Realty Inv. Co. v. City of Mobile

• Decision Date: 04 February 1913
• Citation: 181 Ala. 184,61 So. 248
• Parties: REALTY INV. CO. v. CITY OF MOBILE.
• Court: Alabama Supreme Court

61 So. 248

181 Ala. 184

REALTY INV. CO. v. CITY OF MOBILE.

Supreme Court of Alabama

February 4, 1913

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

Suit by the Realty Investment Company against the City of Mobile. From a decree for defendant, complainant appeals. Affirmed.

Anderson and McClellan, JJ., dissenting.

Foster K. Hale, Jr., of Mobile, for appellant.

B.B Boone, of Mobile, for appellee.

SAYRE J.

Section 222 of the Constitution contains this provision: "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, 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."

In this case the question whether there should be an issue of bonds was submitted to the people on a ballot in the following form:

Official Ballot

Of the Election to be Held September 2nd, 1912, to Submit to the Qualified Electors of the City of Mobile, Whether or Not the City of Mobile should issue $100,000 in Bonds to Extend Its Sanitary Sewer System in Said City.

Proposed bond issue of

$100,000 bonds of city of

Mobile to be sold for the

[ ]For purpose of extending its

sanitary sewer system,

said bonds to bear interest

at five per centum per annum,

payable semi-annually,

[] Against to mature thirty years from

their date and to be payable

at the American Exchange

National Bank in the city

of New York, N.Y.

The proposition of this appeal is that the result of the ensuing election was void for that the official ballot failed to follow the form prescribed by the Constitution. That it did not follow that form with utmost exactness must be conceded. Whether it followed that form substantially, and whether a substantial pursuit of the constitutional form will satisfy all the purposes had in view when the Constitution was framed, or whether, on the other hand, the form must be followed with literal exactness, are the questions presented for decision.

We would not be understood as doubting that the presence in the Constitution of the provision for the form of the ballot to be used in such cases--so far as it is a form--is evidence enough of the fact that the framers of the instrument and the people in adopting it have regarded the provision as of high importance, and that a faithful observance of every essential of the rule prescribed is made mandatory alike upon the courts and officers of election. The right and power of the framers of the Constitution to judge for themselves, and without the supervision of the courts, just what precautions as to form were necessary to secure the essential thing desired, and the duty of the courts to obey, are beyond question. The provision is mandatory, therefore, in that it is not left optional with the officer preparing the ballot whether he will obey or not, nor is it permitted to the court to condone disobedience. Nevertheless, a form is a form whether prescribed by statute or by Constitution--it deals with the external shape and structure of things rather than their substance--and, except in cases where there is a lack of legislative power or a conflict between legislative effort and constitutional provision, it is as much the duty of the courts to obey the former as the latter. But there is a substance of forms even; that is, the law may require a substantial, as distinguished from a literal, pursuit of form. "It is to be known," says Lord Coke, "that there are two manner of forms, sc., forma verbalis and forma legalis. Forma verbalis stands upon the letters and syllables of the act; forma legalis is forma essentialis, and stands upon the substance of the thing to be done, and the sense of the statute." Beawfage's Case, 10 Co. 100; Smith v. Allen, 1 N.J.Eq. 43, 21 Am.Dec. 33. Constitutions usually deal with larger topics and are couched in broader phrase than legislative acts; hence their just interpretation is not always reached by the application of similar methods. Houseman v. Commonwealth, 100 Pa. 222, 232. "A Constitution is not to receive a technical construction, like a common-law instrument, or statute." Dorman v. State, 34 Ala. 216, 235. Here the Constitution has descended to legislative detail, it may be said; but, if this provision for a form were found in a statute, it would be held that a literal compliance should not be exacted. Scott v. Simons, 70 Ala. 352, in which case the court was dealing with the imperative language of the original act of 1873 fixing a form for the separate acknowledgment of a wife in a conveyance of the homestead. As afterwards codified, the language of the act was made to conform to that of the decision. The application of this principle of substantial conformity to statutory regulations of the manner of holding elections is common. Payne on Elections, § 498. And in State v. Nicholson, 102 N.C. 465, 9 S.E. 545, 11 Am.St.Rep. 767, it was applied in a case where the oath administered for registration to a large number of voters omitted words which were prescribed in the imperative language of a constitutional provision; the court saying: "In substance and legal effect the constitutional requirement is fully met in the oath as taken." And so, while the provision under consideration is mandatory in the sense that it places a duty upon officers charged with the preparation of the ballot in respect to its form which they will not be permitted to deny or evade, yet we think the purpose and requirement of the Constitution will be satisfied with a substantial compliance. To hold otherwise would subordinate substance to form, the end to the means, and this, we think, the framers of the Constitution did not intend.

The substance of the constitutional mandate is that the ballot shall contain both an affirmative and a negative statement of the proposition for an issue of bonds, and that a statement of the character of the bonds shall be embodied in each alternative. It was left to the Legislature to provide regulations for elections generally which would secure a free and fair exercise of the elective franchise. In the matter of elections for bond issues the more definite purpose of this isolated provision seems to have been to provide security for intelligence of choice and its easy expression. These constitute the substance of things for the security of which the form was provided. In our opinion those purposes were duly safeguarded and the form provided by the Constitution substantially followed in the ballot in the instant case. It was so arranged as to set forth very clearly the issue in two forms, viz., "For proposed bond issue of $100,000 bonds of the city of Mobile to be sold for the purpose of extending its sanitary sewer system," etc., and, "Against proposed bond issue of $100,000 bonds of the city of Mobile to be sold for the purpose of extending its sanitary system," etc. The use of the printer's brace was such as to make one statement of the character of the bonds serve for both the affirmative and the negative of the question submitted to the voter, whereas an exacting pursuit of the constitutional form would have required that the statement be literally repeated. To the eye and the understanding, however, the statement as to the character of the bonds is made, first in connection with "For," and is then repeated in connection with "Against." In our judgment there was in the preparation of the ballot a substantial compliance with the form provided by the Constitution, and the result of the election should not be overturned.

It may be said that our conclusion cannot be reconciled with that reached in the case of Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703. We concede that expressions are to be found in the course of the argument of the opinion in that case which, if followed to their logical conclusion, would lead to a result different from that we have indicated as proper in this. But the learned chancellor who tried both that case and this was of the opinion that the ballots used on the two occasions were materially different, and that the opinion of this court in that case, when read in the light of the facts there shown, did not conclude the case at bar. In that opinion of the chancellor we agree. In that case the statement of the character of the bonds voted upon was not embodied in a sentence with the words "For bond issue" and "Against bond issue," but was made separately and at a different place on the ballot. We do not doubt that that case was properly decided on its facts. As for expressions used or opinions stated arguendo, they are not within the principle of stare decisis, and we do not feel that we are necessarily bound to follow or to overrule them. The authority of adjudged cases is confined to the points actually decided, and the true principles of the decision. "In every court, if a case varies from the facts and circumstances of preceding authorities, the judge is at liberty to found a new decision on these circumstances" (Lord Eldon, 8 Dow. 112), and it has never been asserted that everything said in the argument of legal questions is to be regarded with the deference due alone to the true principles on which the decision should rest (...