Bisbee daily review., 1906-12-19
B | N ] $ \ R E VALID iS
 OPINION
City Attorney Merritt Has For tified His Position on Sewer Bonds by Numerous De- cisions of Supreme Court.

It makes no difference whether two
 thirds of the taxpayers or qualified
 voters of city or county vote at Q
 bond election. or whether they do not
 vote, if two-thirds of the votes cast
 at such an election are for the bonds
 they are carried. the election Is abso-
 lutely valid. and the Supreme Court
 of the United States has held this to
 be the case in every instance where
 this matter has come before 1t from
 either . state or territory. according to City Attorney Merritt. He has looked up the decisions of numerous
 Supreme courts. and says they have
 all held to this opinion
 Tho validity of the Bisbee bonds
 which were voted last spring for es-
 tablishing a Sewer system was oues-
 tioned by Chas. B. Wood. . bona
 torney from the east. who passed
 upon the bonds for the local banks.
 he took the position that the bonds
 were invalid because twothirds of the
 taxpayers had not voted affirmauyesy
 on the bonds. although more than two-thirds of the votes cast were for the boncs-
 The City Attorney has fortified his position by sighting a number of Su- preme Court decisions. A conspicu- GUS case he found in the Supreme Court of Montana. It is a case where bonds had been voted for pubic im- provements and were about to be is- sued. An injunction suit was brought enjoining the county from is- | suing the bonds. because two-thirds of the taxpayers had not voted in the affirmative, although more than two thirds of the votes cast at the election were for the bonds. The decision | was handed down by the Supreme
 Court April 2s. 1902, on the question
 of what is meant by a majority vote.
 The decision Is taken from 69. Pacific Reporter. page S59. and follows:
 "The expression majority of the
 electors thereof voting at an election,
 etc. clearly means 6 majority of those | who vote, and not a majority of all the electors of the county. or of those who vote upon any other issue at the
 same or some other time. If the cleo
 ton on the issue of a loan had been l upon another day, there would have been no question but that 1t would have had majority of electors of the county who voted. It was none the less a special election within the
 meaning of the law. though on this particular instance 1t was held, for convenience. on the day for a general i election. It is ths theory of our gov MT ent that these electors control public affairs who take 6 sufficient in terest therein to give expression to their views Those who refrain from such expression are deemed to yield acquiescence. In a recent case tho court of appeals of Kentucky. having under consideration a similar constitx t!onal provision, said: It Is run1a mental principle in our system of gov. , eInEent that its affairs are controlled
 by the consent of the governed. and
 to thet end, 1t is regarded as just and
 wise that 8 majority of those who are interested sufficiently to assemble at places provided by law for the purposs shall. by the expression of their ooin-
 ion. direct the manner in which US "ffc'"s shau he rcnductod When u,.
 5orities are spoken of, it is meant d lna-tisH oi t---S T2O lee et- est Tn the government, and who have opinions and wishes 70 to '.o--- E. -~eu
 be conducted and have the courage to e-~-ess them. 1T 1aS
 :oiir- nf aTIr rN-srrrricrt in c-'nr ro
 ascertain the wishes of the people. to
 count those who do not take sunicient interest in It's affairs to vote upon questions submitted 70 them. IL IS a
 majority of those who are alive and active, ard expreSs their orinion. who direct the affairs Of tte government not these who are silent and express no opinion in the matter provided by law. If they have any. Before reach ! ing conclusion that those who framcd>cur fundamental law intended Ito change well settled policy by ai- lowing the voter who is silent and ex- presses no opinion cn public ou"s- l ton 10 be counted, the same as the Tone who takes sn interest =ai
 upon it. we should be satisfied that the language used clearly indicate such @ purpose
 In sutstantiaticn of IS opinion the supreme court sites the following cases: Fiscal Court vs. Trimble, 4I 5. W. 753, 42 L. R. A. 73S; Smith vs. Proctor. I30 N. '. 319, 29 N. E. 3i2. l4 |. R. 4. 403: Rowland vs. Board. l09 Cal r. fl Pac. se4; Cass Co. vs. Johnston. U. S. 360. A l.. Ed. 416: Carroll Co. vs Smith III U. s. s66.
 Sup. Crt- T. 539. 2s L. Ed. 517; OH lespie vs. Palmer. Wis 6i4.
 The supreme court of California in the case of HowIand vs. The Board of
 SuDervisors of San Joaquin county. ssys: Under Const- Art II. Sec. IS. providing that no county shah incur liability exceeding 8 certain amount without the assent of two-ihirds of the electors thereof voting st an cleo tsou ;o be held for that purpose. it ts necessary only that ,wo-thirds of those voting on the question vote to incur the liability and not that two thirds of all those voting at the gen eral election. held st the same time vote for it.
 | Mayor Caveu said yesterday that be had the highest regard for the opinion | of Cisy Attorney Merritt. and that he 1 would stand pat on the proposition He said from the information hs had 4 secured from Mir. Merritt he was con I vinced beyond doubt that the bonds are valid and that the supreme court II vos,id hold fhev arc He says thz