E. B. & A. C. Whiting Co. v. City of Burlington
| Decision Date | 02 October 1934 |
| Citation | 175 A. 35 |
| Court | Vermont Supreme Court |
| Parties | E. B. & A. C. WHITING CO. et al. v. CITY OF BURLINGTON. |
[Copyrighted material omitted.]
Appeal in Chancery; Deane C. Davis, Chancellor.
Bill by the E. B. & A. C. Whiting Company and others against the City of Burlington. From a decree sustaining defendant's demurrer to the bill, dissolving the temporary injunction and dismissing the bill, plaintiffs appeal.
Decree reversed, and cause remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
Chas. H. Darling and H. B. Shaw, both of Burlington, for appellants.
Theodore E. Hopkins, of Burlington, for appellee.
At a special meeting of the legal voters of the city of Burlington, hereafter called the city, held on January 3, 1934, the city was authorized, by a majority of the votes cast, to issue bonds to an amount not to exceed $178,000, for the purpose of making certain public improvements.
The plaintiffs, who are large taxpayers in the city, brought this bill of complaint against the city, praying for an injunction restraining it from issuing the bonds voted at the special meeting on the grounds that the meeting was illegally called, and that two-thirds of all the voters voting at such meeting did not vote to authorize such public improvements and the issuance of the bonds to pay for them. A temporary injunction was issued. The defendant demurred to the bill; and, on hearing on the demurrer, the demurrer was sustained, the temporary injunction dissolved, and the bill dismissed. The plaintiffs appealed.
The plaintiffs allege in their bill that 2,453 legal voters voted at the special meeting; that 1,225 voted in favor of the proposal to bond the city, and 1, 198 voted against the proposal. It is also alleged that the special meeting was illegally called, and that the vote taken at the meeting was null, void, and without effect for that reason.
The plaintiffs allege further that the charter of the city is silent as to whether the vote of the legal voters at a special meeting held on January 3, 1934, should be by a majority vote or a two-thirds vote; that section 342 of the charter provides that all powers not expressed in the charter shall be governed by the statutes of this state; that the statutes of this state (Pub. Laws, c. 150) provide that there shall be a two-thirds vote of all the voters voting at such meeting to authorize the city to issue bonds; that the vote at such meeting was not decided by a two-thirds vote, and was therefore null and void.
Prior to 1917, the statutory provisions, other than charter provisions, regulating the issuance of bonds and other moneyed obligations by municipal corporations, were contained in chapter 157 of the Public Statutes of 1906, Act No. 84 of the Laws of 1908, and Act No. 126 of the Laws of 1912.
Act No. 105 of the Laws of 1917 was an act entitled: "An act regulating the issuance of municipal bonds." It was the first general, comprehensive legislation on the subject, and it provided in detail the procedure for the voting on and the issuance of bonds by municipal corporations to pay for public improvements, and it expressly repealed chapter 157 of the Public Statutes and the acts of 1908 and 1912. That act became chapter 176 of the General Laws of 1917. Several sections of chapter 176 of the General Laws were amended by subsequent acts and, as so amended, and with slight editorial changes, which are immaterial, that chapter became chapter 150 (sections 3603-3632) of the Public Laws of 1933. All of our general statutory provisions regulating the issuance of bonds by municipal corporations, in force at the time of the special meeting, are found in chapter 150 of the Public Laws, and, for convenience, we refer to the sections of that chapter.
Section 3603 provides: "The term 'municipal corporation' as used in this chapter shall include a city, town, village (and) town school district. * * *" Subdivision 1 of section 3604 provides: "The term 'legislative branch' of a municipal corporation as used in this chapter shall mean the mayor and board of aldermen of a city. * * *" Section 3605 provides that, when the legislative branch of a municipal corporation at a regular or special meeting called for that purpose shall by resolution passed by a two-thirds vote of all its members determine that the public interest or necessity demands improvements, and that the cost of the same will be too great to be paid out of the ordinary annual income and revenue, it may at any subsequent meeting of such legislative branch called for that purpose, by a two-thirds vote of all its members, order the submission of the proposition of making such public improvements, and of incurring a bonded debt to pay for the same to the qualified voters of such municipal corporation at a meeting to be held for that purpose.
The first part of section 3606 provides how the meeting shall be called. The last sentence of this section reads as follows: "When two-thirds of all the voters voting at such meeting vote to authorize such public improvements and the issuance of bonds to pay for the same, the legislative branch shall be authorized to make such public improvements and to issue bonds as hereinafter provided." (The italics are ours.) There are other provisions of the chapter which relate to the issuance and sale of the bonds and other details when a public improvement has been voted in the method provided by sections 3605 and 3606, which are not material here.
Section 3631 provides: "This chapter shall not affect rights allowed a municipal corporation by its charter provisions, nor any rights granted by a special act of the legislature." The language of section 4103 of chapter 176 of the General Laws is the same as that of P. L. 3631. Section 29 of No. 105 of the Laws of 1917 reads: "This act shall not affect rights now allowed any municipal corporation by its charter provisions, nor any rights now or hereafter granted by special act of the legislature." (The italics are ours.) In the revision of 1917 the words in italics were omitted as unnecessary.
Act No. 242 of the Laws of 1908 is the charter of the city. The act has been amended, but it is necessary to call attention to such amendments only as are material here. Section 25 of the charter, as amended by section 17 of Act No. 163 of the Laws of 1927, provides: "Special meetings of all the legal voters of said city, shall be called by the mayor upon request by resolution of the board of aldermen or on the petition of thirty legal voters for any legal purpose beyond the jurisdiction of the city council, said purpose to be set forth in the warning for said meeting. * * *" Section 36 of the charter provides that "the mayor and board of aldermen in their joint capacity shall be called the city council."
It appears from an examination of the Session Laws that there were general revisions of the charter of the city by the Legislature at the sessions of 1896 (No. 118), 1906 (No. 261) and 1908 (No. 242); that section 63 of the present charter is the same as section 69 of the revision of 1896 and section 63 of the revision of 1906, except for certain changes which are not material here.
Section 63 reads as follows: "Whenever the legal voters of said city shall give authority to the city council thereof to pledge the credit of said city for any purpose, said city shall have power and authority to issue its negotiable orders, warrants, notes or bonds, and to prescribe whether such bonds shall be registered or have interest coupons attached, to the amount, not to exceed the limit prescribed by law, for which the legal voters aforesaid shall have given authority to so pledge the credit of said city, such notes or bonds to be payable at such time and at such a rate of interest as shall be established by said voters; or if no time or rate of interest is fixed thereby, the same shall be established by resolution of said city council."
By Act No. 11 of the Special Session of 1933, hereafter called Act No. 11, the city was authorized to bond, to an amount not to exceed $400,000, "for the purpose of raising funds with which to pay that portion of the cost and expense of any public improvements which said city must bear, to obtain from the United States government under any present acts of the Congress of the United States, the aid and benefit afforded to municipalities by such acts in making such improvements. * * *" Except for stating the purpose for which the credit of the city is to be pledged, and limiting the amount to $400,000, this act, until the last sentence is reached, repeats the language of section 63 of the charter. The last sentence reads as follows: "The power and authority hereby granted to said city shall be its exclusive power and authority to issue its negotiable orders, warrants, notes or bonds for said purpose, and is in addition to and shall not increase or diminish the power and authority granted to said city by section 63 of No, 242 of the Acts of 1908, as amended, to issue its negotiable orders, warrants, notes or bonds for any purpose other than the one herein specified." (The italics are ours.) This act was approved July 19, 1933, and it took effect from its passage.
The city seems to have some doubt as to whether the bonds in question were voted under the provisions of section 63 of the charter or under the provisions of Act No. 11, as it seeks to uphold the vote of the special meeting under section 63 and Act No. 11 separately, and also under section 63 and Act No. 11 together. However, any doubt that may exist is resolved by Act No. 11 itself, as the last sentence of the act expressly provides that the power and authority granted to the city by its provisions shall be the exclusive power and authority of the city to issue bonds for the purpose therein mentioned.
Of course, in passing upon the questions before us, we must consider the provisions of the...
To continue reading
Request your trial