46 So. 639 | Ala. | 1908
Lead Opinion
The bill in this cause is filed by a taxpayer of the city of Tuscaloosa in an effort to prevent the issue of bonds of the city for the purpose of constructing or buying, or both, a waterworks system. Five objections to the validity of the issue are taken by the appellant (complainant) and these are stated in the able opinion of the court below to be: First, the election ordered by the defendant which submitted the question to a vote, was not ordered at a legal meeting of the mayor aqd aldermen of the city of Tuscaloosa, and the ordinance by which said election was ordered was void; second, said ordinance ordering the election is void, because it was not passed in accordance with section 235 of the Code of Ordinances of the city of Tuscaloosa governing the passage of ordinances; third, the ballot which was prepared and used for the election did not specify the nature of the bonds, as required by section 222 of the Constitution; fourth, the election upon the proposed bond issue is void, because the city of Tuscaloosa, as shown by the last federal census, did not have a population of 6,000 or more, and this issue would create an indebtedness in excess, in amount, of that allowed by section 225 of the Constitution of 1901. The objections will be considered in the order of their statement.
The statutory and constitutional provisions pertinent may be found in sections 222 and 225, art. 12, of the Constitution of 1901, and Acts 1903, p. 59 et seq. Section 1 of the act cited, in the respect here important, is
The second objection rests upon the failure of the council to observe the provisions of section 235 of the City Code. That section is: “No law or ordinance presented by any member of the board for adoption, amendment or repeal, at any meeting, shall be acted on until the next regular meeting: Provided, however, that the board may at any time suspend the rule by a unanimous consent of those present.” It is too evident, in the light of the generally understood difference between ordinances and resolutions, that the inhibition of the recited section has no application here, because the action taken by the council was by resolution, and not by “law or ordinance.” But under the head of this objection it is insisted that the action of the council in directing the election on the issue in hand should have been by ordinance and not by resolution. . Neither the Constitution nor the act of the Legislature (cited above) makes any provision for the method by which the governing body shall order the election on an issue of bonds. Certainly we cannot interpolate such a condition. It is doubtless well said, by many courts and text writers, that where permanent action is attempted to be taken by a municipal body an ordinance is the proper method. Laws pro
The question submitted by the action of the council to the voters of the city of Tuscaloosa was whether f125,000 of the described bonds thereof should be issued “for the purpose of purchasing or constructing (one or both) ah adequate system of waterworks. * * *” The ballot used in the election bore, on separate lines, with space for making the requisite X mark, the expressions: “For Waterworks Bond Issue,” and “Against Waterworks Bond Issue.” The third objection is grounded in the idea that the question submitted to the electorate was whether the bonds should issue for the purpose of constructing or buying, one or both, a water system for the city, and thus submitted a double proposition, the determination between which Avas left to the discretion of the council, whereas it should have been left to the voters. Manifestly this insistence is untenable. The constitution and related enactment cited before require the issue of the bonds to bear the approval of the majority concerned. What course will be pursued in the application of the proceeds of the bonds to the ownership of a water system by the city is a matter designed by the Constitution and the act in question to be in the control and discretion of the governing body. The provisions pertinent merely require that the governing body shall determine
The facts upon which the fourth objection is predicated are that the election was not held by the managers appointed by the council, but by those named by the mayor, whereas the act cited provides that the managers shall be appointed by the governing body. Aside from other grounds upon which the overruling of this objection might be rested, it is clear that the invalidity of this election cannot be pronounced where the officers holding the same were de facto, and no actual fraud or misdemeanor is imputed in the conduct or result of the election. 15 Cyc. p. 310 et seq., and notes; McCrary on Elections, §§ 247-252. In the latter citation a full discussion of the rule applied appears, embracing the opposing view, and setting forth the whole reasons which support, we think, the conclusion announced by us.
The last objection (fifth) involves a construction of
“Bee. 225. No city, town, or other municipal corporation having a population of less than six thousand, except as hereafter provided, shall become indebted in an amount including present indebtedness, exceeding five per centum of the assessed value of the property therein, except for the construction of or purchase of waterworks, gas or electric lighting plants, or sewerage, or for the improvement of streets, for which purpose an additional indebtedness not exceeding three per centum may be created: Provided, this limitation shall not affect any debt now authorized by. law to be created, nor any temporary loans to he paid within one year, made in anticipation of the collection of taxes, not exceeding one-fourth of the annual revenues of such city or town. All towns and cities having a population of six thousand or more, also Gadsden, Ensley, Decatur, and New Decatur, are hereby authorized to become indebted in an amount including present indebtedness, not exceeding seven per centum of the assessed valuation of the property therein, provided that there shall not be included in the limitation of the indebtedness of such last de
The wisdom of the limitations upon indebtedness by municipalities set down in the section is too apparent to be the object of even a disposition to discover any construction in qualification of its plain mandate in respect of the subject in hand. But it is equally our duty to refrain from interpolations that would alter the section. The section in hand predicates the limitation of indebtedness upon “population.” That is the condition, the fact npon which the limitation operates. The complainant’s insistence, in legal effect, leads to the proposition —to the construction — that the ascertainment of the condition (population) must be by the last federal census. The most casual reading of the section of the organic lav' demonstrates that the instrument is wholly silent as to the means for the ascertainment of the population of the city or town; and a census, official though it is, is but a means for the ascertainment of the number
A conclusive reason, however, in support of the view expressed, is found in the fact that in other places in the instrument the decennial' federal census is provided as the means for the ascertainment of the population for the purpose of apportionment of representation in the legislative branch of the government. Prom this it is evident that, in omitting mention of such census in the section under consideration, a clear intent is manifested to leave the ascertainment, upon occasion, of the population to means properly serviceable to that end. Independent, of course, of the peculiar phrasing and structure appearing in our organic law, but-treating analogous questions, the courts of Lousiana, in McFarlain v. Jennings, 106 La. 541, 81 South. 62, of Washington, in Anderson v. Whatcom County, 15 Wash. 47, 45 Pac. 665, 33 L. R. A. 137, of Nebraska, in State v. Davis, 66 Neb. 333, 92 N. W. 740, and of Kentuckey, in Lancaster v. Owensboro, 72 S. W. 731, 24 Ky. Law Rep. 1978, announce conclusions authoritative on this appeal. The
To what extent the legislation may be constitutionally enacted toward the evidential ascertainment of population in such cases we do not decide. The objections stated being untenable, the judgment is affirmed.
Affirmed.
Concurrence Opinion
concurs in the conclusions reached as to all the objections save the fifth, as to which he entertains the opinion that the last decennial federal census is the criterion for the finding vel non of the condition (population) upon which the limitation is based, in the absence of state legislation authorizing the taking of a census.