CITY OF ANDALUSIA et al. v. BALDWIN

(93 South. 894) CITY OF ANDALUSIA et al. v. BALDWIN. (4 Div. 994.) (Supreme Court of Alabama. June 22, 1922.) Municipal corporations &wkey;>907—Bonds bearing 6 per cent, interest and to run for 25 years held invalid, statute not being repealed. Under Acts 1909, p. 192, § 11, providing that cities of less than 6,000 population may issue public improvement bonds bearing 6 per cent, interest, but that such bonds shall not run for a longer period than ten years, bonds which were to run for 25 years are invalid, and the law was not repealed by Acts 1920, p. 116, nor Acts 1915, pp. 110, and 566. Appeal from Circuit Court, Covington County; A. B. Foster, Judge. ■ Bill by E. O. Baldwin against the City of Andalusia and others, for injunction to restrain the issue and sale of bonds. From a decree overruling demurrer, respondents appeal. Affirmed. The bill is filed by E. O. Baldwin as a citizen and taxpayer of Andalusia, against the city of Andalusia and the mayor and city council thereof. It alleges the adoption of ordinances providing for the improvement of certain streets and highways in said city, and an ordinance providing for an election to submit to the voters of the city the proposition to authorize the issue and sale of $50,000 of bonds for the purpose of paying a portion of the cost of said improvements; that said last ordinance provided that such proposed bonds were to bear interest at the rate of 6 per cent, per annum and were to run for a period of 25 years. It is further alleged that an election was held at which a majority of the electors voted in favor of sai'd bond issue; that thereafter the city council adopted an ordinance providing for the issuance and sale of said bonds; and it is further alleged that the city has no legal authority to issue said bonds at 6 per cent, for the length of time fixed by said ordinances, and that such issue is wholly void. A. Whaley, of Andalusia, for appellants. The bonds proposed are authorized by law, and complainant’s bill is without equity. Code 1907, §§ 1421, 1432, 1365; Const. 1901, § 222; Acts 1915, pp. 112, 566; Acts 1909, p. 188; Acts 1919, p. 705; 189 Ala. 198, 60 South. 98; 202 Ala. 136, 79 South. 602. E. O. Baldwin, of Andalusia, for appellee. Cities of the class qf Andalusia cannot issue bonds 'bearing 6 per cent, interest to run for a longer period than 10 years. Acts 1909, p. 188, § 11. [MAJORITY — ANDERSON, C. J.] ANDERSON, C. J. The appellant was a city of less than 6,000 inhabitants at the time of the bond issue in question, and the ordinance providing for the issue made the bonds bear 6 per cent, interest, and fixed the period for which they should run at 20 years. The ordinance was evidently framed under section 11 of the act of 1909 (p. 192), and said section, as it appears in the published acts could possibly be so construed as to authorize the bond issue in question; but unfortunately the act as published does not conform to the original as adopted by the Legislature and now on file. The latter part of section 11, as it appears in the published acts, says: “But cities of less than six thousand population and towns, may issue bonds bearing six per cent, interest shall run for a longer period than ten years.” The act as adopted and as it appears in the original bill says: “But cities of less than six thousand population and towns may issue bonds bearing six per cent, interest per annum, but no bonds bearing six per cent, interest shall run for a longer period than ten years.” As the bonds in question are to bear 6 per cent, interest and are to run for a period of 25 instead of 10 years, the issue was not authorized by law and is invalid. It may be that section 11 of the act of 1909 has been amended by the act of 1920 (p. 116), in so far as to authorize a greater rate of interest, but it is not amended or repealed as to the period for which bonds are to run. Moreover, it appears that the ordinance in hand was adopted, and that the election was ordered before the adoption of the act of 1920. The act of 1909 (pp. 188, 193, inclusive) repealed sections 1421 and 1432 of the Code of 1907. Colvin v. Ward, 189 Ala, 198, 66 South. 98; McCrary v. Town of Brantley, 202 Ala. 136, 79 South. 602. While section 1365 has no application to the question under consideration. True, the act of 1915 (p. 566) attempts to amend section 1421 of the Code of 1907, but this was but a legislative oversight of the fact that said section had been impliedly repealed by the act of 1909, as declared in the case of Colvin v. Ward, supra. Nor do the Acts of 1915 (pp. 110 and 566) in any way amend or repeal section 11 of the act of 1909 (p. 192). The decree of the circuit court is affirmed. Affirmed. McClellan, Somerville, and thomAS, JJ., concur. .e—Vnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes