County Commissioners v. Henderson

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Montgomery County, in Equity, overruling the defendant’s demurrer to a bill in equity, and directing an injunction to issue as prayed by the bill. The effect of the injunction as granted'was to restrain and enjoin the appellants' from holding a sj)ecial election, to determine the question of a special levy and a county bond issue, for public improvement, in the Second Election District of Montgomery County. The bill, it will be seen, is filed by the appellees, certain qualified voters and taxpayers of the Second .Election District of that county, against the appellants,-the County Commissioners of Montgomery County, and with the exhibits fully states the facts and Acts of Assembly relied upon by ⁵³⁵ the appellees for the relief sought by the bill.

The questions were raised ‘by a demurrer to the bill upon the ground that the bill does not disclose a case that entitles the plaintiffs to any relief in equity. The bill is a lengthy one and the exhibits are very numerous, but in the view we take of the case it will not be necessary for us to discuss all of the questions raised by the record. We think the Court below was entirely right in holding that the failure of the County Commissioners of Montgomery County to comply with the statute in posting the notice required by law to the voters of the district before passing the resolution of tiie 22nd day of April, 1913, submitting the special road improvement tax, was a fatal defect in their proceedings, and the injunction was therefore properly granted. By tiie tenth paragraph of the plaintiffs’ bill it is distinctly averred, and admitted by the demurrer, “that said resolution was- not posted in accordance with the law as is shown by a certified copy of the certificjate of Clifford L. Howard, ►Sheriff of the county, filed herewith as part hereof, and marked ‘Exhibit No. 3.’ The store of Berrie E. Waters, where one of the notices was posted, was and is not in said election district” By section 452 of Chapter 790 of the Acts of 1912 (Local Law of Montgomery County), and the Act under which the proceedings in the case were had, it is provided, “that whenever it shall appear to the County Commissioners from a petition or petitions of the citizens and taxpayers of one or more election districts that there is a general public demand for securing and permanently improving a road or roads, or toll pike or toll pikes, lying in any election district, or lying partly iii two or more election districts, as herein stated, but that the levy of a special tax upon the property of such districts for such purpose or purposes would too heavily burden tiie taxpayers of said district, they, the said County Commissioners, are authorized and empowered to issue and ⁵³⁶ place special road improvement bonds of said county to cover the costs of sirch procurement and improvement of such road or toll pike, in such district or districts, the amount of such bonds not to exceed ten per cent, of the taxable basis of such election district or districts; provided that they, the said County Commissioners, shall prepare resolutions specifying the nature and estimated cost of such special road procurement and improvements, manner of issue and payment by special improvement bonds specifically designating the election district or districts in which property is to be taxed to carry said bonds and pay the interest thereon; said proposed resolutions shall be posted in at least five conspicuous places in’ each of the election districts affected thereby, and published once a week for three consecutive weeks in one or more newspapers of said county, with a notice of a meeting of said Coutny Commissioners at the expiration of that period, to hear any persons that may object thereto; after such hearing the said County Commissioners may, if they deem proper, pass such resolution or resolutions, and shall thereafter submit the question of the issue of such special improvement bonds provided for, in each of said resolutions, to the registered and qualified voters of such election district who are taxpayers in such election district or districts, at a special election to be held between