Doody v. State Ex Rel. Mobile CountyDoody v. State Ex Rel. Mobile County
The governing body of Mobile county contracted for the sale of funding bonds in the amount of $1,200,000.00, and $150,000.00 refunding bonds, pursuant to the authority granted by the constitutional Amendment (29) adopted December 17, 1935 (1936 Cumulative Supplement to Michie’s Alabama Code of 1928, p. 18; Gen.Acts 1935, p. 810), and the local enabling act, approved April 10, 1936 (Local Acts, Extra Sess. 1936, p. 58), and the validity of this bond issue is assailed in this proceeding.
It is argued that both the said constitutional amеndment and the local enabling act are invalid, and we turn first to a consideration of this insistence.
As to the amendment, the attack is twofold. The first relates to the manner of its passage by the Legislature. It was in the form оf an act, and after its due passage by the House and Senate, with the
*290
required three-fifths majority (section 284, Constitution; Jones v. McDade,
But we think this is too narrow a view of the legislative authority over its own procedure. The Legislature was still in session. The Governor had no authority over such a proposed amendment (section 287, Constitution; Jones v. McDade, supra; Johnson v. Craft, suрra) a fact fully recognized by him in his letter to the House, but merely offered a suggested change for consideration, which he thought might prove beneficial and make the act more consistent. The proper сustodian of the proposed amendment was the secretary of state (section 134, Constitution; section 778 et seq., Code 1923), and before it reached that office, and while the Legislature was in session, it had authority tо order its recall for further consideration and final passage. In section 53 of our Constitution is the provision that “each house shall have power to determine the rules of its proceedings * * * and the two housеs shall have all the powers necessary for the legislature of a free state.” As a deliberative body the Legislature had the right of reconsideration of the bill before it reached its final custodian, and while still in continuing session. 46 Corpus Juris 1383; Crawford v. Gilchrist,
We have not before us any question'concerning a result if the proposed amendment had in fact reached the office of the secretary of state, and that matter is therefore left undetermined.
The bill then reached the office of secretary of state, and the Governor issued the proclamation of notice of the elеction as provided by section 284 of the Constitution. This proclamation was duly advertised in every county in the state, save.one — Walker county, and this failure of advertisement in the county of Walker is the basis for the remаining attack on the amendment.
Our cases recognize the mandatory character of constitutional provisions as to amending the fundamental law (Jones v. McDade, supra; Johnson v. Craft, supra), but as to legislativе details the rule has been adopted that if the constitutional requirements are met “in substance and legal effect” it will suffice. “To hold otherwise,” observed the court in Realty Investment Co. v. City of Mobile,
The cases of Manos v. State,
It appears, therefore, that the constitutional amendment was duly adopted and is valid.
As to the enabling act, the attack is likewise twofold, but brief discussion will *291 suffice. Thе insistence that this local act is violative of subdivision 17 of section 104 of the Constitution for the reason that it authorizes the issuance of the bonds without the vote of the qualified electors of the county is without merit. This for thе reason that the constitutional amendment, first discussed, expressly empowers the Legislature to authorize this bond issue, and by said amendment the issuance of the same is taken without the influence of said section 104.
The sеcond insistence as to the local act is that it was not passed pursuant to section 106 of the Constitution as to the matter of publication “once a week for four consecutive weeks.” But this does not nеcessarily mean 28 days, as appellant appears to argue. This local act was introduced on the 25th day after its first publication, but there had been publication in a newspaper once a wеek for four consecutive weeks between the first publication and the introduction of the bill, thus meeting the requirements of our Constitution, though the 28 days had not intervened. Such was the holding of this court in ex parte Lower,
The local act is, therefore, likewise valid.
Other оbjections to the bond issue require but brief consideration. The fact that the proceeds of the bonds may not be paid out simultaneously with their issuance,'does not serve to increase the indebtedness of the сounty beyond the constitutional limit. The constitutional amendment contemplated the funding of unbonded indebtedness and bonded indebtedness past due on September 30, 1936, and authorized the issuance of bonds for that purpose from time to time. The evidence shows this indebtedness is due to various parties and is in various amounts. Some of it is evidenced by warrants not yet due, and the local act makes provision for funding of this indebtedness also with thе consent of the holders thereof.
It is clear, therefore, that the arrangement whereby some of the funds must remain on deposit in the bank, subject to be used in the payment of such indebtedness when maturing or earlier if agreeable, cannot be said to offend any constitutional provision as to indebtedness limitation, particularly viewed in the light of the language of this constitutional amendment and its evident purpose. And the languagе of this Court in Brown, Treas. v. Gay-Padgett Hardware Co.,
The governing body of the county is given authority to issue these bonds in payment or exchange for the indebtedness therein referred to. The validity of the indebtedness is shown by the prоof in the report of the county treasurer. The county officials are charged with the application of the proceeds of these bonds to the payment of valid claims, with severe penalties for violation of their duties in this regard, and given authority to issue the bonds for this purpose they are necessarily given like authority to determine the validity of the indebtedness or the proper application of the proceeds in accordance with the directions found in the constitutional amendment and the local enabling act. And the fact that the proceeds of the bonds might be applied to an illegal use is no аnswer to the issuance of the bonds, and the application of the proceeds is not a matter chargeable to the bond purchasers.
These discussions should serve as an answer to objections a, b, аnd c, set up in respondent’s answer to the petition.
The fact that in section 5 of the local enabling act, the county is directed to designate the fund from which these bonds are payable in no manner affects their status as general obligations of the county, the tax supplying the fund being levied over the entire county. There is nothing in said section indicating any legislative intent that the bonds should not be a general obligation of the сounty; but, on the other hand, the entire act demonstrates to the contrary. This suffices for paragraph h of the answer.
The $150,000 school bonds were for public school buildings. We think that such a purpose may properly be said to come within the meaning of “necessary public buildings,” as used in section 215 of the Constitution, and that there is nothing in Abramson v. Hard,
Moreover, this constitutional amendment expressly authorizes the Legislature to make provision also for refunding bonded indebtedness past due on September 30, 1936, and this $150,000 comes within the influence of that provision of the amendment and of the enabling act, and thus was so expressly authorized.
*292 The local enabling act makes this bond issue subject to the provisions of the municipal bond code, which provides what the advertisement of the sale of the bonds shall contain. ■ Gen.Aсts 1935, p. 579. It does not require that the notice should show from what funds the bonds are payable. It is insisted that the private sale made within 30 days after a failure to receive a bid on the publicly advertised -sale must conform tо the published sale in all respects.
Whatever may be said of this insistence in general, we think it clear it could not be made applicable to a feature of the advertised bid, not required by the statute, and this suffices as an answer to paragraph k.
Conceding the sale at par with 1 per cent, deduction for expenses would make the sale at 99 cents on the dollar, considering the fact that the municipal code provisions above referred to are aрplicable here, this would present no objection, as that statute authorizes as much as five per cent, deduction fo.r such expenses.
We have considered each objection raised in the answer, and our conclusion is in harmony with that of the court below to the effect none of them present a valid objection to this bond issue, and that the peremptory writ was properly ordered issued. We think, therefore, that the judgment of the trial court should be here affirmed, and it is so ordered.
Affirmed.