Wallace v. Ball
| Decision Date | 24 April 1921 |
| Docket Number | 6 Div. 270. |
| Parties | WALLACE v. BALL et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Bill by Sam Wallace against the Board of Revenue of Jefferson County and the individuals composing the same, to enjoin the sale of certain bonds and for general relief. From a decree denying relief, complainant appeals. Reversed, rendered, and remanded.
Robert J. Wheeler, of Birmingham, for appellant.
W.K Terry, of Birmingham, for appellees.
Section 222 of the Constitution of Alabama of 1901 in part reads:
"The Legislature, after the ratification of this Constitution, shall have authority to pass general laws authorizing the 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, *** voting upon such proposition."
The right to issue the bonds must come from a majority vote by ballot of the qualified voters of the county, voting on the proposition. The Legislature has the right, and it is its duty, to provide general laws to ascertain the will of the voters on the bond issue.
On February 26, 1903, after the Constitution was adopted, the Legislature by an act (now sections 158 to 174, Code 1907 both inclusive), provided general laws for registering at an election by ballot a majority vote of the qualified voters of the county on issuing of bonds by the county commissioners and boards of revenue.
This law requires that notice by publication previous to the election shall be given; and it shall "state the purpose for which the election is to be held, and the time and place for holding same, the amount of the proposed bond issue, and the maximum rate of interest proposed to be paid, and the time for which the bonds shall run, and the purpose for which the bonds are to be issued." Section 160, Code 1907.
This law also provides that no bonds issued shall bear a greater rate of interest than 5 per cent. per annum, and no bonds shall be sold for less than par--face value; and all bonds shall have attached interest coupons. Sections 170 and 172, Code 1907.
Under this law the board of revenue of Jefferson county, Ala called an election for February 16, 1920, for the purpose of submiting to the qualified electors of that county the following proposition, viz.:
It is averred by the complainant and admitted by the respondents that the election was duly advertised and held according to law, as provided by article 8, c. 11, of the Code of Alabama of 1907, and that at the election the proposition to issue the bonds was carried and the authority granted to the board of revenue to issue them for the purposes mentioned.
This gave the board of revenue authority to issue and sell bonds not exceeding in amount $5,000,000 to be used to construct public roads in the county, provided the annual rate of interest on the bonds did not exceed 5 per cent., and provided the bonds were not sold for less than par--their face value. Now comes Sam Wallace, the complainant, a resident citizen and taxpayer of Jefferson county over 21 years of age, and avers the foregoing facts and the following: That the board of revenue could not sell the bonds for face value at 5 per cent. per annum interest, and that respondents are attempting and trying or have signified their intention to sell $650,000 of said bonds of the 1920 series at less than par to the highest bidder, and will sell, if they can secure no better price, the said amount of the bonds at as low a price below par as would make them yield interest to the purchaser at 7 per cent. per annum, which would be about 91 cents on the dollar. The respondents admit these averments.
The complainant asks the court to enjoin the respondents from so doing. The bill of complaint is sworn to and the respondents file sworn answer; and the cause is submitted thereon. The court denied relief to the complainant and dismissed the cause, and this decree is assigned as error.
The pleadings show and respondents admit that they are intending to sell the bonds at less than par to net 7 per cent. per annum to the purchaser; and the respondents claim they are justified in doing so and authorized to do so by two acts of the Legislature of Alabama passed and approved since the election by the voters of Jefferson county on the bond issue. One act was approved October 6, 1920 (Gen.Acts 1920, p. 166), and the other was approved October 8, 1920 (Gen.Acts 1920, p. 116). The former authorizes the board of revenue to "dispose of the bonds of such counties *** at the best price obtainable, as such boards may determine, but that in no case shall they sell such bonds below ninety-five (95%) per cent. of the par value, and whether the issuance of such bonds shall have been authorized prior to the adoption of this act or not." The latter act fixes the rate of interest on all bonds issued by counties and cities with a population of over 5,000 at not exceeding 7 per cent. per annum; and bonds bearing 7 per cent. interest shall not be sold below par; but the board of revenue issuing bonds may fix a lower rate of interest and sell such bonds below par. However, the discount on the bonds must not be more than will cost the county issuing them a greater rate of interest, taking the discount into consideration, than 7 per cent. per annum.
The act of October 8, 1920, was passed and approved two days after the act of October 6, 1920. Both being on the same subject, the last one repeals the first one; so this leaves the act of October 8, 1920 (Gen.Acts 1920, p. 116). Bd. of Rev. v. Johnson, 200 Ala. 533, 76 So. 859.
This act of October 8, 1920, states in its body:
"That it shall apply to bonds already authorized to be issued as well as bonds hereafter authorized."
The title to this act reads as follows:
"An act to regulate the rate of interest to be paid on county and municipal bonds, and to provide for the sale of such bonds."
Section 45 of our Constitution states:
"Each law shall contain but one subject which shall be clearly expressed in its title."
This act, in its body, makes it apply to bonds heretofore and hereafter authorized to be issued. It is prospective and retrospective as to the bonds and the interest and the discount thereon and the authority to issue them. The title of the act does not refer clearly to its retrospective and discount intent and purpose. In this it is strikingly misleading, and calculated to spring a "surprise on the Legislature." It looks like the design of the act is to cure ills in or care for bonds of the past rather than to provide for the future. The title looks to the future, and not to the past; but the body has oil for the sores of the past as well as the ills of the future. "Prospective laws are the rule, and retrospective laws are the exception." If the body of an act contains both, the title should clearly contain both. Does not section 45 of the Constitution condemn and declare void that part of this act which attempts to regulate the sale below par of, and to increase the interest on bonds heretofore authorized by the voters of a county to be issued? We think so; this heretofore retrospective, past, and discount subject not being clearly expressed in its title. Lindsay v. U.S. Savs. & Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Barrington...
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