163 So. 332 | Ala. | 1935
Lead Opinion
The question presented on this appeal was embraced in the opinion in In re Opinion of the Justices,
We have re-examined the question in the light of the argument here presented. And we may add that some of the authorities now stressed upon our attention had been previously examined and duly considered in consultation, but no occasion has arisen for their discussion or differentiation. In large part they may be found noted in 72 A.L.R. 698, and the numerous authorities representing conflicting views are found noted in the more recent case of State v. City of Miami,
Affirmed.
ANDERSON, C. J., and BOULDIN, BROWN, and FOSTER, JJ., concur.
GARDNER and THOMAS, JJ., dissent.
KNIGHT, J., not sitting.
Dissenting Opinion
I am persuaded the revenue from the waterworks operated by the town of Opp may properly be pledged for the advancement *691 sought without infringement upon any constitutional provision. These revenues differ from those obtained by the municipality in its governmental capacity, such as licenses and taxes. They are but returns from a purely corporate undertaking owned and managed by the municipality for the benefit of its inhabitants. It has many attributes of a private business enterprise. Funds are sought for the enlargement and improvement of the plant. Clearly the town could turn back into the system the present revenues for its improvement, and I have become convinced it may properly pledge the anticipated revenues as well.
The following language from the Florida Supreme Court in the recent case of State v. City of Miami,
"So long, therefore, as such financing is limited to the borrowing of money solely on the security of anticipated utility revenues, when the object of the borrowing and the contemplated purpose or intended use of the borrowed funds is confined strictly to a reinvestment of the same in the existing plant through which such funds have been earned, in order to make it more efficient or economical in operation, or to enlarge its usefulness to the municipality, the borrowing is not prohibited by the Constitution.
"We reach this conclusion by looking at the substance rather than the form of such financing, for it amounts to nothing more than a conversion of the prospective earnings into a capital investment, whether the earnings are presently funded or not."
I realize that upon this question there has been sharp conflict of authority. But I am persuaded the more recent cases, and those better reasoned, support the view here expressed. See note to Bankhead v. Town of Sulligent,
THOMAS, J., concurs in the foregoing views. *692