Summary
In Atkinson v. City of Gadsden, 238 Ala. 556, 192 So. 510, 513, we held that such a water works board has the authority to supply water not only to the inhabitants of the municipality, but to "the surrounding territory."
Summary of this case from Water Works Board v. City of MobileOpinion
7 Div. 607.
December 7, 1939.
Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.
W. B. Dortch, of Gadsden, for appellant.
A City cannot grant to a corporation organized under Act No. 228 of 1937, as amended, to sell water to its inhabitants and to the city itself, the right to use the streets, avenues and alleys and other public places of the city in the course of its operations, for a period longer than thirty years. Const. 1901 § 228. Bonds issued by the Water Works Board of the City of Gadsden for the purpose of improving and extending an existing water works system must be considered to evidence an indebtedness of the City for the purpose of determining whether or not the City has reached its debt limit as prescribed by section 225 of the Constitution. In re Opinions of the Justices, 226 Ala. 570, 148 So. 111; Oppenheim v. City of Florence, 229 Ala. 50, 155 So. 859; Smith v. Town of Guin, 229 Ala. 61, 155 So. 865; Bankhead v. Town of Sulligent, 229 Ala. 45, 155 So. 869, 96 A.L.R. 1381; Smith v. WaterWorks Board of City of Cullman, 234 Ala. 418, 175 So. 380; Randall v. State, 233 Ala. 446, 172 So. 277; Town of Opp v. Donaldson, 230 Ala. 689, 163 So. 332; Schnell v. Rock Island, 232 Ill. 89, 83 N.E. 462, 14 L.R.A., N.S., 874; Joliet v. Alexander, 194 Ill. 457, 62 N.E. 861; Hoffman v. Kline, 300 Pa. 485, 150 A. 889; Madden v. Borough of Mt. Union, 322 Pa. 109, 185 A. 275. Such Board, organized under Act No. 228 of 1937, as amended, cannot issue bonds on system transferred to it under Act No. 494 of 1939 without first securing approval of the voters of the City in an election duly held as required by Section 222 of the Constitution. In re Opinions of the Justices, supra; Oppenheim v. City of Florence, supra; Randall v. State, supra. A city may not convey property owned by it and dedicated to a public use to an independent corporation for an inadequate consideration. Cleveland v. Public Library Board, 94 Ohio St. 311, 114 N.E. 247; Const. 1901, § 94. An Act of the legislature violates section 45 of the Constitution and is void if the body of the Act is broader than, and contains subject matter not germane to, the title of said act. Lindsay v. United States Sav. Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Yerby v. Cochrane, 101 Ala. 541, 14 So. 355; Moses v. Mayor, etc., of Mobile, 52 Ala. 198; Sanders v. Court of Com'rs of Elmore County, 117 Ala. 543, 23 So. 788; Thompson v. Town of Luverne, 128 Ala. 567, 29 So. 326; Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358. A City may not convey a water works system owned by it without approval of the electors of the City, and, also, approval of Public Service Commission. Code, §§ 2059-2069, 9825. A water works board may not acquire properties with which it proposes to engage in the business of selling water without first securing a certificate of convenience and necessity. Code, § 9825. The water works board may not legally issue and sell bonds without notice to and approval of the Department of Finance. Gen. Acts 1935, pp. 151, 195; Acts 1939, Act No. 112; Alabama Power Co. v. City of Scottsboro, 189 So. 559. The water works board, organized under Act No. 228 of 1937, has no power or authority to furnish water or service to persons in territory surrounding the City.
Frank J. Martin, of Gadsden, and F. E. St. John, Jr., of Cullman, for appellees.
The right of the water works board to use avenues, streets, and alleys and other public places in the city is not derived from a franchise granted by the city and so is not subject to the limitations imposed by the Constitution, § 228. The right is implied from the act creating the board, subject to Constitution, § 220. City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Giglio v. Barrett, 207 Ala. 278, 92 So. 668; City of Mobile v. Farrell, 229 Ala. 582, 158 So. 539. Issuance of bonds by the City of Gadsden for purpose of improving and extending its water works is excepted from the debt limitation in Constitution, § 225. Thomason v. Court of County Com'rs, 184 Ala. 28, 63 So. 87. Debts of water works board cannot be taken to be an indebtedness of the City, within the meaning of Constitution, § 225. Const. § 93; Harkins v. Smith, 204 Ala. 417, 85 So. 812; Smith v. Waterworks Board, 234 Ala. 418, 135 So. 380; Campbell v. Indianapolis, 155 Ind. 186, 57 N.E. 920; Coppin v. Board of Education, 155 Ky. 387, 159 S.W. 937; Kelley v. Brunswick School Dist., 134 Me. 414, 187 A. 703; Hyde v. Ewert, 16 S.D. 133, 91 N.W. 474; Board of Education of Chicago v. Upham, 357 Ill. 263, 191 N.E. 876, 94 A.L.R. 813; Lippert v. School Dist., 187 Wis. 154, 203 N.W. 940; Tuttle v. Polk, 92 Iowa 433, 60 N.W. 733; Borrowdale v. Board of County Com'rs, 23 N.M. 1, 163 P. 721, L.R.A. 1917E, 456; Kennebec Water Dist. v. Waterville, 96 Me. 234, 52 A. 774; Geary v. Board of Com'rs, 139 La. 781, 72 So. 245; Robertson v. Board of Library Trustees, 136 Cal. 403, 69 P. 88. Issuance of bonds by public corporation organized pursuant to Act No. 228 of 1937, as amended, is not controlled or regulated by Constitution, § 222. Const. § 213; Smith v. Waterworks Board, supra; Harkins v. Smith, supra; Alabama State Bridge Corporation v. Smith, 217 Ala. 311, 116 So. 695; Harman v. Alabama College, 235 Ala. 148, 177 So. 747; In re Opinions of the Justices, 226 Ala. 570, 148 So. 111; Oppenheim v. City of Florence, 229 Ala. 439, 155 So. 865; Randall v. State, 233 Ala. 446, 172 So. 277. The City, acting under grant of authority by the legislature, may convey its water works system to the independent public agency under the terms shown, title to revest in city upon full payment of all claims having lien on the property or its revenue. Const. § 94; Green v. Thomas, 37 Ohio App. 489, 175 N.E. 226. The water works board is not a "Corporation" within the meaning of the term, as used in Constitution, § 94. Garland v. Board of Revenue, 87 Ala. 223, 6 So. 402; Southern R. Co. v. Hartshorne, 162 Ala. 491, 50 So. 139; Rogers v. White, 14 Ala. App. 482, 70 So. 994; Griffin v. Jeffers, 221 Ala. 649, 130 So. 190; Stone v. State, 223 Ala. 426, 136 So. 727; Minneapolis v. Janney, 86 Minn. 111, 90 N.W. 312; Sambor v. Hadley, 291 Pa. 395, 140 A. 347; Re Opinion of the Justices, 261 Mass. 523, 159 N.E. 55. Section 45, Constitution, is to be liberally construed; the title of an Act is not required to express in minute detail each and every provision contained in the body of an act. State v. Sayre, 118 Ala. 1, 24 So. 89; Ex parte Pollard, 40 Ala. 77; Ex parte Mayor, etc., of City of Birmingham, 116 Ala. 186, 22 So. 454; Ballentyne v. Wickersham, 75 Ala. 533; In re Opinions of the Justices, 228 Ala. 140, 152 So. 901; Skinners Ala. Const.Anno. p. 299 et seq.; 59 C.J. 1052. Act No. 494 of 1939 amends Code, § 2061, so as to enable a municipal corporation to convey water works system to board organized under Act No. 228 of 1937, as amended, without approval of voters. Code 1923, §§ 2059-2069. And the city may convey without approval of Public Service Commission. Code, §§ 9825, 2059; Birmingham Electric Co. v. City of Bessemer, 237 Ala. 240, 186 So. 569; Culpepper v. Phenix City, 216 Ala. 318, 113 So. 56. Nor is it necessary that notice be given to and approval secured from the Department of Finance. Such Board does have the power to serve persons in territory surrounding the city.
This case is fully and fairly stated in the appellant's brief, which said statement appears in the report of the case.
The respondents, appellees, were proceeding under the Act of 1937, (Special Session), Page 274, as amended by Act No. 494 of 1939.
It is contended by the appellant that the transaction involved violates Section 228 of the Constitution of 1901 because the Water Works Board is not limited to thirty years for the use of the streets, avenues, etc. It is sufficient to say that the grant of the franchise is from the Legislature in the exercise of its sovereign power, City of Mobile v. Farrell, 229 Ala. 582, 158 So. 539, and the resolution of the city is a sufficient consent by the city to meet the requirements of Section 220 of the Constitution.
The bond issue is not by the municipality, but by the Water Works Board and did not have to be voted on under Section 222 of the Constitution.
The contention that the proposed bond issue is in violation of Section 225 limiting the indebtedness of municipalities, as to whether this limitation applies to the repairs, enlargements or extension of water works, we need not decide as the bonds will not be a debt or charge against the city.
The bonds expressly provide: "Said City of Gadsden shall not in any manner be liable for payment of the principal of or interest on the bonds or for the performance * * * contained herein or in the resolution of the board under which the bonds are issued." Campbell v. City of Indianapolis, 155 Ind. 186, 57 N.E. 920; Coppin and the City of Covington v. Board of Education, 155 Ky. 387, 159 S.W. 937; Smith v. Waterworks Board of City of Cullman, 234 Ala. 418, 175 So. 380. Nor does it violate Section 94 of the Constitution.
We are not persuaded that the said acts violate Section 45 of the Constitution because the body of same is broader than the title as each detail thereof is germane and cognate to the general subject of the title.
The amended Act of 1939, which is the last Legislative expression, authorizes the deal in question without an election and it expressly provides that corporations thereunder shall be "exempt from all jurisdiction of and legislation by the Public Service Commission."
The amended Act of 1939 exempts this Water Works Board from giving notice as to "acquisition of any property or the making of any loans or the issuance of instruments in evidence thereof."
It was therefore not necessary to procure the approval of the Department of Finance, Gen.Acts 1935, Page 199, § 14, if said act applies to this Water Works Board, which may be doubtful.
We think the Act of 1937 is broad enough to give the Water Works Board, organized pursuant thereto, the authority to supply water not only to the inhabitants of the municipality but to "the surrounding territory."
The decree of the circuit court in denying the complainant relief as well as declaring the rights and status of the appellees under the cross bill is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.