Opinion
8 Div. 513.
February 8, 1923. Rehearing Denied May 3, 1923.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
John B. Tally, of Scottsboro, for appellant.
After the general limitation of 5 per cent. is reached, no debt can be created for purposes other than those named. Const. 1901, § 225; Gunter v. Hackworth, 182 Ala. 205, 62 So. 101.
Bouldin Wimberly, of Scottsboro, for appellees.
The present indebtedness of the municipality is slightly in excess of 3 per cent., created for the construction of a waterworks plant, one of the exceptional purposes; the proposed issue of bonds is 3 1/2 per cent. Hence the proposed issue would not exceed the constitutional limit of 8 per cent. To hold that the limit is made to depend upon the sequence in which debts are incurred would produce an inequality among municipalities, which was not the intention of the Constitution. Gunter v. Hackworth, 182 Ala. 205, 62 So. 101; Moody v. Gunter, 203 Ala. 655, 84 So. 831.
The bill of complaint is designed to test the validity of a bond issue by the town of Scottsboro for the erection and equipment of a county high school building.
Section 225 of the Constitution, so far as it is here pertinent, is as follows:
"No city, town, or other municipal corporation having a population of less than six thousand, except as hereafter provided, shall become indebted in an amount including present indebtedness, exceeding five per centum of the assessed value of the property therein, except for the construction of or purchase of water works, gas, or electric lighting plants, or sewerage, or for the improvement of streets, for which purposes an additional indebtedness not exceeding three per centum may be created."
The theory of the bill is that the town of Scottsboro, being already indebted in an amount slightly exceeding 3 per cent. of its assessed property values, can now add no further indebtedness which, with existing indebtedness, would be in excess of the limitation of 5 per cent., and that the proposed bond issue for school purposes, being itself in excess of 3 per cent. of assessed property values, and not within any of the excepted classes of indebtedness authorized in excess of the general limitation, and making an aggregate of indebtedness in excess of 5 per cent. — approximately 6 1/2 per cent. — is inhibited by the constitutional limitation of 5 per cent.
The theory of respondents' demurrer is that the general limitation of 5 per cent. is intended to apply only to general indebtedness; that, if a town has an indebtedness of 5 per cent. or less, a part of which was contracted for any of the exceptional purposes named in the provision, the town may add to its general indebtedness, provided the general indebtedness does not exceed 5 per cent., and provided, further, that the total indebtedness, general and exceptional, does not exceed 8 per cent. The argument is that it can make no difference when the exceptional indebtedness is contracted, whether before or after the authorized general indebtedness; that the Constitution makers could not have intended to allow an additional indebtedness of 3 per cent., for the exceptional purposes named, to those towns which had first contracted a general indebtedness up to the 5 per cent. limit, thereby authorizing a total indebtedness of 8 per cent. for those towns, and at the same time to allow a total indebtedness of only 5 per cent. for those towns which had first provided for their exceptional needs, and thereafter proposed to incur additional debts for general purposes.
There is much plausibility, and, indeed, some force, in respondents' contention; and if it were conceded that the purpose of the constitutional provision in question is primarily to place all towns of the same class upon an equality as to permissible indebtedness, the considerations urged might be of controlling importance. But we apprehend that the matter of equality as to permissible indebtedness was not a factor of any importance in the framing of this provision, but that it was rather intended, both as to the general limitation of 5 per cent., and the exceptional extension of 3 per cent. over, for the protection of municipal taxpayers, and for their general welfare in the acquisition and enjoyment of the exceptional improvements allowed for, in cases where they have not been provided.
To give to section 225 the construction suggested by respondents would do violence to the plain and natural meaning of its language. As written, it clearly declares that the only permissible indebtedness, after 5 per cent. has been reached, is for the several exceptional purposes specified. We cannot, by syntactic jugglery, invert its structure and reverse its terms so as to make them yield another meaning. Our judgment is that section 225 of the Constitution, as for its provisions for towns of less than 6,000 population, clearly inhibits any indebtedness in excess of 5 per cent. of their assessed property value, unless such excess is for one or more of the exceptional purposes specified, and that this inhibition is not affected by the fact that all or any part of the existing indebtedness may have been incurred for those exceptional purposes. The conclusion is that, on the showing of the bill, the town of Scottsboro is without authority to incur the proposed indebtedness for school purposes, and that the bond issue in that behalf would be illegal and wrongful.
There is equity in the bill, and in the aspect above discussed it was not subject to demurrer. We need not discuss the other questions presented by the bill and the demurrer, since on remandmant the bill can be so amended as to eliminate all features other than the single one above discussed.
The decree of the circuit court will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.