Stokes v. City of Montgomery

• Decision Date: 27 June 1919
• Docket Number: 3 Div. 414
• Citation: 82 So. 663,203 Ala. 307
• Parties: STOKES v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

82 So. 663

203 Ala. 307

STOKES v. CITY OF MONTGOMERY.

3 Div. 414

Supreme Court of Alabama

June 27, 1919

Appeal from Circuit Court, Montgomery County; W.L. Martin, Judge.

Bill by M.C. Stokes against the City of Montgomery. Decree for defendant, and plaintiff appeals. Affirmed.

Ball &amp Beckwith, of Montgomery, for appellant.

G.F Mertins and Steiner, Crum & Weil, all of Montgomery, for appellee.

THOMAS J.

The bill was filed to prevent the issue and sale of bonds of the city of Montgomery in the sum of $50,000 for the purpose of building and equipping a city hospital. The bill prayed that the city be made party defendant; that it and its officials be permanently enjoined and restrained "from taking any further steps toward issuing and selling said bonds under the authority now claimed by them, and that their successors, in their respective official positions, may likewise be perpetually enjoined from doing so." The question for decision is presented by the sustaining of the city's demurrer holding the bill without equity.

Under the law having application in 1908 the city of Montgomery was governed by a mayor and city council, composed of aldermen duly selected from its several wards and from the city at large. Under legislative authority providing for the establishment and maintenance of a city hospital, on September 21, 1908--

"at a meeting of the city council of said city of Montgomery, duly called, and for which due notice was given and at which there was a quorum present, which meeting was regularly organized and in all respects legally authorized to transact the business of said city, an ordinance was duly and legally adopted to order and provide for an election to be held in said city on December 14, 1908, to enable the qualified voters of said city to decide whether additional bonds of said city should be issued, including, with others $50,000 of bonds for the purpose of building and equipping a city hospital, and said ordinance, which was duly approved by the mayor of said city, ordered that such election be held on Monday, December 14, 1908, for the purposes aforesaid; that said ordinance further ordered that notice of said election be given for 30 days by publication in the Montgomery Times, a newspaper then published in said city, once a week for three consecutive weeks, stating the purpose, time, and place of said election, the amount of the proposed bond issue, the rate of interest, length of time said bonds should run, and purposes for which they should be used; that said ordinance further provided the form and substance of the ballot to be used at such election and the mode of indicating the voter's choice thereon, and made all other provisions required by law for the purpose of holding said election, of making returns and canvassing and announcing the result thereof and defining the denominations, date of issue, rate of interest, the maturity of said bonds, and that they should not be sold for less than their face value, fixing the place of payment."

On October 5, 1908, another meeting of the city council of said city, at which a quorum was present qualified to do business, was held, at which the committee on finance reported favorably upon the ordinance to hold the election for the purpose of voting on said bonds as hereinabove stated, and at said meeting said ordinance was duly and legally adopted and spread upon the minutes of the meeting, and duly approved by the major of said city and published as required by law. And on October 20, 1908, said ordinance providing for said election, as adopted on October 5, 1908, and approved October 9, 1908, was duly and legally published as required by the ordinance and the statutes governing such elections, and due allegations thereof are contained in the bill.

The bill further avers that due "resolution was presented for the appointment of managers and returning officers for said election, which resolution was duly and legally adopted"; that there was duly and legally appropriated a sufficient sum of money to pay the expense of conducting the election upon the issue of said bonds; that "on December 15, 1908, at 6 o'clock p.m. a meeting of said city council was held, pursuant to an order of the president thereof given to each member, and at which there were present a quorum authorized to transact business; that at said meeting the votes cast in the election upon the question of the issuance of said bonds were duly and legally canvassed, and upon the opening of the ballot boxes and counting thereof it appeared and was declared that there had been cast in favor of the issue of said $50,000 of bonds for the erection and equipment of a city hospital a majority of 490 votes, and that said election had been conducted in all respects as required by law, and said result was duly and legally declared to be in favor of issuing said bonds."

For reasons which do not appear in the bill and which could not affect the merits of the case, several of the authorized issues of bonds (other than the hospital bonds) were issued pursuant to the authority of law and aforesaid election. The reason why said hospital bonds were not then issued is an immaterial inquiry.

In 1911 the form of government of the city of Montgomery was changed under the general law controlling the municipalities of the state, and since that time the city has been governed by a board of three commissioners. Its said officials are respondents herein. On May 7, 1919, this board of commissioners decided to issue and sell the bonds of the city so authorized, and build and equip a city hospital. This determination of the board of commissioners (respondents in the instant bill) took form on the part of said board of commissioners of the city of Montgomery in the following ordinance:

"Adjourned Regular Meeting. Board of Commissioners, City of Montgomery, Ala. May 7, 1919. Present: President Robertson, Vice Pres. Tyson and Commissioner Stough--3. Absent: 0. The president stated that the meeting was called pursuant to adjournment of May 6, 1919.

"New Business. The following ordinance was taken from the table and placed upon its second reading:

"An ordinance to authorize and provide for the issuance of bonds of the city of Montgomery in the aggregate amount of fifty thousand dollars for the purpose of building and equipping a city hospital.

"Whereas, under and pursuant to an ordinance adopted by the city council of Montgomery on the 5th day of October, 1908, entitled 'An ordinance to order and provide for an election to be held in the city of Montgomery on Monday December 14, 1908, for the purpose of having the qualified voters of the said city of Montgomery vote upon and decide the question as to whether or not the additional bonds of the city of Montgomery shall be issued in the sum of fifty thousand dollars for the purpose of building and equipping a city hospital,' which said ordinance was approved on the 9th day of October, 1908, and under and pursuant to said ordinance and the law of Alabama an election was holden in the city of Montgomery on the 14th day of December, 1908, at the voting places in the various wards of the city for the purpose of qualified electors of the said city voting upon and deciding the question as to whether or not the bonds of the city of Montgomery should be issued in the amount of fifty thousand dollars for the purpose of building and equipping a city hospital, and,

"Whereas, the voters at such election decided in favor of such bond issue, a majority of all the legal votes cast having been 'For fifty thousand dollar city hospital bond issue':

"Now, therefore, be it ordained by the board of commissioners of the city of Montgomery, Alabama, as follows:

"Sec. 1. That the president of the board of commissioners be and he is hereby authorized and instructed to have engraved or lithographed fifty coupon bonds of the city of Montgomery, each of which said bonds shall be in the denomination of one thousand dollars, and shall have thereto attached sixty coupons of the denomination of twenty-five dollars each; each of said bonds shall be dated July 1, 1919, and shall bear interest at the rate of five per centum per annum, said interest to be payable semiannually on the first days of January and July of each year, from the date of the issue to maturity each of said semiannual interest installments being evidenced by one of the sixty coupons attached to the said bond, and both the bonds and the coupons thereto attached shall be issued in the form of negotiable paper, payable to the bearer in gold, at the office of the Old Colony Trust Company in the city of Boston, commonwealth of Massachusetts.

"Said bonds shall be signed by the president of the board of commissioners and countersigned by the treasurer and attested by the city clerk of the city of Montgomery and the official corporate seal of the said city shall be impressed upon the same. The coupons attached to the said bonds shall also be signed by the president of the board of commissioners and treasurer, but if the signatures of the said president of the board of commissioners and treasurer shall be lithographed in facsimile on said coupons, such lithographic signatures shall be deemed and held to have the same force and effect as original signatures.

"Sec. 2. Be it further ordained: That said bonds and coupons shall be in substantially the following form, to wit: [Setting out the form of bond and interest coupon.]"

Section 3 provides that it shall be the duty of the clerk of the city of Montgomery to record the bonds as therein prescribed, etc.

Section 4 ordains:

"That the money realized from the sale of the bonds herein provided for shall be and is hereby set apart as a separate fund for the purpose of building and equipping a

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