows:
"Mark a cross mark before or after the proposition you vote for (X).
------------------------------------------------------------ For one-half of one per centum excess rate| | of taxation for the year 1924 and for each| | year thereafter. | | ------------------------------------------------------------ Against one-half of one per centum excess | | rate of taxation for the year 1924 and for| | each year thereafter." | | ------------------------------------------------------------
The constitutional amendment under which this election was held authorized additional levies of taxation for bonds and other purposes, not necessary to here mention, without the necessity of an election, and made a further provision that a majority of the qualified electors in any of said municipal corporations, voting at an election called for that purpose, may vote a special tax not to exceed one-half of 1 per cent. in any one year for any special purpose or purposes, which tax shall be used only for the purpose or purposes for which the same is levied and collected. The amendment further provides as follows:
"The ballots used at such election shall contain the words: 'For __________ excess rate of taxation for the year (or years) __________;' and 'against __________ excess rate of taxation for the year (or years) __________.' The rate of taxation proposed in excess of the rate of one (1) per centum to be shown in the blank space provided therefor and the year or years in which the proposed rate is to apply to be shown in the blank space provided therefor; and in the event different excess rates are proposed for different years the words mentioned shall be repeated as often as may be necessary to show separately the different rates proposed to be applied to the respective years."
The ballot used in the instant case does not specify any particular number of years, but only for the tax year beginning October 1, 1924, and for each year thereafter. Counsel for appellee insists that the failure of this ballot to specify a given number of years renders it illegal.
It is to be noted that this special election may be called for the authorization of an excess rate of taxation for more than one purpose. If the authority of the taxing power was to be limited, for either purpose, to a certain number of years, then it was essential that the number of years be specified in the ballot. Such was the effect of the holding of this court in Goodwin v. City of Birmingham,
The amendment here under consideration contains no limitation as to the number of years. It is not a levy of a tax, but a mere grant of authority to the taxing power of the city to levy the tax, if they see proper to do so. A vote in favor of the excess tax under the ballot here in question was not in itself a levy of tax in perpetuity, but was a grant of authority to the taxing power of the city to levy the tax from year to year, so long as they saw fit and deemed it wise and necessary. The words "year or years" in the form of ballot set out in the amendment have full field of operation in those instances, where the electors are to limit the period of time for which the tax is authorized, and especially where the tax levied is to be authorized for different purposes, and, perhaps, for different periods of time. In the absence, however, of any restrictive language in this amendment, we are of the opinion the form of ballot authorizing the levy of this tax for the year 1924, and each year thereafter, does not contravene said amendment, and is not illegal.
The next ground, the malconduct of the board of supervisors, rests upon the insistence that this board went behind the returns made by the inspectors at the election, counted the ballots, and declared a result contrary to that declared by the inspectors. Appellee insists this was beyond the board's authority, under the case of Leigh v. State, *620
In these municipal elections, therefore, we think it very clearly appears that it is the duty of the canvassing board to canvass the entire return, i. e., the certificates, the ballots and the poll list, and declare the results therefrom. That is what was done by the canvassing board in the instant case. While the question does not appear to have been directly presented in this state, we are cited by counsel for appellant to the case of Oglesby v. Sigman,
It appears without conflict that in one or two of the boxes there were in fact no certificates, but merely a memorandum as to the vote. We are of the opinion the canvassing board, in the instant case, were acting within the line of their authority in canvassing the whole return by counting the ballot and declaring the result therefrom. The case of Hudmon v. Slaughter, supra, concerned a construction of the language contained in the charter for the city of Opelika, and is without material bearing in the instant case.
We are persuaded there is still another answer to this ground of contest. Assimilating the provisions of section 456 of the Code of 1907 to an election of this character, manifestly, the malconduct complained of must have been such as to change the true result. Brunson v. Dobbs,
The court below improperly overruled the demurrer to these grounds of contest, as well as to those questioning the sufficiency of the ballots. The decree will be reversed, and one here rendered sustaining the demurrer, and the cause remanded.
Reversed, rendered, and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.
