The Birmingham age-herald., 1916-07-09
RECORD RAINFALL ENDS
 AND WORST IS NOW OVER

be the case anyhow.
 Judge Sharpe The scope of the order,
 as l have just announced it, 1 think
 would cover that. You see the injunction
 is against applying the special tax of
 one-half of one per cent to any purpose
 but the purposes as named.
 INDICATE MEANING
 MT. Benners: Yes, that is the equiva- lent of it.
 I Judge Sharpe: But to the issuance of bonds, so far as l have been able to see,
 that action by the city would be legal
 and the interest thereon may be paid from other sources than the one and a
 half per cent, or they may be sold with
 out reference to the payment of inter-
 est-interest thereon being paid out of the one-half of one per cent.
 Mir. Ullman: Your honor said pursuant to legislative enactment" Judge Sharpe: Yes.
 little bit more definite as to what you mean?
 Judge Sharpe: Act of the legislature as distinguished from anything in the present constitution.
 MT. Ullman: What about the charter powers?
 Judge Sharpe: That is legislative enact
 ment of course.
 MT. Ullman Do you indicate whether or not you are of the opinion that the power to issue bonds was contained. in the charter of 1898 implied power from the expressed powers granted? You recollect that we argued in the brief the power to borrow money was never inn
 piled from the power granted in the charter.
 Judge Sharpe: Now, perhaps I had bet ter not undertake, at this time, to dig out and specify just what bonds would be issued by authority of the legislature. You have got the general principle an- nounced and I suppose all that is neces
 ssry in order to enable the supreme
 court to pass on the question, which we both want settled, and MT. Ullman: But so far as the injunc- ton is concerned, we are left in position as having to construe your honor's order as to what bonds it applies to- Judge Sharpe: Is it your idea this
 der should specify every bond to wh:cA this order applies?
 DECLINES TO DO so MT. Ullman: Yes, sir, I think so. Judge Sharpe: I decline to do that at this time. That can be determined by you in behalf of the city on inspection of those acts, and the question as to whether you correctly dia gnose the case in that respect might be presented by special applica tion to- the court in this case as applied to any particular bond 1 issue about which there IS any doubt. At this time I am just simply following the prayer in the bill. It does not point
 out the bonds with particularly. MT. Ullman: The answer, however, does point out every bond issue and the pur- pose for which it was issued, and refer | ence is made in the brief to the author 1 ity to issue those bonds contained in the
 charter, general charter of 1899. | Judge Sharpe: Well, whatever can be gleaned from that as authorizing bonds, l %ha ..f hn , city.
 Mr. Benners: Your honor will recall l that section was pointed out | MT. Ullman: No, I pointed out section , 25, authorizing the city to carry on cer- tain work; for instance, with reference to maintenance of schoolhouses and erection of schoolhouses, and now we would like for your honor to indicate whether or not you are of the opinion that bonds issued for those purposes, which were authorized to borrow money | for those purposes and thereby had the I incidental power to issue bonds to se- cure the money.
 Judge Sharpe: As to some of the inn provements which the city is authorized | and perhaps required to carry on, there 1 have been special acts of the legisla- 1 ture to authorize the city to issue bones | for those. purposes.
 1 Mr. Benners: All the bonds issued were, as matter of fact, issued under special 1 acts other than the charter. | Judge Sharpe: I was of that impress
 sion, judging from the prayer what was | said in the pleadings in this case and
 my examination of the acts
 1 MT. Ullman: That is true, but as there
 was also in existence at the time gen. 1 eral authority to issue the bonds in ad- l dition to the special act, of course, the ! special act would be accumulative- IS MADE EXPLICIT | Judge Sharpe: If the power to issue bonds has been made explicit and ex- | pressed by special acts relating to them, | then of course that settle2 the ques- tion as to whether the special tax ought 1 to be applied to them. Now, if there | has been no other bond issue under | some implied authority, such as you say might arise why the city-it is one req 1 son why I could not well specify in thsS 1 Injunction anything along that line, De-. cause I do not know what bonds, nor
 do the pleadings disclose what have been 1 issued pursuant-what, if any, have been l issued pursuant to such implied pow 1 CTS and what according to special acts. l Mr. UIlman: The point I make is that | those bonds issued since 1901 for cUr- poses which were specified in the char l ter of 1899, were bonds which were au- l thorized within the meaning of the con- | stitution to be issued and that the spe- l l taken under the act of 1903 or 19O9 to put into operation the power granted by | the legislature, was merely accumula- | tive of the power that already existed, and those issues are pointed out with I certainty in the answer--purposes for which each issue since 1901 was had. For instance. there are several issues for sewers, storm and sanitary sewers, and there are several issues for school houses and it was for the purpose Of getting some interpretation from your
 honor as to whether or not those bones issued since 1901 were bonds authorized to be issued within the meaning of the constitutions. the power to issue them, if it existed under the charter of lS99 being then in existence.
 Mr.. Benners: No section of the city
 charter authorizing issue of bonds was called to the attention of the court. MT. ullman: I beg your pardon: Mr. Benners: You made an argument to the effect that the authority or right to build schools and to build market houses, and other similar things, car ried with 1t, by implication the right to issue bonds, but what I am saying is there was no section of the charter called to the attention of the court which in words authorized the issuance of any hords whatever.
 NOTHING ABOUT WORDS MT. Ullman: I did not say anything about words, of course; the whole argu-
 ment was our implied power to borrow
 money, the implied power carrying with 1 it the power to issue bonds. When l proceeded to make that argument, the court made some intimation and de- sisted from pointing out specifically what | those charter powers were. but ] have l in brief expressly pointed them out yer