Stovall v. City of Monroe

• Decision Date: 01 December 1941
• Docket Number: 36371.
• Court: Louisiana Supreme Court
• Parties: STOVALL v. CITY OF MONROE.

5 So.2d 547

199 La. 195

STOVALL v. CITY OF MONROE.

No. 36371.

Supreme Court of Louisiana

December 1, 1941

Rehearing Denied Dec. 22, 1941.

Appeal from Fourth Judicial District Court, Parish of Ouachita; J T. Shell, Judge.

Geo. Wesley Smith, of Monroe, for appellant.

Oliver & Digby, of Monroe, for appellee.

PONDER Justice.

The plaintiff, Fred Stovall, sues to annul an election held in the City of Monroe, under the provisions of Act 251 of 1940 authorizing the issuance of certificates of indebtedness in the amount of $875,000 for the purpose of raising funds to extend, enlarge, and improve the electric light and power plant and system owned by the city, and to enjoin the city from issuing the certificates. The lower court rejected the plaintiff's demands and dismissed his suit. He has appealed.

The Commission Council of the City of Monroe adopted a resolution on February 11, 1941, calling an election to be held on March 18, 1941, under the provisions of Act 251 of 1940 for the purpose of submitting to the qualified electors of the Municipality the question of the issuance of $875,000 Electric System Revenue Certificates, the Certificates to be secured by and payable from the revenues dervied from the operation of the light and power plant and system owned by the city and to be used for the purpose of extending, enlarging, and improving the plant and system. Notice of the election was published in the official journal in the issues of February 13th, 20th and 27th, and March 6th and 13th, 1941. The resolution passed on February 11, 1941, calling the election was published only once and then on February 17th, 1941. The election was held on March 18th with 3,890 electors voting. Of this number 2,965 ovted in favor of the proposition and 825 voted against it. On March 18th, the day the election was held, there were 5,196 registered voters in the City of Monroe. Act 251 of 1940 under which the election was held requires the election to be determined by a majority of the registered voters and not as is usually the case by a majority of those voting in the election. One-half of the total number of voters registered on the date of the election would be 2,598. Therefore, 2,965 electors having voted in favor of the proposition the election was carried by a majority of 367 votes. Fifty-nine days after the election, or one day before the contest period had expired, the plaintiff instituted this suit.

Counsel for the plaintiff contends that the resolution calling the election was oppressive and constituted an abuse of power. This contention is based on the grounds that the election was called on such short notice and at such short period of time after the new registration began January 1st, 1941, that the general public did not have sufficient opportunity to register and participate in the election. It is suggested that it was well known by the mayor and members of the city council that there were about 10,000 residents in the city who were entitled to register and participate in the election at that time and that the action of the city council in calling the election on such short notice and within such short time after the new registration began resulted in depriving about 5,000 residents of the city of an opportunity to register and participate in the election. Counsel takes the position that this action on the part of the Commission Council was arbitrary, dictatorial, and a gross abuse of their powers.

Counsel has favored us with no authority to support his contention. The registration books were open from January 1st through February 15th, 1941, thereby giving those who desired forty-five days in which to register. No attempt was made to prove that anyone was unable to register because of the lack of sufficient time. The record shows that another election was called in the city of Monroe for the 15th day of July and that only 661 additional residents registered from March 19th to June 14th, 1941. If these voters, who registered during the three months after the election involved herein, had been permitted to vote in the election and had voted against the proposition submitted it would not have changed the results. Moreover, the election involved herein was called, proper notice given, and the election held in strict compliance with the provisions of the Act authorizing it.

Counsel contends that the election is void because of the lack of thirty days' notice. He takes the position that the notice of election published on February 13th was premature, illegal, and ineffective because the resolution authorizing and directing the publication of notice did not have the force and effect of law because it had not been published for a period of ten days and that the notice published on February 20th was therefore the first legal notice published being less than thirty days before the election on account of there being only twenty-eight days in February. Counsel states in his argument and in his brief that there is no difference between an ordinance and a resolution and since the city is operating under the Commission form of Government which requires ordinances to be published in full for ten days before they become final that any notice of election published prior to the time the ordinance became final is illegal and ineffective.

The only authorities cited by counsel to support his contention are the acts of the Legislature dealing with Commission form of Government and the Charter of the City of Monroe to the effect that ordinances and resolutions passed in due form by the council must be approved by the mayor and published in the official journal before they shall have the effect of law; and to the effect that ordinances must be published for ten days before they become final. Conceding for the purpose of this discussion that the resolution calling the election had to be published ten days to be of effect, it could not avail the plaintiff for the reason that the provision in Act 251 of 1940 dealing with the resolution calling the election makes no mention of and does not require the giving of the notice of election. The first paragraph of section 9 of Act 251 of 1940 provides that when the governing authority of a municipality desires to issue certificates it may adopt a resolution by a vote of two-thirds of its mumbers, stating the amount of the certificate proposed to be issued, the period of time they shall run, the rate of interest they shall bear, the purose for which they are issued, description of the property, description of the properties of which the incomes and revenues are to be pledged to secure the certificates, the dete of the election and the polling places. Nowhere is it stated or inferred that the resolution must provide for the notice of election. The second paragraph of Section 9 of the Act provides for the notice of election which reads as follows:

'Notice of such election shall be given by publication for thirty days in a newspaper published in the municipality or in the parish in which the municipality is situated. Such notice shall embrace substantially all matters required to be set forth in the resolution requiring the election shall be signed by the Mayor or other chief executive officer of the municipality.'

From a mere reading of the provision dealing with the notice of election it is apparent that it was intended to form no part of the resolution calling the election for the reason that it is stated that the notice of election shall set forth substantially what is contained in the resolution. This negatives the idea that the notice of election is a part of the resolution. The Act provides that the notice shall embrace substantially the matters contained in the resolution and that such notice shall be published for a period of thirty days. The notice of election involved herein was given in strict compliance with the statute. The public had the notice of the election as the law required. No one could be misled or prejudiced and the purpose of the law requiring the notice was literally complied with. McQuillan in his work, Municipal Corporations, 2d ed., Vol. 5, page 1002, at Section 2356 states:

'The provisions as to notice are usually regarded as mandatory and must be substantially complied with; they cannot be ingored. The notice in its recitals should observe the mandatory legal provisions, otherwise the election and the action authorized thereby will be void. However, a compliance with the spirit and purpose of the law in such manner as to afford the public an opportunity to know when...