Summary
invalidating bond election where single proposition was for schoolhouse, street paving and the installation of water meters
Summary of this case from Bentley v. Building Our FutureOpinion
No. 31368.
September 24, 1934.
1. MUNICIPAL CORPORATIONS.
Where an election is required to be held on question of incurring municipal indebtedness, two or more propositions, if separate and distinct in their character, cannot be combined into one and submitted as single question, but voters must have opportunity to vote separately on each of separate and distinct propositions, unless statute under which election is held expressly or by clear implication provides otherwise.
2. ELECTIONS.
Elections must be conducted by such means and in such manner as to ascertain, so far as practicable, true and untrammeled will of electorate.
3. MUNICIPAL CORPORATIONS. Schools and School Districts.
Where ballots at election on bond issue for erection of schoolhouse, street paving, and installation of water meters stated the three objects of bond issue, but were so arranged that voters were required to vote for or against the three objects as single proposition, and were not permitted to express their wishes upon merits of each object separately, election held ineffective and bonds invalid.
APPEAL from Chancery Court of Jackson County.
F.S. McInnis, of Moss Point, and Mize, Thompson Mize, of Gulfport, for appellant.
The purpose of this bond issue was specifically stated in the notice of the election and on the ballot and the maximum amount that was to be used for each item of the issue. This was a question submitted for one common necessity of the city, to-wit: The improvement and betterment of certain public works that were considered by the mayor and board of aldermen a necessity and were authorized by one section of the code under three subdivisions of the section, and was submitted to the voters in strict accordance with the doctrine announced in the case of Lightcap v. Yazoo City, 82 Miss. 148, 33 So. 949, and there is not a single authority in Mississippi to the contrary nor is there any section of the code requiring the matter to be submitted in any other way.
The Lightcap case has never been overruled and is conclusive on the cause before this court now.
Green v. Hutson, 139 Miss. 488, 104 So. 172; Bingham v. Wodell, 109 Miss. 769; North Carrollton v. Carrollton, 109 Miss. 344, 494; Humphrey v. Board of Commission, 144 P. 197, 92 Kan. 413.
We submit that under our law there is nothing to require the submission of the three projects separately and that on the direct appeal the decree of the chancery court should be reversed and the bonds validated.
Ford, White Morse, of Pascagoula, for cross-appellants and appellees.
In effect, three separate and distinct bond issues were submitted to the people by this ballot, although they were only given the privilege of expressing their choice for or against all of the projects.
Municipal authorities are authorized to issue bonds for certain purposes only. These are set forth in section 2483, Mississippi Code of 1930.
While we have been unable to find any case decided by the courts of Mississippi, holding that owing to the fact that if related objects are grouped as they are in the statute, only those in each subsection can be submitted as a single proposition, we do find, however, that the courts of other states have passed on this question.
Sterm v. Fargo, 122 N.W. 403, 26 L.R.A. (N.S.) 665.
The closest to a decision in this state on this question is that of Yazoo City v. Lightcap, 82 Miss. 148.
There can be no question at this time but that a sewerage system, water works and electric light plant are allied objects, as this court so held in the more recent case of Green v. Huston, 139 Miss. 488, in which case the court indicated in its decision that had the bond issue embraced a plurality of purposes, the same should have been separately submitted.
The universal rule on this question seems to be that a municipality may combine the issuance of bonds for various objects, if these objects constitute one rounded whole and are akin to each other, but that if the same are for a diversity of purposes and unrelated objects, each must be voted on separately.
28 Cyc. 1590; 19 R.C.L. 99, par. 294; 44 C.J. 1138; Stern v. Fargo, 26 L.R.A. (N.S.) 665.
The chancellor was eminently correct in his decision in holding that the bonds were for a plurality of purposes and were not submitted to the people on the question of their issuance in the manner required by law.
Argued orally by F.S. McInnis and S.C. Mize, for appellant, and by E.J. Ford and J.I. Ford, for appellee.
The municipal authorities of the city of Moss Point attempted to take the statutory steps for the issuance of the bonds of the city in the aggregate sum of one hundred thousand dollars for three separate objects, to-wit, fifty-five thousand dollars, to erect and equip an elementary school building; forty thousand dollars to pave certain named streets; and five thousand dollars, to purchase and install water meters. The three objects were adequately stated on the ballots furnished to the voters, but the ballot was so arranged that the voters were required to vote for or against the three objects as a single proposition, and were not permitted to express their wishes upon the merits of each object separately. The combined proposition received a small majority at the election; but, when the proposed bonds were attempted to be validated, objections were interposed by proper parties, and the chancellor held that, for the reason above mentioned, the election was ineffective and the bonds invalid.
The rule seems to be well established, with but little, if any, dissent therefrom, that, where an election is required to be held on the question of incurring municipal indebtedness, two or more propositions, if separate and distinct in their character, cannot be combined into one and submitted as a single question, but the voters must have the opportunity to vote separately on each of the separate and distinct propositions, unless the particular statute under which the election is held expressly or by clear implication allows a departure from the rule. 44 C.J., p. 1138; 19 R.C.L., p. 999; Winston v. Bank, 158 N.C. 512, 74 S.E. 611; Stern v. Fargo, 18 N.D. 289, 122 N.W. 403, 26 L.R.A. (N.S.) 665, and the numerous cases cited therein. This rule is founded upon the general policy or principle, which pervades the laws of nearly all our states, that elections must be conducted by such means and in such manner as to ascertain, so far as practicable, the true and untrammeled will of the electorate — a policy or principle which is held aloft and is sanctioned in a hundred ways throughout the laws of this state. The courts call attention to the fact that, if distinct and separate objects were permitted to be submitted in combination as a single proposition, an objectionable, or even an odious, object might be carried because thus connected with another of such compelling merit as to force adoption, while, on the other hand, a meritorious and essential object might be defeated by its combination as a single proposition with an unpopular and undesired object, so that by such combination of separate and unrelated objects the true and untrammeled will of the electorate is not expressed or ascertained.
Appellant concedes that the general rule of law is as above stated, but submits that the decisions in our state have not followed the rule, but have held to the contrary, and appellant cites and relies on Kemp v. Hazlehurst, 80 Miss. 443, 31 So. 908, and Yazoo City v. Lightcap, 82 Miss. 148, 33 So. 949, 951, as sustaining its contention. In the Kemp case the objects submitted as a single proposition were for "the erection of waterworks and an electric light plant," and in the Lightcap case the objects were for "sewerage, waterworks, and electric lights." In the recent case, Green v. Hutson, 139 Miss. 471, 104 So. 171, the particular objects were for "establishing a water, light, and sewerage system," and, in responding to the objection that a plurality of purposes was submitted as one proposition, the court said: "We cannot agree with counsel on this point, because the issuance of bonds was for one object, the common purpose of establishing a municipal plant to supply the needs of the inhabitants with public necessities of a similar character." Construing these decisions together, their force and the extent thereof as precedents is that the bonds involved in each of them were for a single object, or objects of an allied or similar character, and might therefore be submitted in combination as a single proposition. These cases are therefore no authority for the contention that separate, distinct, and unrelated objects may be submitted in combination as a single proposition, as was done in the case now before us.
Inasmuch as the conclusion reached on the point above dealt with results in an affirmance of the decree, it is not necessary to decide the second question or objection presented and argued, and we therefore pretermit a statement or discussion of it.
Affirmed.