65 S.E. 451 | S.C. | 1909
July 16, 1909. The opinion of the Court was delivered by This is an application to the Court, in the exercise of its original jurisdiction, for a writ of mandamus, requiring the respondents to sell certain bonds, amounting to $125,000, for the extension of the electric *143 lights and water works and the installation of a sewerage system for the town of Gaffney.
The questions at issue will appear, by reference to the petition, the amended answer and the reply, which will be set out, in the report of the case.
The first ground of objection interposed by the respondents is, "that said election, and the bonds issued in pursuance thereof, are invalid and unsalable, and that the proposition submitted to the voters did not separately state the items, nor the amount of the bonds to be issued, for the extension of the electric lights, for the extension of the water works, and for the installation of a sewerage system."
The sixth section of the act of 1908 (which is set out in the answer of the respondents) requires that the amount of the bonds to be voted upon shall be set forth in the notice of the election to be held for the purpose of determining whether bonds shall be issued to extend the electrical light plant or water works in the town of Gaffney or to secure additional water supply for said town. And in the seventh section of said act it is likewise required that the amount of the proposed bonds shall be set forth in the notice of the election upon the question of issuing bonds for the purpose of establishing and building a system of sewerage for the said town.
The intention of the Legislature was that there should be separate and distinct statements as to the amount of the bonds, for electric lights and water works, and as to the amount of those for establishing a sewerage system; and that the question of issuing bonds for the extension of the electric lights and water works presented an entirely different proposition from that of issuing bonds for establishing a sewerage system.
Therefore, the failure to give notice of the amounts respectively of the proposed bonds and the failure to submit *144 the different propositions separately to the voters rendered the election illegal and the bonds invalid.
But even if the manner in which the different propositions were submitted to the voters is considered apart from the statute, the same result would follow.
In the well-considered opinion in the case of Rea v. Cityof Lafayette, 61 S.E.R. (Ga.), 707, it was ruled that when several distinct and independent propositions for the issuing of bonds by the municipality are submitted to the qualified voters of the town or city, provision should be made in the submission for a separate vote upon each. That they cannot be lawfuly combined as a single question. In that case the purpose declared in the resolution and notice was "to determine the question whether said city will issue bonds in the aggregate sum of forty thousand dollars, * * * said sum to be expended as follows, to wit: for the purpose of establishing and maintaining a system of water works, twenty-five thousand dollars; for the purpose of establishing and maintaining a system of electric lights, ten thousand dollars; for the purpose of improving and extending the public school of said city and providing adequate accommodations for school patrons and children of said city, five thousand dollars."
Mr. Chief Justice Fish in delivering the opinion of the Court used this language, page 708: "There may be in a given community such a strong sentiment in favor of incurring a public debt for a particular purpose — for instance, as providing adequate and suitable accommodations for the public schools — that by combining a proposition of this popular character with one to create a public debt for a wholly different purpose, which would not, as an independent measure, commend itself to the unbiased judgment of the voters, the unpopular proposition may obtain the requisite number of votes to insure its adoption. On the other hand, the sentiment against the last-mentioned proposition might be so strong as to cause the voters to *145 defeat the one in favor of the public schools, although if standing alone it would have received their hearty support. To present both propositions in a single submission, thus rendering the success of the one dependent upon the success of the other, or the defeat of the one dependent upon the defeat of the other, is clearly unfair to the voters and not at all conducive to a free and untrammelled expression of public sentiment as to the merits of either. And when the number of separate and distinct questions to be combined and embraced in a single submission increased, there is a corresponding increase in the unfairness of the mode of submission and of the chances that no true expression of the will of the people can be obtained. Another evil which might result from holding such a practice to be lawful is that a popular and meritorious measure might be purposely foredoomed to defeat by making its success dependent upon the adoption of some other measure known to be obnoxious to the people."
Mr. Justice Stockton delivering the opinion of the Court in McMillan v. Lee County,
In Lewis v. Bourbon County,
The principle is thus announced in Tolson v. Police Jury,
In the note to Leavenworth v. Wilson,
The petitioners in their reply have attacked the constitutionality of the act of 1908, hereinbefore mentioned, but this question cannot be considered, for the following reasons: (1) Because the petition must be dismissed for the reason already stated. The rule is thus stated in Cool. Con. Lim., at page 163 (2d ed.), and quoted with approval in the case of Ex parte Florence School,
(2) Because Section 2009 of the Code of Laws provides that in the town of Gaffney the board of public works shall consist, ex officio, of the mayor, treasurer and clerk of the town council. This provision is still of force, unless repealed by the act of 1908. If that act is unconstitutional, *149 then the respondents are not the lawfully constituted board of public works of Gaffney and are, therefore, without power to perform the duties which the petitioners are seeking to require them to exercise. A party invoking the provisions of a statute is not in a position to raise the question as to its constitutionalty.
Port Royal Co. v. Hagood,
The next ground urged against the validity of the bonds is because the town council had no authority to provide that the bonds should be payable in gold. Section 2008 of the Code of Laws provides that such bonds may be made payable in any legal tender money of the United States.
As to the eighth ground of objection set out in the answer of the respondents, we deem it only necessary to state that it is plainly untenable.
It is the judgment of this Court that the petition be dismissed with costs.
MR. CHIEF JUSTICE JONES and MESSRS. JUSTICES WOODSand HYDRICK concur in the result upon the ground firstconsidered in this opinion.