Coleman v. Town of Eutaw

• Decision Date: 12 November 1908
• Citation: 47 So. 703,157 Ala. 327
• Parties: COLEMAN ET AL. v. TOWN OF EUTAW ET AL. TOWN OF EUTAW ET AL. v. COLEMAN ET AL.
• Court: Alabama Supreme Court

47 So. 703

157 Ala. 327

COLEMAN ET AL. v. TOWN OF EUTAW ET AL.

TOWN OF EUTAW ET AL. v. COLEMAN ET AL.

Supreme Court of Alabama

November 12, 1908

Appeal from Chancery Court, Greene County; Thomas H. Smith Chancellor.

Bill by Thomas W. Coleman and others against the Town of Eutaw and others. A demurrer to the bill was sustained, from which complainants appeal, and defendants prosecute a cross-appeal. Affirmed on cross-appeal, and reversed on complainants' appeal, and decree entered overruling demurrer, and cause remanded.

S. D. &amp J. B. Weakley, for appellants.

Harwood & McKinley and Cabaniss & Bowie, for appellees.

McCLELLAN J.

The bill in this cause was filed by Thomas W. Coleman and four other taxpayers and residents of Eutaw, in this state, for the purpose of enjoining issues of bonds of the municipality of the town of Eutaw as upon a compliance with the provisions of section 222 of the Constitution of 1901, and the act of the Legislature to be found in Acts 1903, p. 59 et seq. authorizing the issuance of bonds by municipalities under certain restrictions and by certain methods therein provided. A cross-appeal, by the respondents to the bill, brings up for review the questions to be considered and decided.

It is first insisted by the cross-appellants that since by section 7 of the act before mentioned provision is undertaken to be made for the contest of an election held thereunder through the process formulated for the contest of elections of justices of the peace, and since by section 1671 of the Code (1896) our courts of equity are forbidden jurisdiction of election contests, this bill is without equity. This objection is untenable, for the reason that the attempted assimulation of the method for contesting elections of officers is entirely inappropriate. Beason v. Shaw, 148 Ala. 544, 42 So. 611. An additional, and perhaps stronger, reason is here present in the fact that the primary object and equity of the bill is to prevent the misuse of corporate power--the illegal creation of a debt against the municipality. True, the ascertainment vel non of this action may, and here does, involve the validity of an election; but the greater objective of the bill necessarily obscures the asserted equity denying jurisdiction of an inquiry into the validity of an election. That this conclusion is sound is demonstrated, we think, when it is considered that every condition precedent to the valid issue of such bonds may have been met including a perfectly valid election, yet, if that issue of bonds would result in creating a debt in excess of the constitutional limitation for that municipality, that issue of bonds would be void, valueless. The invalidating circumstance could not inhere in the election, but in the corporate power to so engage in excess of the limitation. Authorities are abundant for the exercise in equity of injunctive relief in such cases. Crampton v. Zabriskie, 101 U.S. 601, 609, 25 L.Ed. 1070; Simonton on Munic. Bonds, §§ 156, 158, 159; Harris on Munic. Bonds, pp. 281, 282. This disposes of the preliminary question.

Three sets of bonds were proposed to be issued by the town of Eutaw, viz., one for the purpose of constructing streets, one for the purpose of purchasing or constructing a public school building, and one for the purpose of purchasing waterworks and electric light plant. Separate ordinances, looking to the issue of each set of bonds, were adopted by the governing body; and the voters, in varying majorities, approved the mentioned issues, three separate ballots being respectively employed as the medium of expression of the popular will. The first ground of asserted invalidity of the bonds, if allowed to issue, is that the ballot, in each case, was not in the form prescribed by the Constitution. The act before cited, in respect of the ballot, is a copy of the Constitution. These ballots, respectively, contained, besides a caption announcing the general purpose of the election, on two separate lines, with marginal extension on either side of each line, the words "For bond issue," and "Against bond issue." Below this, in parenthesis, there was printed on each set of ballots, corresponding to the respective sets of bonds proposed to be issued, a statement describing the bonds, including the amount, rate of interest, time to run, denomination of each bond, and the purpose of the issue. Section 222 of the Constitution, as presently important, is as follows: "The Legislature, after the ratification of this Constitution, shall have authority to pass general laws authorizing the counties, cities, towns, villages, districts or other political subdivisions of counties to issue bonds; (a) but no bonds shall be issued under authority of a general law unless such issue of bonds be first authorized by a majority vote by ballot of the qualified voters of such county city, town, village, district, or other political subdivision of a county, voting upon such proposition. The ballot used at such election shall contain the words: 'For ...... bond issue,' and 'Against ...... bond issue' (the character of the bond to be shown in the blank space), and the voter shall indicate his choice by placing a cross mark before or after the one or the other."

The point raised and urged for appellants is that the ballot was abortive, because of the failure to insert the character of the bond in the blank space between the words "For" and "bond issue," and between the words "Against" and "bond issue." Crossappellants assert an answer to this insistence to be, viz.: First, that in the preparation or form of the ballot the quoted constitutional provision is directory merely, not mandatory, and hence, in the absence of express pronouncement to the contrary, nonobservance is an irregularity at most; second, that, if mandatory, a substantial compliance was had by the printing of the mentioned description of the bond on the face of the ballot. The fact that mere place on the ballot of the character of the bond is the gist of the suggested invalidity of the proposed issues has necessarily quickened our sense of assurance to correctness before finally attaining a conclusion in the premises. At first blush the objection seemed to be only a sticking in the bark--hypercritical at best. Yet, when we consider that a constitutional, not a statutory, provision is involved, that conditions precedent are being dealt with, and that the intention of the Constitution makers, not our ideas of what may seem trivial or our notions of what might appear unnecessary particularly, is the pith of the inquiry, we cannot avoid the conviction that the provision in question is mandatory, and that a failure to observe its mandate in the form of the ballot--a failure made when the character of the issue is not shown between the words indicated in the section quoted--is fatal to the valid issue of the bonds of a municipality.

First. Is the provision with reference to the form mandatory or directory? A determination of this inquiry without giving due weight to the general and long-maintained attitude of this court, and never yet, so far as we are now advised, altered to any degree, with respect to the imperativeness of constitutional provisions generally, would be the omission of what appears to us a vitally important consideration. The first of our decisions to indicate the general attitude of this court is Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9. The question decided involved the constitutionality vel non of an act revising or amending a previous enactment, and the clause of the Constitution pertinent was that requiring the revised or amended law or section to be set out at length. The point was taken that this requirement was directory--merely prescribing a rule of legislative procedure that to violate would not avoid the enactment. The court held the requirement to be mandatory. Chief Justice Walker, speaking for the court, said: "The decision in Ohio ( Lehman v. McBride, 15 Ohio St. 573) is examined in People v. Lawrence, 36 Barb. (N. Y.) 177, and we entirely concur with the opinion in that case that it is not allowable to set aside the obligation of a constitutional provision as directory. There are, it must be conceded, regulations in the Constitution which are merely parliamentary rules, a want of conformity to which would not make a law void. People v. Board of Supervisors, 27 Barb. (N. Y.) 575." We will later refer to both the cases cited from Barbour's Reports. In Weaver v. Lapsley, 43 Ala. 224, the Olmstead Case is approved, in reasoning and conclusion, and followed. In Ex parte State, 52 Ala. 231, 23 Am. Rep. 567, the inquiry was whether the constitutional provision, viz., "that suits may be brought against the state in such courts as may by law be provided," was mandatory or directory; and it was ruled that the provision conferred a discretionary power, and was not a mandate--a conclusion largely influenced by a comparison of the provision of the then organic law with that of stronger, more imperative, nature employed in the Constitution of 1819.

In Perry County v. Railroad Company, 58 Ala. 556 treating the general subject with which we are concerned, it is said: "We adopt as our own the language of one of the soundest and most thorough thinkers and jurists who have written on the subject of organic law embodied in our Constitutions: 'The courts tread upon dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a Constitution. Constitutions do not usually undertake to prescribe mere rules or proceeding, except when such rules are looked upon as essential to the things to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is...