NEIL
J.
This
action was brought, originally before a justice of the peace
of Dyer county, on five coupons, clipped from sundry bonds
purporting to have been issued by the town of Newbern. Each
coupon was for the sum of $30. Judgment was rendered on them
from which an appeal was prayed to the circuit court. In that
court a plea of non est factum was interposed by defendant.
The suit was tried before the judge of the circuit court
without the intervention of a jury. Pending the trial the
plaintiffs dismissed the action as to all of the coupons
except coupon No. 3, clipped from bond No. 4. The plaintiffs
thereupon prayed and obtained an appeal to this court; one of
the questions involved being the constitutionality of a
statute of this state.
While
the amount directly involved in the present suit is only $30
the questions arising on the record necessarily involve the
validity of bond No. 4 for $1,000, and of the whole issue of
$50,000 of which it was a part; there being 50 bonds, each
for the sum of $1,000.
These
bonds purported to have been issued under the authority of
chapter 117, Acts of 1907, which is as follows:
"An
act to amend the charter of the town of Newbern and all the
acts heretofore passed amendatory thereof, so as to empower
the mayor and aldermen of said town to issue coupon bonds
in an amount not to exceed fifty thousand dollars in excess
of the present bonded indebtedness of the town.
"Section
1. Be it enacted by the General Assembly of the state of
Tennessee, that the charter of the town of Newbern and all
acts amendatory thereof be, and the same are hereby, so
amended that the mayor and aldermen of said town shall be
vested with power and authority to issue fifty thousand
dollars of coupon bonds of said town as follows: To issue
twenty-five thousand dollars of said bonds for the purpose
of erecting and furnishing school buildings for the benefit
of the children of school age in said town, ten thousand
dollars of coupon bonds to improve and extend the water and
light system of said town, and fifteen thousand dollars for
paving or graveling the streets of said town.
"Sec.
2. Be it further enacted, that all bonds issued under this
act shall be of such denomination, bear such rate of
interest, not exceeding six per cent. per annum, and be due
in such time not less than twenty--nor more than
thirty--years from date, and be payable at such times and
places as the mayor and aldermen may determine.
"Sec.
3. Be it further enacted, that the said bonds shall not be
issued or used unless so ordered by a vote of a majority of
the qualified voters of the town of Newbern at any time and
as many times as the mayor and aldermen may deem necessary.
"Sec.
4. Be it further enacted, that this act take effect from
and after its passage, the public welfare requiring it.
"Passed
March 13, 1907.
"John
T. Cunningham, Jr.,
"Speaker
of the House of Representatives.
"E.
G. Tollett,
"Speaker
of the Senate.
"Approved
March 18, 1907.
"Malcolm
R. Patterson, Governor."
It is
conceded on both sides that this act is not good as an
amendment to the charter, but can only be considered as an
independent enabling act.
It is
attacked by defendant as unconstitutional, because in
violation of article 2, § 17, of the Constitution of 1870. It
is said that the body of the act is broader than the caption,
in that the caption indicates a bond issue "not to
exceed fifty thousand dollars in excess of the present bonded
indebtedness of the town," while the body of the act
contains no such restriction.
It is
also insisted that the act is unconstitutional, because under
the provisions of section 3 the citizens of Newbern are
deprived of a property right without due process of law, in
violation of article 1, § 8, and article 2, § 29, of the
Constitution; the property right involved being the right to
vote, and to have that vote given due weight. It is insisted
that under this section the citizens of Newbern could be
harassed by repeated elections, at the instance of the board
of mayor and alderman, and that nothing would ever be settled
until a vote should be given in accordance with the views of
the board, either an affirmative or a negative vote.
These
and other questions made upon the act will be disposed of in
their due order.
An
election was ordered by the board of mayor and aldermen, to
obtain the sense of the people. The returns of this election
showed a large majority in favor of the issuance of the
bonds. This election was held by the sheriff of Dyer county.
The defendant insists that the sheriff had no legal authority
to hold such election, that the election was therefore a void
proceeding, and hence that a necessary condition precedent to
the issuance of the bonds was not complied with. It is
insisted that the commissioners of election of Dyer county
had the sole authority to hold the election.
Acting
under the belief that an election had been lawfully held, the
board of mayor
and aldermen on the 19th of April, 1907, passed the following
ordinance:
"An
ordinance to provide for the issuance of fifty thousand
dollars in coupon bonds.
"Whereas,
the election heretofore ordered by the mayor and aldermen
of Newbern to be held to ascertain the will of the
qualified voters of the town of Newbern, Tennessee, as to
whether or not the mayor and aldermen should issue the
fifty thousand dollars in coupon bonds as provided for in
the Act of the General Assembly of the state of Tennessee,
passed March 13th, 1907, and approved March 18th, 1907,
being House Bill No. 301, was held on the 16th day of
April, and resulted in showing that a majority of all
qualified voters in said town favored the issuance of bonds
as provided for in said act of the General Assembly, the
result of said election having been duly and regularly
certified by the sheriff of Dyer county, Tennessee, under
whose supervision the said election was held; and whereas,
it is deemed necessary and proper to issue at once bonds to
the amount of fifty thousand dollars, twenty-five thousand
dollars to be used in erecting and furnishing school
buildings, fifteen thousand dollars to be used in
gravelling or paving the streets, and ten thousand dollars
for improving and extending the water and light system of
said town:
"Therefore,
be it ordained by the mayor and aldermen of Newbern that
said bonds be issued and sold as follows: Twenty-five
coupon bonds of the denomination of one thousand dollars,
the face value thereof amounting to twenty-five thousand
dollars, the proceeds to be used exclusively for the
erection and furnishing school buildings; fifteen coupon
bonds of the denomination of one thousand dollars, the face
value thereof amounting to fifteen thousand dollars, to be
used exclusively for gravelling or paving the streets; and
ten coupon bonds of the denomination of one thousand
dollars, amounting in the aggregate to ten thousand
dollars, the proceeds thereof to be used exclusively for
improving and extending the water and light system of said
town, said bonds to bear interest at the rate of five per
cent. per annum, payable semiannually, and said bonds shall
be due thirty years from date of bonds, and payable at such
place or places as designated in face of bond.
"Be
it further ordained that the bonds so to be issued shall be
signed by the mayor and clerk of said board of mayor and
aldermen, and said bonds shall be sold to the highest
bidder for cash, and not less than par or face value, and a
committee of three, including the mayor, shall be the
agents of the board of mayor and aldermen to secure bids
for making sale of said bonds.
"Be
it further ordained that the coupons to be attached to said
bonds to be issued as hereinbefore ordered shall at
maturity be receivable for all taxes and dues to the town.
"Be
it further ordained that this ordinance take effect from
and after its passage, the public welfare requiring it.
"Passed
April 19th, 1907.
"H.
J. Harris, Clerk.
"Approved
April 19, 1907.
"H.
J. Swindler, Mayor."
On the
10th of June, 1907, the foregoing ordinance was so far
amended as to strike out the words "thirty years"
and "five per cent."
On
August 27, 1907, the following additional ordinance was
passed:
"An
ordinance fixing the form and date of the $25,000.00 school
bonds, $15,000.00 street bonds, and $10,000.00 water and
light bonds of the town of Newbern.
"Section
1. Be it ordained by the mayor and aldermen of Newbern,
Tennessee, that the bonds issued by an ordinance of said
board of mayor and aldermen, duly passed on the 19th of
April, A. D. 1907, consisting of twenty-five bonds, the
face value thereof amounting to twenty-five thousand
dollars, for the purpose of erecting and furnishing school
buildings, fifteen bonds the face value thereof amounting
to fifteen thousand dollars, for the purpose of gravelling
and paving the streets, and ten bonds, aggregating ten
thousand dollars, for the purpose of improving and
extending the water and light system of said town of
Newbern, in the county of Dyer and state of Tennessee,
shall be, and the same are hereby, ordered to be dated, the
first day of September, A. D. 1907.
"Sec.
2. Be it further ordained that said bonds and the coupons
thereto attached shall be respectively in form
substantially as follows."
The
ordinance then...
