Goodson v. Dean

SIMPSON, J. The bill in this case is filed by the appellant, as a taxpayer, to enjoin the probate judge and county commissioners from issuing county bonds, after an election had, providing for said bonds. The ciaim set forth in the bill is that the county of Conecuh is already indebted up to the amount allowed by the Constitution, according to its taxable values, as shown by the assessment books of 1910. The bill alleges that the complainant does not know the exact amount of the debts of the county, over and above a bonded indebtedness which does not reach the limit, and seeks a discovery to ascertain the exact amount of said indebtedness, which it is claimed is over the limit allowed. The bill does not allege that any steps have been taken toAvards issuing the bonds, but only that “the court of county commissioners of Conecuh county will order issued the negotiable bonds of the county of Conecuh under the supposed authority, obtained, by virtue of the [304] election held on the 8th day of November, 1910.?’ Demurrers were interposed to the bill; the gravamen being that the election is shown to have been held according to law, and the bill does not show that any steps have been taken towards the issuing of the bonds. Section 158 of the Code of 1907 provides for the holding of such elections. Section 224 of the Constitution of 1901 provides that “no county shall become indebted in an amount, including present indebtedness, greater than three and one-half per centum of the assessed value of property therein.” The prohibition of the Constitution is against the indebtedness, and not against the preliminary steps thereto, in ascertaining the wishes of the voters. It is evident that the validity of the issue of the bonds must depend upon the condition of the county indebtedness at the time of the issue of the bonds, and not upon its condition at the time of the election. — Corning v. Board of Com'rs, 102 Fed. 57, 42 C. C. A. 154, 158; Thompson-Houston Elec. Co. v. City of Newton (C. C.) 42 Fed. 723, 728; Redding et al. v. Esplen Borough et al. 207 Pa. 248, 56 Atl. 431, 432; Rathbone v. Board of Com'rs, 83 Fed. 125, 130, 27 C. C. A. 477; Dudley v. Board of Co. Com’rs, 80 Fed. 675, 677, 26 C. C. A. 82; 28 Cyc. 1584. An injunction should not he issued upon the mere apprehension of the complainant that some illegal act will be done. The county commissioners are charged with the duty of ascertaining, first, whether a majority of the electors have voted in favor of the issue of the bonds; and, second, before the issue of the bonds, whether their issue will create an indebtedness beyond the constitutional limit. In the absence of allegations of any steps taken towards the issue of the bonds, we can [305] not presume that the commissioners will do an illegal act. — 1 High on Inj. (2d Ed.) § 591, p. 391; Troy v. Com’rs of Doniphan Co., 32 Kan. 507, 510, 4 Pac. 1009; 1 Joyce on Inj. § 17, p. 35. Section 168 of the Code of 1907, which makes it the duty of the commissioners, when the majority of the voters have declared in favor of the bond issue, to issue the bonds, must be construed in connection with the Constitution, and cannot intend that they shall issue the bonds in contravention of the Constitution. There is no force in the contention that the order of the commissioners’ court for the election is invalid because not recorded by the probate judge until after the commissioners’ court had adjourned. The action of the court was complete when they passed the order, and the hill alleges that they did make the order. Section 3314 of the Code requires the judge of probate to record the proceedings of the court, hut does not provide when he shall enter them on record. Even as to his own official acts and proceedings, he is allowed three months thereafter within which to record them.-— Code, § 5421, subd. 2. At any rate, that would be no cause for granting the injunction, on the principles above announced. The decree of the court is affirmed. Affirmed. Anderson, Mayfield, Sayre, and Somerville, JJ., concur.