Wilson v. Florence , 20 L.R.A. 720 ( 1893 )

The opinion of the court was delivered by

Mr. Justice McGowan.

This is a petition addressed to this court in the exercise of its original jurisdiction by the plaintiff, John Wilson, a citizen and taxpayer of the city of Florence, of this State, praying for a writ of injunction to restrain and enjoin the municipal authorities of the said city from issuing bonds of the corporation in the sum of twenty-five thousand dollars, to be used for internal improvement of the said city, such as boring and completing artesian wells, building city hall, purchasing and laying terra" cotta piping, and such other “improvements” as are needed, as provided by the act of the legislature “to incorporate the city of Florence,” ratified December 24, 1890 (20 Stat., 868), of which section 20 is as follows, viz: “That the said mayor and aldermen [of Florence] may, for the purpose of internal improvements, borrow money, issue bonds or scrip therefor, bearing not a greater interest than seven per cent., payable at such time as they may think advisable, and payable out of the taxes and income of the said city: Provided, Said principal of bonds and scrip shall at no time exceed fifty thousand dollars: Provided, further, That the right to issue said bonds or scrip (in sums exceeding one thousand dollars) shall only exist in a majority vote of the city, as hereafter provided. That no one shall be entitled to vote on said question unless he or she is the owner of property within the corporate limits of said city, and has returned and paid taxes on one hundred dollars’ worth of property the year previous to such voting, and on each one hundred dollars’ worth of property so returned and paid for, the person or persons shall be entitled to one vote. The manner of holding said election shall be provided for by the city council of said city,” &c.

The petition, among other things, states that on May 15, 1893, the mayor and aldermen of the city resolved to issue bonds of the corporation in the sum of $25,000, provided the property holders of said city expressed their wish, at an election to be held for that purpose, for the issue of said bonds. That such election was ordered under section 20 of the act of incorporation above copied; that the clerk of the council, by their direction, furnished those named as managers a poll list taken from the city tax books for the year 1892, showing the number of voters of said city, and the respective amounts of property returned and taxes paid, but excluding from said poll list all property of “estates” and “corporations” in the city; that the election was held accordingly, and the managers made return to the council, showing a majority of votes in favor of issuing the bonds, but showing at the same time that this alleged majority was reached by excluding from the estimate the property of all “estates” and “corporations” in the city, which, if taken into consideration, would have reversed the result by many votes, as follows:

$624,900 Property of resident citizens,

54.400 Property of non-residents.

168,400 Property of corporations.

66.400 Property of “estates”.

$914,100

This amount of property (1 for every $100) authorized votes 9,141.

Majority .4,571

Notes actually cast.3,592

Less than a majority. 979

That, notwithstanding the value of the property and the number of votes actually cast, the city council are proceeding to make the issue of municipal bonds as proposed, and, in doing so, are transcending their authority under the incorporation of the city.

1 But it is contended that, in view of an election under the provisions of section 20 of the act of incorporation, the city council had the right to exclude from the estimate the property of “estates” and “corporations” within the limits of the city, and that, having rightfully excluded such property from the estimate, there was as to the remaining property a clear majority in favor of issuing the bonds. As well as I can understand, the view is, that such property could be left out of the estimate, for the reason that there is no one who can rightfully vote such property. This is not necessarily so, but, even if it were, the very fact that the property is necessarily included in the estimate affords at least some protection, for, under certain circumstances, as here, no vole is well nigh as effective as a vote. We have not been able to discover in the act any authority to exclude from the estimate any property in the city, no matter who may be owner thereof.

It is manifest that it was the intention of the legislature in all elections to create corporate debts to make the owners of property, being liable for such debts, the sole judges of the question whether such debts should or should not be contracted. The bonds contemplated were declared to be “payable out of the taxes and income of the said city;” each hundred dollars’ worth of property was given a vote, and, it seems, whether the owner of the property was a man or woman. The act itself expressly declares “that the right to issue such bonds shall only exist in a majority vote of the city, as hereafter providedj’ that is to say, according to the value of the property within the limits of the city, and the scale of voting therein provided for. Has there been “a majority vote of the cityf Certainly not a majority of votes per capita; nor of the property within the city, according to the provisions of section 20 of the act. of incorporation. The object of the act is plain, and its terms clear and explicit, without any exception, condition, or qualification whatever as to the ownership of the property in the city; and we do not think that this court has the right to remove any of the safeguards of the act, or the dispensing power to disregard any part of it.

The judgment of this court is, that the prayer of the petitioner be granted, and that the city council of Florence be enjoined from issuing the bonds ($25,000) in question.