The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1921-12-16
CONTRACT WIT H
WATER WORKS HELD
VALID AND BINDING
City Attorney Holds Petition
Filed With Former Com
mission Is Merely
Private Paper


is unaffected by petitions circulated
and signed and filed with the for
mer city commission in February
1921, is the opinion of City Attorney
w. j. Wynn which was submitted
to the commissioners yesterday.
The petitions are construed as be-
ing private papers due to the fact
that the petitioners did not have them
certified to by the probate judge. The
water works contract is stated as
final and effective inasmuch as petit
lions bearing certification of the pro-
bate Judge were not filed within 80
days of the ordinance relative to the
water works contract and a referen-
dun on the matter now is regarded
as an attempted impairment of the
obligation OF the contract.
The opinion In full is as follows;
There are two questions involved;
first, whether or not the commission
can call an election upon this con-
tract upon the petitions which were
filed with the outgoing commission
in February of this year; second,
whether or not this commission could
legally call an election upon these
petitions in the event the persons who
presented them should now have the
Judge of probate afftx his certificate
to them showing that they contain
the requisite number OF qualified
voters. These questions depend upon
the construction of the five commits
sloners act approved September 20,
1915, with especial reference to Sec
tions IA and 80 thereof.
Calls 1t Private Paper
First: The first of these dues-
tions is comparatively easy. In af-
fixing his certificate to petitions of
this nature the judge of probate acts
in a judicial capacity, and his find
ings thereon are final and conclusive.
Until a petition of this nature bears
the required certificate of the pro-
bate Judge it is merely a private paper
and the commission is not authorized
to call an election hereunder
Second; The second question is
one that may never arise; but should
it arise, it is more difficult of solu-
ton. This department has studied
this question from every angle. to the
end that the people of Birmingham
may yet have voice in the making
or rejecting of the water works con-
tract. if it can be legally done. 1t is
impossible to say with certainty just
what construction our courts would
give to the statute relating to this
question, but we take it that you want
our best opinion as to what this COM
mission could do in the event these
old petitions should now be presented
to the probate judge and should re-
ceive his certificate.
Text of statute
section of the act providing for
the initiative is in the nature of a
grant of powers to the electorate.
while the referendum as provided for
in Section IA of the act is Just the
opposite; it is in effect veto upon
the action or proposed action of the
commission. Under this section the
commission has the power to make
contract of the nature of the one in
question subject to the veto powers of
the qualified voters, which is ex-
pressed in this language:
Pending the passages of any such
resolution, by law or ordinance, or
during the time intervening between
its final passage and the expiration
of the 80 days during which publica-
ton shall be made as above provided,
the legally qualified voters of said
city may, by written petition or petit
tions addressed to said board of COM
missioners object to such grant. and
if during such period such written
petition or petitions signed by at least
1000 legally qualified voters of such
city shall be filed with said board of
commissioners. said board shall forth
with order an election, which shall
be conducted by the election commits
sion of such city. at which election
the legally qualified voters of said
city shall vote for or against the pro-
posed grant as set forth in the said
bylaw resolution or ordinance
Thirty Days Leewny
In the first part of said section
it is further provided that while a
resolution or ordinance of the nature
in question may be passed by the
commission, the same shall not take
effect or be enforced until 80 days
after the final enactment of the same
and publication is made. This is in
order to suspend the operation of said
ordinance or bylaw for 80 days, dur
ing which referendum may be pro-
cured.
In our Judgment Section 80 con-
templates that the persons or COM
mittee obtaining signatures of the
qualified voters are the ones who are
required to present the petition to
the probate judge. obtain his certifi-
cate. and pay the cost thereof. al
though the statute does not in so
many words expressly say that these
persons are to present the petition to
the probate Judge
Need Judges Certificate
From reading of the statute Ii
is our best judgment that the law
would be construed as requiring the
persons obtaining the signatures to
obtain the certificate of the probate
judge to such petition before the same
is filed with the board of city COM
missioners, and that such petition
bearing the certificate of the probate
judge is required to be filed with the
board of commissioners within 80 days
from the final passage of the bylaw
or ordinance in question, and the first
publication thereof.
I'VE are further of the opinion that
at the expiration of 80 days from the
passage and publication of the ordi-
nance relative to the water works
contract said ordinance and contract
became final and effective, for the
reason tnat no petition bearing the
certificate of the probate judge was
filed with the commission during said
30-day interval
Says Against Constitution
THE contract with the water works
company having become complete and
binding. a referendum as to the same
would be. in our best Judgment. as
attempted impairment OF the obliga-
ton of a contract within the prohibit
ton of the federal constitution as
well as the constitution of the state
Of Alabama.
therefore, it appears to us that