Mitchell v. City of Gadsden

• Decision Date: 17 February 1906
• Citation: 145 Ala. 132,40 So. 350
• Parties: MITCHELL v. CITY OF GADSDEN ET AL.
• Court: Alabama Supreme Court

40 So. 350

145 Ala. 132

MITCHELL v. CITY OF GADSDEN ET AL.

Supreme Court of Alabama

February 17, 1906

Appeal from Chancery Court, Etowah County; W. W. Whiteside Chancellor.

"To be officially reported."

Suit by R. A. Mitchell against the city of Gadsden and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Dortch Martin & Allen and Hood & Murphree, for appellant.

Hubert T. Davis and Jas. A. Bilbro, for appellees.

TYSON J.

This was a bill filed by appellant, as a taxpayer and citizen, to enjoin the municipal authorities of Gadsden from issuing and selling bonds. The bill alleges that the act authorizing the election, under the authority of which it is proposed to issue the bonds, is violative of section 66 of the Constitution of 1901, in that the Senate Journal fails affirmatively to show the signing of House Bill No. 454, the act in question, by the President of the Senate, in the presence of the Senate. As the mandates of section 66 require the presiding officers of both houses to sign a bill in the presence of the house over which he presides, and that the bill be read at length before signing, unless the reading is dispensed with by the required vote, it becomes important to ascertain just what the Senate Journal shows with respect of House Bill No. 454. The Senate Journal (pages 481,482) shows a message from the House, stating that the Speaker had signed a number of bills, among them House Bill 454, and requests the signature of the President of the Senate. Page 483 shows a motion made by Mr. Norman to dispense with the reading of House Bill 454, a favorable vote on the motion by yeas and nays,--yeas, 24; nays, 0--together with the names of the senators voting yea. On the same page appears the following "Signing of bills. The president of the senate, in the presence of the Senate, immediately after they had been publicly read at length by the secretary, signed the above House Bills, the titles of which are set out in the foregoing message from the House, except House Bills Nos. 121, 101 465, and 454; the reading of which at length having been dispensed with." In the recent case of Uniontown v. State ex rel. Glass (Ala.) 39 So. 814, we held that when "the Journal of the Senate shows that the motion to dispense with the reading of the bill was passed by a vote taken by yeas and nays--yeas, 21, nays, 0--and shows the names of the senators voting, * * * it must be...