Doody v. State ex rel. Mobile County

• Decision Date: 21 December 1936
• Docket Number: 1 Div. 948
• Citation: 233 Ala. 287,171 So. 504
• Parties: DOODY v. STATE ex rel. MOBILE COUNTY.
• Court: Alabama Supreme Court

171 So. 504

233 Ala. 287

DOODY v. STATE ex rel. MOBILE COUNTY.

1 Div. 948

Supreme Court of Alabama

December 21, 1936

Appeal from Circuit Court Mobile County; J. Blocker Thornton, Judge.

Petition of the State of Alabama, on the relation of Mobile County for mandamus to E.C. Doody, as Clerk of the Board of Revenue and Road Commissioners of Mobile County, commanding him to sign bonds of Mobile County issued pursuant to resolution by the Board of Revenue and Road Commissioners. From a judgment awarding the writ, respondent appeals.

Affirmed.

That sale of bonds issued under local act authorizing Mobile county to issue bonds at par with 1 per cent. deduction for expenses, would make sale at 99 cents on the dollar, held not to invalidate bonds, since municipal bond code, to which issue was subject authorized as much as 5 per cent. deduction for such expenses. Gen.Acts 1935, p. 579; Loc.Acts 1936 Ex.Sess., p. 58; Const.Amend. 29, adopted Dec. 17, 1935 (see Gen.Acts 1935, p. 810).

Respondent by answer asserted that the bonds in question are illegal and void for the following reasons:

"a. Because the indebtedness proposed to be funded with said bonds is illegal and because there are insufficient unpaid valid and enforceable claims against Mobile County or unpaid claims that would be valid and enforceable against Mobile County except for the constitutional debt limit to support such funding bonds and therefore there are insufficient claims liable to payment from the proceeds of said bond issue to support such issue.

"b. Because the bonds may not be sold and the proceeds placed in escrow for the payment of claims authorized to be retired unless there is a simultaneous payment and cancellation of all outstanding claims, and the petition does not aver that said claims will be paid simultaneously with the issuance of said bonds and because said resolution authorizing said bonds does not contemplate simultaneous cancellation of claims being funded upon issuance of said bonds.

"c. Because the proceeds of said bonds, if sold, might be applied to an illegal use.

"d. Because said bonds were sold at less than par.

"e. Because the enabling act for the issuance of said bonds is invalid because it is a local act.

"f. Because the local act under which these bonds were issued is invalid because of failure to advertise same in advance of its passage for the period required by the constitution.

"g. Because the bill providing for a constitutional amendment under which said bonds are issued is invalid in that it was passed by both houses of the legislature and signed by the respective presiding officers thereof and reached the governor who, at the request of the legislature, returned said bill to the legislature where the signatures of such presiding officers were erased and the bill then further amended.

"h. Because said bonds are attempted to be made general obligations of the county under section 5 of the enabling act and said section does not authorize them to be made such obligations.

"i. Because the resolution authorizing issuance of said bonds fails to provide for the retirement of a like amount of outstanding indebtedness simultaneously with the issuance of the bonds which makes the bonds subject to the provisions of the Constitution relative to the incurring of indebtedness.

"j. Because the $150,000.00 of school bonds which are being refunded were not issued for county buildings within the meaning of section 215 of the Constitution.

"k. Because said bonds were sold at private sale as general obligations of Mobile County within thirty days after failure to secure a bid at advertised sale and said bonds vary in some details from the proposed bonds as advertised.

"l. Because the proclamation of the governor calling an election to be held on the proposed constitutional amendment under which the said bonds are issued was not published once a week for four consecutive weeks in Walker County, Alabama, as required by law." p>Page V.R. Jansen, of Mobile, for appellant.

George A. Sossaman, of Mobile, for appellee.

Stevens, McCorvey, McLeod, Goode & Turner, of Mobile, amici curiae.

GARDNER Justice.

The governing body of Mobile county contracted for the sale of funding bonds in the amount of $1,200,000.00, and $150,000.00 refunding bonds, pursuant to the authority granted by the constitutional Amendment (29) adopted December 17, 1935 (1936 Cumulative Supplement to Michie's Alabama Code of 1928, p. 18; Gen.Acts 1935, p. 810), and the local enabling act, approved April 10, 1936 (Local Acts, Extra Sess.1936, p. 58), and the validity of this bond issue is assailed in this proceeding.

It is argued that both the said constitutional amendment and the local enabling act are invalid, and we turn first to a consideration of this insistence.

As to the amendment, the attack is twofold. The first relates to the manner of its passage by the Legislature. It was in the form of an act, and after its due passage by the House and Senate, with the required three-fifths majority (section 284, Constitution; Jones v. McDade, 200 Ala. 230, 75 So. 988; Johnson v. Craft, 205 Ala. 386, 87 So. 375), the bill found its way into the hands of the Governor, who, in the form of a letter addressed to the House--in which the act originated--recognized that he had no authority to suggest an amendment, but ventured to suggest a change in its terms to the end that it may be consistent with itself. By resolution, duly adopted by both Houses (Nos. 450 and 460) the bill was recalled and the signatures of the Speaker of the House and President of the Senate were erased; and that the act was subsequently duly passed with the suggested amendment, is not here questioned. The argument is to the effect that the Legislature lost control of the act after its first passage, and was without authority to order its recall and repassage to meet the suggestions of the Governor.

But we think this is too narrow a view of the legislative authority over its own procedure. The Legislature was still in session. The Governor had no authority over such a proposed amendment (section 287, Constitution; Jones v. McDade, supra; Johnson v. Craft, supra) a fact fully recognized by him in his letter to the House, but merely offered a suggested change for consideration, which he thought might prove beneficial and make the act more consistent. The proper custodian of the proposed amendment was the secretary of state (section 134, Constitution; section 778 et seq., Code 1923), and before it reached that office, and while the Legislature was in session, it had authority to order its recall for further consideration and final passage. In section 53 of our Constitution is the provision that "each house shall have power to determine the rules of its proceedings *** and the two houses shall have all the powers necessary for the legislature of a free state." As a deliberative body the Legislature had the right of reconsideration of the bill before it reached its final custodian, and while still in continuing session. 46 Corpus Juris 1383; Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann.Cas.1914B, 916; Jones v. McDade and Johnson v. Craft, supra.

We have not before us any question concerning a result if the proposed amendment had in fact reached the office of the secretary of state, and that matter is therefore left undetermined.

The bill then reached the office of secretary of state, and the Governor issued the proclamation of notice of the election as provided by section 284 of the Constitution. This proclamation was duly advertised in every county in the state; save one--Walker county, and this failure of advertisement in the county of Walker is the basis for the remaining attack on the amendment.

Our cases recognize the mandatory character of constitutional provisions as to amending the fundamental law (Jones v McDade, supra; Johnson v. Craft, supra), but as to legislative details the rule has been adopted that if the constitutional requirements are met "in substance and legal effect" it will suffice. "To hold otherwise," observed the court in Realty Investment Co. v. City of Mobile, 181 Ala. 184, 61 So. 248, 249, "would subordinate substance to form, the end to the means, and this, we think, the framers of the Constitution did not intend." There may be "a substance in form even" as held in the more recent cases of Tommie v. City of Gadsden, 229 Ala. 521, 158 So. 763, and Salter v. City of Anniston, 220 Ala. 199, 124 So. 663. And if we look to substance in the instant case, no difficulty is encountered, for it appears undisputedly that the proposed amendment was adopted by the voters of the state by a majority considerably in excess of the total vote of Walker county. Thus the purpose of the publication was...