Coleman v. Town of Eutaw, 47 So. 703

McCLELLAN, J,

— Thе bill in this cause was filed by Thomas W. Coleman and four other taxpayers and residents of Eutaw, in this state, for the purpose of enjoining issues of bonds of the municipality of the town of Eutaw as upon a compliance with the provisions of section 222 of the Constitution of 1901, and the act of the Legislature to be found in Acts 1903, p. 59 et seq., authorizing the issuance of bonds by municipalities under certain restrictions and by certain methods therein provided. A cross-appeal, by the respondents to the bill, brings up for review the questions.to be considered and decided.

It is first insisted by the cross-appellants that since by seсtion 7 of the act before mentioned provision is 'undertaken to be made for the contest of an election held thereunder through the process formulated for the contest of elections of justices of the peace, and since by section 1671 of the Code (1896) our courts of equity .are forbidden jurisdiction of election contests, this bill is without equity. This objection is untenable, for the reason that the attempted assimilation of the method for contesting elections of officers is entirely inappropriate. —Beason v. Shaw, 148 Ala. 544, 42 South. 661. An additional, and perhaps stronger, reason is here present in the fact that the primary object and equity of the bill is to prevent the misuse of corporate power — the illegal creation of a debt against the municipality. True, the ascertainment vel non of this action may, and here does, involve the validity of an election; but the greater objective of the bill necessarily obscures the asserted equity denying jurisdiction of an inquiry into the validity of an election. That this conclusion is sound is demonstrated, we think, when it is considered that every condition precedent to the valid issue of such bonds may have been met including a perfectly valid -electiоn, vet, if that issue of bonds would result in creating a debt in excess of the constitutional limitation for that municipality, that issue of bonds would be void, valueless. The invalidating cimcumstance could not inhere in the election, but in the corporate power to so engage in excess of the limitation. Authorities are abundant for the exercise in equity of injunctive relief in such cases.—Crampton v. Zabriskie, 101 U. S. 601, 609, 25 L. Ed. 1070; Simonton on Munic. Bonds, §§ 156, 158, 159 ; Harris on Munic. Bonds, pp. 281, 282. This disposes of the preliminary question.

Three sets of bonds were proposed to be issued by the town of Eutaw, viz., one for the purpose of constructing streets, one for the purpоse of purchasing or constructing a public school building, and one for the purpose of ■ purchasing waterworks and electric light plant. Separate ordinances, looking to the issue of each set of bonds, were adopted by the governing body; and the voters, in varying majorities, approved the mentioned issues, three separate ballots being respectively employed as the medium of expression of the popular will. The first ground of asserted invalidity of the bonds, if allowed to issue,-is that the ballot, in each case, was not in the form prescribed by the Constitution. The act before cited, in respect of the ballot, is a copy of the Constitution. These ballots, respectively, contained, besides a caption announcing the general purpose of the election, on two separate lines, with marginal extension on either side of each line, the words “For bond issue,” and “Against bond issue.” BelOAv this, in parenthesis, there Avas printed on each set of ballots, corresponding to the respective sets of bonds proposed to be issued, a statement describing the bonds, including the amount, rate of interest, time to run, denomination of each bond, and the purpоse of the issue. Section 222 of the Constitution, as presently important, is as follows: “The Legislature, after the ratification of this Constitution, shall haive authoirity to pass general laws authorizing the counties, cities, towns, villages, districts or other political subdivisions of counties to issue bonds; (a) but no bonds shall be issued under authority of a general law unless such issue of bonds be first authorized by a majority vote by ballot of the qualified voters of such county city, town, village, district, or other political subdivision of a county, voting upon such proposition. The ballot used at such election shall contain the words: ‘For _______ bond issue/ аnd ‘Against__,____bond issue’ (the character of the bond to be shown in the blank space), and the voter shall indicate his choice by placing a cross mark before or after the one or the other.” The point raised and urged for appellants is that the ballot was abortive, because of ‍‌‌​‌‌​‌‌​​‌‌‌‌‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌​‌​‌‌‌‌​​​‌‍the failure to insert the character of the bond in the blank space between the words “For” and “bond issue,” and between the words “Against” and “bond issue.” Oross-appellants assert an answer to this insistence to be, viz: First, that in the preparation or form of the ballot the ■ quoted constitutional provision is directory merely, not mandatory, and hence, in the absence of express pronouncement to the contratry, nonobservance is an irregularity at most; second, that, if mandatory, a substantial compliance was had by the printing of the mentioned description of the bond on the face of the ballot. The fact that mere place on the ballot of the character of the bond is the. gist of the suggested invalidity of the proposed issues has necessarily quickened our sense of assurance to correctness before finally attaining a conclusion in the premises. At first blush the objection seemed to. be only a sticking in the bark — hypercritical at best. Yet, when we consid er that a constitutional, not a statutory, provision is involved, that conditions precedent are being dealt with, and that the intention of the Constitution maters, not our ideas of what may seem trivial or our notions of Avliat might appear unnecessary particularity, is the pith of the inquiry, we cannot avoid the conviction that the provision in question is mandatory, and that a failure to observe its mandate in the form of the ballot — a failure made Avhen the character of the issue is not shoAvn betAveen the Avords indicаted in the section quoted — is fatal to the valid issue of the bonds of a municipality.

First. Is the provision with reference to the form • mandatory or directory? A determination of this inquiry Avithout giving due Aveight to the general and long-maintained attitude of this court, and never yet, so far as we are uoav advised, altered to any degree, AAdth respect to the imperativeness of constitutional provisions generally, would be the omission of Avhat appears to us a vitally important consideration. The first of onr decisions to indicate the general attitude of this court is Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9. The question decided inAmlved the constitutionаlity vel non of an act revising or amending a previous enactment, and the clause of the Constitution pertinent was that requiring the revised or amended law or section to be set out at length. The point was taken that this requirement was directory — merely prescribing a rule of legislative procedure that to violate Avould not avoid the enactment. The court held the requirement to be mandatory. Chief Justice Walker, speaking for the court, said: “The decision in Ohio (Lehman v. McBride, 15 Ohio St. 573) is examined in People v. Lawrence, 36 Barb. (N. Y.) 177, and we entirely concur with the opinion in that case that it is not allowable to set aside the obligation of a constitutional provision as directory. Thеre are, it must be conceded, regulations in the Constitution which are merely parliamentary rules, a want of conformity to which would not make a law void.—People v. Board of Supervisors, 27 Barb. (N. Y.) 575.” We will later refer to both the cases cited from Barbour’s Reports. In Weaver v. Lapsley, 43 Ala. 224, the Olmstead Case is approved, in reasoning and conclusion and followed. In Ex parte State, 52 Ala. 231, 23 Am. Rep. 567, the inquiry was whether the constitutional provision, viz., “that suits may be brought against the state in such courts as may by law be provided,” was mandatory or directory; and it was ruled that the provision conferred a discretionary power, and was not a mandate —a conclusion largely influenced by a comparison of the provision of the then organic law with that of stronger, morе imperative, nature employed in the Constitution of 1819..

In Perry County v. Railroad Company, 58 Ala. 556, treating the general subject with which we are concerned, it is said: “We adopt as our own the language of one of the soundest and most thorough thinkers and jurists who have written on the subject of organic law embodied in our Constitutions: ‘The courts tread upon dangerous ground 'when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a Constitution. ‍‌‌​‌‌​‌‌​​‌‌‌‌‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌​‌​‌‌‌‌​​​‌‍Constitutions do not usually undertake to prescribe mere rules or proceeding, except when such rules are looked upon as essential to the things to be donе; and they must then be regarded in the light of limitation upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and to fix those unvarying rules, by which all the departments of government must at all times shape their conduct. * * * We are not, therefore, to expect to find in a Constitution provisions which the people, in adopting it, have not regarded as of high importance, and Avorthy to be embraced in our instrument, which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power Avhich can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a poAver should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only.’ Cooley, Const. Lim. (7th Ed.) p. 114.” We continue the quotation where that appropriated left off: “And we impute to the people a want of due appreciation "of the purpose and proper province of such an instrument when we infer that such directions are given to any other end.” Immediately following the quotation, which, in sequence, we have extended, the opinion lays down this rule: “We think the only safe rule for interpreting clauses of the Constitution which command certain things to be done, or certain methods to be observed in the enactment of statutes, is to hold that, when it is affirmatively shown by legal evidence that in the attempt to legislate some mandate of the Constitution has been disregarded, such attempt never becomes a law.”

The case of People v. Lawrence, 36 Barb. (N. Y.) 177, is a well-considered adjudication supporting our Olmstead Case in its broad declaration, qualified only with respect to regulations of a merely parliamentary nature, “that it is not allowable to set aside the obligation of a constitutional ■ provision as directory.” Therein it is said: “I think it Avill be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory and not imperative.” And in the course of this opinion the intimation in People v. Supervisors, 27 Barb. (N. Y.) 575, that it might become necessary to pronounce certain portions of the Constitution of New York directory merely, as only establishing a rule of legislative practice, is said not tо have been “adopted by the court, nor even by the opinion, nor was it indicated as anything more than what might become the dictate of necessity, to relieve the legislature of the state of insuperable embarrassments. It would be law for an extreme case, if it should ever be laid down as law at all.”

We can deduce from our own adjudications mentioned and from the authorities on which they are rested no other rule than that provisions of the organic law, defining a particular mode in which a power is to be ■exercised, must be taken as limitations against and restrictions upon the observance of any other mode than that prescribed in the organic law, and that a mode attempted other than that particularly defined can work nothing but a nullity.

We are cited, as opposing this conclusion, to many decisions of other jurisdictions and also to the expressions of several text-writers, We have examined them all, and find that, with few exceptions, the decisions and texts relate to the construction of statutory, not constitutional, provisions. But, assuming that some of these citations from other courts assert conclusions in necessarily ‍‌‌​‌‌​‌‌​​‌‌‌‌‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌​‌​‌‌‌‌​​​‌‍apt opposition to what we have seen has been, at least twice, announced by this tribunal, we discover in them no paramount reason to reverse the stated vieAV in the premises of this court, with due reference to which we feel impelled to conclude the makers of the Constitution constructed that fundamental instrument. To them our cited adjudications bore the information that, unless otherwise qualified, every provision of the instrument, except perhaps those relating to mere parliamentary procedure, though this is not now necessary to be affirmed, prescribing a mode for the exercise of аny power, would be interpreted as limiting the exercise of the po w-er to that mode only; and if we should now depart from that rule the action of this court, and not the true intent of the Constitution makers, as should control, would naturally affect the interpretation of the instrument; for such reversal would entirely eliminate a consideration that existed at the time the instrument was written, and which the makers thereof have not, in this instance, negatived in terms or by reason that occurs to us why this long-maintained attitude of this court in the construction of our organic laws is not an apt analogy of the doctrine that thе adoption of statute, clause, or term after known judicial construction thereof operates to legislatively or constitutionally clothe the enactment, embracing them, or either of them, with that meaning, unless negation is written therewith, or is necessarily impliable from the manner and circumstances of employment. Additional to this, without needlessly lengthening this phase of the opinion, the weight of authority and best-considered cases is opposed to the first stated insistence of cross-appellants. Cooley, Const. Lim. p. 115; 8 Cyc. p. 762, and notes; Varney v. Justice, 86 Ky. 596. 600, 601, 6 S. W. .457.

The only inquiry left under this head of the discussion is whethеr the provision of section 222 in respect of the form of the ballot is unequivocal, in the sense that no discretion in observance is anywhere reposed. The question suggested is brought the nearer to exactness by the inquiry: Would an act of the Legislature he constitutional. valid, in this particular, that provided fur a form of ballot, in such cases, different to that presented. by section 222? After expressly inhibiting the issuance of bonds of municipalities, etc., under the authority of a general law, previously therein mentioned, unless authorized by a majority vote by ballot of the qualified voters of the municipality, etc., voting upon the proposition, it is provided: “The ballot used at such election shall contain the words: ‘For__,_____bond issue,’ and ‘Against i______bond issue’ (the character of the bond to be shown in the blank space), and the voter shall indicate his choice by placing a cross mark before or after the one or the other.” The paramount conditions precedent for the valid issuance of such bonds, declared in the form of an imperative prohibition, is that a majority of the qualified voters of the interested territory, voting on the proposition, shall vote therefor. Not content with this unqualified restriсtion upon the issuance of such bonds, the writers of the instrument, in emphasis of the purpose to guard such issuance of bonds against improvidences in any form, declare the form of the ballot and the method whereby the voter should express his choice are plainly provided for. In so doing the Constitution makers give the highest evidence of the importance of these two prescriptions. They evidence thereby the conclusion, binding upon all within its sphere, that a general requirement for a majority vote by ballot was not sufficient, but that the two essentials to the ascertainment of the choice of the majority concerned, viz., the bállot to be used and the method of expressing the voter’s choice thereon, should be particularly required and prescribed by the instrument itself, thus clearly negativing an intention to repose any discretion anywhere in respect of these two essentials.

But it is suggested that these provisions relate to elections, and that the general policy of the law is to interpret provisions of that character with such laxity as not to embarrass the major purpose, viz., tbe ascertainment of tbe popular will. This argument is forceful in support of the viеw that the provisions under consideration are imperative, operating as limitations and restrictions upon any other method of exercise of the power, rather than in refutation thereof. Because the makers of the instrument must have been, when framing these provisions, conscious of the general policy of the law in dealing with elections under statutory authority, and, being so conscious, that they wrote in commanding terms, prescribing the form of the ballot and the mode for expressing the voter’s choice, is, we think, proof conclusive that the intent was to forestall, in elections fоr the issuance of such bonds, any possibility of the application thereto of the rule that modes, in election statutes, must yield to the broader policy of an ascertainment with reasonable certainty of the popular will. If this is not true, Avhat was the occasion to prescribe at all the form of the ballot and the method of choice? If we grant the premise of cross-appellants that the stated policy of the law is as stated, we must assume that the Constitution makers knew that policy, and, if so, and if applied here, the result would be to impute to them the folly of having written in the оrganic law, solemn and permanent and important as it is, wholly useless provisions; for the reason that the whole purpose would, upon that theory, have been fulfilled by the requirement only of a majority vote by ballot. In short the argument, predicated upon the general policy of the law with respect to elections, impressed, we think, the makers of the instrument with the vital (to them) importance and necessity to safeguard this power of issuing bonds to the limit of wisely provided detail. Now what is the form of the ballot prescribed?

Much of the argument is specially devoted to this inquiry. It is urged that the parenthеtical statement, viz., “the chaiacter of the bond to be shown in- the blank space,” does not import a requirement that the character of the bond shall be shown in the space indicated by the dotted lines; further, that the space mentioned does not necessarily refer only to those lines. It is true the singular of “space” is used, whereas there are two spaces indicated by the dotted lines. This is entirely an unimportant matter, if, as we shall later consider, the provision has reference only to those spaces by the dotted lines; for the reason that the mere failure to supрly the plural instead of the singular could not serve to defeat the clearly expressed intent to refer to the two spaces indicated by the two dotted lines. Nor do we think that the imperativeness vel non of the entire provision for from of ballot, subject to the argued influence, in interpretation, of the words “to be” appearing in the parenthetical expression; for the reason that that expression cannot be read otherwise than as having reference to space previously indicated, and is, hence, in no sense an independent statement. It is explanаtory.

The imperative “shall” is the marrow of the intent in this connection. It would be unreasonable in the extreme to say, and it cannot be that the intent was, by the employment of that imperative, to require only the presence of the stated words on the ballot, and to thereby wholly ignore any effect to the spaces indicated and to the parenthetical explanatory ‍‌‌​‌‌​‌‌​​‌‌‌‌‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌​‌​‌‌‌‌​​​‌‍expression. If so, it is obvious that a part of the provision would he erased from the instrument. If the dotted spaces had been left without explanation of their purpose, of course, it miolit he well said that, sinсe their purpose is not stated, we cannot supnly one. But the explanation is expressly afforded, and that explanation is colored in imperativeness by the use of indication spaces, by the command stated, viz., that the ballot shall contain the words des- ^ ignated and between certain of them the character of the bond shall be stated; in other words, the idea intended to be expressed, and it is so expressed, that the ballot shall contain the designated words and between those indicated the character of the bonds shall be shown. This is demonstrated conclusively, we think, by the provision that “the voter shall indicate his choice by placing a cross mark before or after the one or the other.” What “one or the other?” Manifestly, “before or after one or the other” of two propositions submitted to his choice. How are they to be submitted — shown on the ballot — in order to be propositions subject to the mechanically expressed memorial of his choice? The answer can only be, stating, in sequence on the ballot, the alternatives, for or against a designated bond issue. The cross mark was intended to give an affirmative or negative response to two propositions; and the submission thereof to the voter is the only feasible and safe method, namely, simply state them, each in a separate clause, on the ballot. By pursuing that course, and no other can be- reasonably read from section 222, the question submitted, and the choice there between by the voter, become one clause on the paper and announce with perfect exactness his vote in the premises. The section refers only to those spaces indicated by the dotted lines. Where is the warrant, in the section, to place the desсription of the bond elsewhere? If the provision requiring the character of the bond to be shown in those spaces is disregarded, where is any provision requiring the character of the bond to be anywhere shown on the ballot? Why show its character at all? If it is not requisite to do so, the ceremony is useless, vain, for the obvious reason that it is not a compliance at all. So far as the constitutional mandate is concerned, it might just as well have been entirely omitted as placed where it was. The prohibition is that unless the ballot is in the form prescribed no valid bond can issue in such cases. The inhibition Avas not met, and the bonds of Eutaw cannot, therefore, issue for either of the three purposes contemplated.

•There is no merit in the insistence of original appellants that the submission, at one time, at one place, and, Ave may add, in an election held by one' set of officers, of three separate propositions, three separate ballots being afforded for the separate expression of each voter of his choice on each of the three propositions, and a separate ascertainment of the result, would invalidatе the- issue or issues of proposed, bonds. —Maybin v. City of Biloxi, 77 Miss. 673, 28 South. 566. Such a submission not only met the conditions in that regard, raised by the Constitution and the act, but afforded the voter an opportunity to express, if he so desired, his preference, upon relative public necessity, as between the creating of a debt for one or two of the three purposes to effectuate which the issues of bonds were proposed. All three of the propositions Avere sanctioned by a majority of the voters, though by varying numbers, thus indicating that some regarded, and so voted, the public necessity of the proposed action by the municipality to be stronger and more desirable in one instance than in the other or others. That character of submission could not affect to cloud the issue presented to the voter’s choice. It was an appropriate exercise of the discretion reposed in the council. The Constitution does not assume, in the particular presently important, to provide for the purposes to which the proceeds of bond issues shall be devoted. It provides a general prohibition against the issue of bonds, aside from the exceptions set forth in section 222,

without сompliance with the conditions precedent — limitations — prescribed in that section, leaving the Legislature otherwise unrestricted in the premises. The act approved February 25, 1903, defines the purposes for which municipalities may issue bonds, and the governing bodies thereof are authorized to order elections to take the sense of the voters concerned in accordance with the constitutional requirements.

One of the propositions submitted to the voters was the issuance vel non of bonds of the municipality for the purpose of purchasing waterworks and eleсtric light plant.” It is urged for appellants that such proposition involved the summission of a double purpose. If it is assumed that the act, under fair construction, intends that the question submitted to the voters shall not be the result of a blending of any two or more incongruous purposes authorized by the act to warrant the issue of bonds, we do not think the proposition submitted, as stated, offensive to the provisions of the act in any particular. Doubtless, though it is unnecessary to now affirm it, the blending into one proposition, looking to a ballot of the authorized purpose of building bridges and school houses, suggesting an unsеparated' sum for both objects would involve an incongruous association of purposes. But where the purpose evolved in the blending is the product of two of the purposes enumerated in the act for which bonds may be issued, and they might naturally and reasonably be deemed or made a part of one of a more general scheme, we are of the opinion that the act does not inhibit the exercise by the governing body of a discretion to blend into one proposition for submission .'to the voters such enumerated purposes; for instance, we merely suggest, the building of bridges аnd constructing streets. They, very naturally and reasonably, might compose one scheme or purpose for municipal improvement. It is likewise, we think, with respect to a water and light plant. We cannot be ignorant of the fact that both these public utilities are usually given effective existence by the use of steam engines, nor can we ignore the further fact that one steam plant can and does often afford the requisite power to operate each of these utilities. If so, the fact that entirely different means for the transmission of water and of electricity are employed cannot avail to remove from practical consideration the vital agency— poAver— common to their efficiency. Of course, if appellant’s contention were sanctioned here, there could be no initiative of a combined water and light ‍‌‌​‌‌​‌‌​​‌‌‌‌‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌‌​​‌​‌​‌‌‌‌​​​‌‍plant in a municipality without either; and the result would be that the voter Avoulcl be denied the opportunity to vote upon, and the governing body to submit, a proposition the practical and economical accomplishment of which might, naturally and reasonably, depend upon the conjoint installation and operation of a plant deriving motive pOAver from a common mechanism. True, a voter might desire to approve by his ballot the construction or purchase of a water plant, but be opposed to the construction of a light plant. His remedy must be to vote against the whole proposition, rather than that the law should be rendered practically abortive by an effort to conform it to his particular views.

In briefs of solicitors for cross-appellants may ,be found several well-considered adjudications of other jurisdictions supporting the views expressed before; and solicitors for appellants present in their briefs decisions from other jurisdictions opposed thereto. We see no occasion to enter on a discussion pro or con of them. The reasoning given before compels, we think, the conclusive announced. Appellants urge that the case of Woodlawn v. Cain, 135 Ala. 371, 33 South. 151, should be accorded influence in determining this contention. That case involved the submission to the voters of Wood-lawn for their determination “two separate and distinct and unconnected purposes, one to pay interest on $25,-000 of new 5 per cent, bonds with which it proрosed to compromise and settle an old debt of $32,000 bearing 8 per cent, interest, the other to make and maintain public improvements.” The inapplicability of this case to the inquiry at bar is apparent.

The constitutional mandate in respect of form of the ballot, in each of the three instances, not having been performed, the demurrer assailing that phase of the bill should have been overruled. The decree below sustaining that demurrer will be reversed, and one will be here entered overruling the same. Necessarily the bill has equity, and the decree overruling the motion, assigned as error by cross-appellants, will be affirmed.

Affirmed in part, reversed and rendered in part, and remanded.

Tyson, C. J., and Dowdeee and Anderson, JJ., concur.

Case Details

Case Name: Coleman v. Town of Eutaw

Court Name: Supreme Court of Alabama

Date Published: Nov 12, 1908

Citations: 47 So. 703; 1908 Ala. LEXIS 188; 157 Ala. 327

Court Abbreviation: Ala.