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(100 So.) tal if any one juror has a reasonable doubt, ground in the motion to exclude the same of the defendant's guilt. This fact should was because not responsive, and not because prevent a conviction, but would not authorize it was illegal or incompetent. It is a wellan acquittal. Charges 3 and 4 are likewise settled rule that only the party asking the faulty. Charge 5 was well refused for the question can move to exclude a nonresponuse of the word “supposition.” Walters v. sive answer upon the sole ground that it is State (Ala. App.) 95 South. 207. Charge 6 not responsive. Patrick v. State, 18 Ala. is abstract, there being no evidence as to App. 335, 92 South. 87, and cases there cited. the character of the defendant. Charge 7, Moreover, we are not persuaded that this whether good or bad, was substantially cov- evidence violated the rule against going into ered by several of the given charges as well the particulars of a previous difficulty. The as the oral charge of the court. Same as fact that defendant drew his gun on the to charges 8, 9, and 10. Charge 11 pretermits deceased did not involve the merits or dea consideration of the evidence.

tails of a former difficulty, but was in the [10, 11] Charge 12 was not only abstract, nature of a threat or menace. Threats are but assumed that there was proof of good admissible and they can sometimes be made character for the defendant when there was by acts or conduct as well as by words. We

po such proof. Charge 13 was covered by repeat that the record in this case discloses plett

given charge 5. Charge 14 was bad for the no reversible error on the part of the trial
use of the word “supposition.” Moreover, court, and the application for rehearing is
the principle asserted was covered by many overruled.
of the given charges. Charge 15 instructs
for an acquittal if the jury entertain a rea SOMERVILLE, THOMAS, and BOULDIN,
sonable doubt as to whether or not defendant JJ., concur.
acted upon a well-founded belief of peril,
and pretermits the other elements of self-de-
fense

. Charge 16 was covered by several CARMICHAEL et al. v. CITY OF DOTHAN given charges. Charge 17 asserts no sound

et al. (4 Div, 107.): proposition of law.

Charge 18 invaded the province of the jury, (Supreme Court of Alabama. April 10, 1924. as it was for them, under the evidence, and

Rehearing Denied June 19, 1924.) not the court, to say whether or not defend-1. Municipal corporations am 925 – Limitation ant wås guilty of a higher degree of crime

as to period of running of municipal bonds than manslaughter in the second degree. held to apply only to bonds issued at higher

The verdict of the jury was not contrary rate. to the great weight of the evidence or the in In Acts Sp. Sess, 1909, p. 192, § 11, and ferences to be drawn therefrom, and the Acts Sp. Sess. 1920, p. 116, the limitation trial court did not err in refusing the motion against bonds running more than 10 years apfor a new trial.

plies only when they bear the excessive rate The judgment of the circuit court is af- authorized to cities of less than 5,000 popula

tion, and does not apply to bonds issued by ei

ther class when the interest rate is within the Affirmed.

7 per cent. limitation allowed the larger class SOMERVILLE, THOMAS, and BOULDIN, by the latter act, and as to which the bonds

may run 30 years. JJ., concur.

2. Municipal corporations On907-Act regulatOn Rehearing.

ing price of bonds not repugnant to ConstiANDERSON, C. J. [12, 13] It is suggested tution regulating issue of bonds. upon rehearing tbat the original opinion, in Acts Sp. Sess. 1920, p. 116, § 2, regulating dealing with the objections to the evidence of the sale of bonds and specifying the price at Ola Nailor, proceeds upon the idea that it re- which they shall be sold, does not authorize a lated to the sayings and conduct of defend-governing board of a city, town, or county to ant when at her home in the afternoon and issue or charge bonds in violation of Const. just before the killing and takes no account which does not prevent a sale for less than par

1901, § 222, dealing with the issuance of bonds, of the objections and exceptions to what she

or control or forbid a discount. states as to what occurred during the first risit; that is, in the morning. There was no

3. Municipal corporations w921(2)-Bonds error in permitting this witness to testify

.may be sold below par, but must not cost muthat defendant told deceased he was going to

nicipality interest rate greater than specified. kill him. This same witness was asked by

Under Acts Sp. Sess. 1920, p. 116, authorthe solicitor, Did he go away?" Answer, izing issue of bonds bearing not to exceed 7 "Willie walked off by him, and him with his per cent. interest, and requiring them to be sold

at not less than par, bonds bearing a rate lower gun drawed on him in the yard at my house.” than 7 per cent. may be sold below par, but This evidence was not responsive to the ques- not at such a discount as to cost the city a rate tion which was asked by the solicitor and of interest greater than 7 per cent., considerkot the defendant's counsel, and the only ing the discount.

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firmed.

4. Municipal corporations 921(2)-Selling by the Legislature, if made applicable to the

bonds bearing interest at discount not mak- bonds in question, and did not invalidate the ing actual interest exceed legal rate held bonds in question. permissible. Under Acts Sp. Sess. 1920, p. 116, regulat

Appeal from Circuit Court, Houston Couning the issue and sale of municipal bonds, where i ty; H. A. Pearce, Judge. a city had authority to issue bonds, bearing 7

Bill in equity by D. C. Carmichael and per cent, interest, and issued bonds to run 18 others against the City of Dothan and othyears, to bear 6 per cent. interest, selling them at 90 was proper, since the actual interest ers, seeking to annul a bond issue for the would not exceed 7 per cent.

purpose of erecting a power plant, to set

aside the sale of such bonds, to cancel a 5. Municipal corporations Cw926-Deposit of mortgage executed by the city upon the pow

proceeds of bonds in bank to be paid out as work progressed held not to illegally increase er plant securing such bonds, and to cancel interest.

a contract for the erection of the plant. Where the issue of municipal bonds was

From a judgment sustaining demurrer to the otherwise legal, the fact that the proceeds were bill, complainants appeal. Affirmed. to be placed in a bank and paid out as work of The ordinance calling the election upon erecting a power plant progressed did not in the proposed bond issue provides, in part as crease the interest or render the transaction follows: otherwise illegal.

“That for the purpose of providing means 6. Municipal corporations em926–That sink with which to pay the interest due annually on

ing fund was to be created from revenue said bonds, payable semiannually, that 25 per from operation of plant held not to increase cent. of the gross revenue derived annually interest on bonds.

from the operation of said plant be, and the Where a sinking fund to meet payments of same hereby is, designated and fixed, to be placbonds was to be created by 25 per cent. of rev. ed in a sinking fund from the revenue so deenue derived annually from operation of a plant rived from the operation of said plant, and said to be built from proceeds of the bonds, and not 25 per cent. of said revenue shall be placed in from the proceeds of sale of bonds, this did not and known as a sinking fund for the purpose of increase rate of interest to be paid on the paying said interest and redeeming said bonds bonds by city.

as the same accrue, and this provision shall be

included and embraced in the face of the bonds." 7. Appeal and error cm 1033(2)-Overruling of

demurrer favorable to appellant will not be reviewed on appeal.

It is alleged that the following provision

is made in the mortgage or deed of trust: In a suit to annul a bond issue to erect a power plant, action of the trial court in over- “$15,000.00 for 1923, 1924 and 1925; 1/40 ruling a demurrer to a feature of the bill seek of the bonds outstanding for 1926 and 1927; ing to cancel the contract because not let to 1/20 of the bonds outstanding for 1928 to 1932; the lowest responsible bidder, and because a 1/15 of the bonds outstanding until the sinkcertain corporation was a foreign corporation, ing fund is sufficient to retire the bonds at and not qualified to do business in the state, maturity." was favorable to the appellant, and will not be reviewed.

Farmer, Merrill & Farmer, of Dothan, for

appellants. 8. Municipal corporations Cw925–Bonds not rendered invalid by change as to sinking fund, both of Nashville, Tenn., and Espy & Hill

W. E. Norvell, Jr., and E. J. Heitzburg, or failure to incorporate such provision on face of bond.

and Reid & Doster, all of Dothan, for ap Under Const. 1901, § 222, relating to bal

pellees. lots authorizing municipal bonds, it is not necessary to include the sinking fund feature of

ANDERSON, C. J. [1] Section 11 of the the ordinance on the ballot, and where it was act of 1909 (Acts Sp. Sess. p. 192), fixing the not done the change by city authorities as to nature of municipal bonds and the period the method of creating the sinking fund or fail- within which they may run, provides that no ure to incorporate such provision in the face bonds under this provision of the act shall of the bonds did not affect their validity or pro- run for a longer period than 30 years, and duce a different bond from the one authorized no bond issued by a city with a population of by the voters.

exceeding 6,000 inhabitants shall bear a 9. Municipal corporations w907—Bonds not greater rate of interest than 5 per centum,

invalidated by being secured by mortgage au- payable semiannually. Then follows the last thorized by act subsequent to election author- provision of said section (incorrectly set izing bonds,

out in the published acts, but correctly set The fact that Acts Sp. Sess. 1921, p. 6, out in the case of City of Andalusia v. Baldauthorizing municipalities to mortgage property win, 208 Ala. 19, 93 South. 894), which is as to secure bonds issued to erect lighting plants

follows: or a watering system, was passed after an election authorizing a municipal bond issue, did "But cities of less than six thousand populanot render the act contrary to Const, 1901, 8tion and towns may issue bonds bearing six per 2.29, relating to authorization of issue of bonds /cent. interest per annum, but no bonds bear.

For other cases see same topic and KEY-NUMBER 1n all Key-Numbered Digests and Indexes

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(100 So.) ing six per cent. interest shall run for a long-1 of 1909, 'and 8 per cent. under the act of er period than ten years.”

1920. As the bonds in question bore only 7

per cent. they could run for a period of 30 The general purpose of this act was to fix

years. a limitation of 30 years as to the running

[2, 3] Section 2 of the act of 1920 (Acts of bonds and a maximum rate of interest of Sp. Sess. p. 116) deals with and regulates 5 per cent., but to make an exception as to the sale of bonds, and does not authorize the the smaller cities and towns by allowing governing board of the city, town, or counthem to provide a greater rate than 6 per ty to issue or change bonds in violation of cent., but restricting the life of the bonds section 222 of the Constitution. This section to 10 years instead of 30. The act of 1920 of the Constitution deals with the issuance (Acts Sp. Sess. p. 116), authorizes cities and of the bonds, and not the sale thereof, and counties of 5,000 population to issue bonds / does not prevent a sale of same for less than at a rate of interest not exceeding 7 per cent. par or control or forbid a discount, and said per annum, and that the rate of interest on act of 1920 is not repugnant to section 222 of bonds issued by cities and towns of less than the Constitution. The act authorized the 5,000 shall not exceed 8 per cent. interest. issue of bonds in question for a rate not to This last act makes no express reference to exceed 7 per cent., and requires that they the act of 1909, but, as it increases the rate , shall not be sold for less than par; but of interest that the bonds may bear, and re- when bonds are issued for a lower rate of classes the cities by the slight change of interest than 7 per cent. they may be sold 5,000 instead of 6,000 population, it must be below par, but the discount shall not be so presumed that the Legislature was conscious great as to cost the municipality a greater of the former act as well as its intent and rate of interest than 7 per cent, taking the purpose, and intended by said last act to discount into consideration. The bond issue merely increase the rate of interest, subject in question bore 6 per cent., and the respondto the limitation and restriction of the for- ent city of Dothan had the authority to sell mer as to time, and which in effect meant the same at a discount which, when taken that when the interest was within the limi- in connection with said 6 per cent., would tation fixed for the larger class the bond is not exceed 7 per cent. sue could run for 30 years, whether the [4] It is urged that the sale of bonds was bonds be issued by either class, but where violative of the act of 1920, as it will cost the cities of the smaller class issued bonds the city a greater rate of interest than 7 for the excessive rate allowed them the bonds per cent. taking the discount into consideracould not run for exceeding 10 years. The tion. The bonds are for 6 per cent., and result is, and we so hold, that the two acts were purchased for 90 cents, or at a discount must be construed as authorizing the bond of 10 per cent., and they run for a period a issue to all counties, cities, and towns of any little in excess of 18 years, or, to be acsize when the rate of interest does not ex- curate, for 18 years one month and 20 days. ceed 7 per cent., but when cities and towns as to whether or not the city will have to of not exceeding 5,000 population avail them- pay over 7 per cent. interest, taking into selves of the authorized additional rate of consideration the discount, is a question of interest the bonds must not run longer than mathematics. We find upon an examina10 years. In other words, the limitation of tion of the "Consolidated Tables of Bond 10 years, in order to harmonize and make Values” issued by the “Financial Publishing the two acts workable and efficacious as to Company” that, in order for a 6 per cent. the purpose and intent of 'same, must be bond, which runs for a period of 18 years, to considered as applicable only when the bonds cost the city 7 per cent. interest, it must bear the excessive rate authorized to the sell for 89.85. Here the bonds not only sold smaller class, and does not apply to bonds for 90, but run for perio in excess of 18 issued by either class when the rate of in- years, and as per this table the cost of interest is within the limitation allowed the terest to the city is less than 7 per cent. larger class by the last act, that is, 7 per The writer bas also conferred with and been cent., and as to which the bonds may run assisted by several expert mathematicians

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who have verified the foregoing table, and In the case of City of Andalusia v. Bald- are quite positive that the interest cost to the win, supra, the act of 1920 was not involved, city, discount considered, is a fraction less as the bond issue was prior to the passage than 7 per cent.

True, in referring to said act it [5] The fact that the proceeds of the bonds was in effect stated that it changed the rate were to be placed in a bank and paid out as of interest and not the time the bonds could the work progressed did not increase the rate run. There was no express change of time of interest or render the transaction otherin said last act, but by necessary implica- wise illegal. This requirement was no doubt tion the 10-year limitation in the former act intended in good faith, and for the purpose must be held as applicable only when the of guaranteeing that the money was to be smaller cities and towns adopt the excessive expended for the purpose for which the rate of interest, 6 per cent., under the act bonds were issued and upon which said bonds

for 30 years.

of same.

were secured by mortgage. Reed v. Athens, od of creating the sinking fund or a failure 146 Tenn. 168, 240 S. W. 439. The case of to incorporate such a provision in the face of Planters' National Bank v. Wysong Co., 177 | the bonds did not affect the validity of same N. C. 380, 99 S. E. 199, 12 A. L. R. 1412, is or produce a different bond from the one one where the lender bank required the bor- authorized by the voters. rower to keep continuously on deposit a por- [9] It is next insisted that the city had no tion of the loan, and the lender therefore had authority to execute a mortgage on the plant the use of same, and the borrower did not, to secure the bonds. We find ample authority and the court properly held that the trans- for this under the act of 1921 (page 6, Acts action was usurious. Here the purchaser of Special Session). This act authorizes all muthe bonds did not retain the use of a part nicipalities of 6,000 population or over to ex. of the proceeds, but all of same was to be de ecute a mortgage or deed of trust to secure posited with a bank, a third party, to be ex- the payment of the principal and interest of pended or paid out as the work on the water all debts, bonds, or other evidence of in. system progressed.

debtedness hereafter incurred or issued by [6] The sinking fund was to be created by said cities for the construction of water. 25 per cent. annually of the revenue derived works, lighting plants, or water system, or from the operation of the plant, and not the extension or improvement of same, and from the proceeds of the sale of the bonds, the bonds in question were not in fact isand this did not increase the rate of interest sued until after the passage of the act. The to be paid by the city.

act does not relate to the issuance of bondis [7] The trial court seems to have overruled or the incurring of an indebtedness, but to the demurrer to that feature of the bill seek the right to secure the same when they do ing to cancel the contract because not let to exist. True, the act was passed after the the lowest responsible bidder, and as this rul- election authorizing the bond issue; but this ing was favorable to the appellant we are would not render the act violative of section not called upon to review the same. Same | 222 of the Constitution if made applicable as to that feature of the bill which seeks to to the bonds in question. Though the bonds avoid or cancel the contract because the approved by the voters were not then to be Brook-Calloway Company is a foreign cor- secured by mortgage, under existing law, the poration, and had not qualified to do business subsequent legislative grant of such author. in the state of Alabama.

ity did not work such a change in the charac. [8] It is urged that the bonds are invalid ter of the bonds as to violate the will of the because there does not appear in the face of voters as previously expressed at the polls. same that provision of the ordinance creat. The result of the election authorized the is. ing a sinking fund for the payment of interest sue, and the fact that the city was subsequentand the retirement of said bonds, and for the ly authorized, but before issuing the same, to further reason that the sinking fund as pro- make them a primary charge on the plant to vided for in the mortgage is different from be constructed with the proceeds of said the one contained in the ordinance, and which bonds, wrought no change in the bonds nor should have appeared in the face of the bonds placed any additional burden upon the citi. that section 222 of the Constitution re- zens and taxpayers. Indeed, it was a benefit, quires the approval of the voters before the rather than a detriment, to them, to provide issuance of bonds, and when they approve or for the payment of said bonds from a spe adopt a bond issue the city authorities have cial source, instead of from the general funds no right to change the nature or character of of the city. the bonds. As we understand section 222 of The case of Wallace v. Ball, 205 Ala. 623, the Constitution, it provides that the ballot 88 South. 442, is unlike the one in hand. shall set forth the character of the bond to There the act involved attempted to validate be issued, but it need not contain the fact as bonds already issued by in effect changing to whether or not, or how, a sinking fund is the bonds as previously authorized by the to be created for the purpose of paying the voters.

When the bonds in said case were interest and retiring said bonds, and unless voted they bore a certain rate of interest, the ordinance so doing is gratuitously placed and could not, under existing law, be sold on the ballot it could not be soundly held below par, and the act condemned by this that the voters had authorized the bonds court attempted to authorize the issuance only with such a sinking fund provision. The of bonds at a greater rate of interest than bill does not aver that the ballot contained they bore, when approved by the voters, by this useless provision of the ordinance, and authorizing a discount when the interest and in the absence of such an averment it can- discount did not exceed 7 per cent., in effect not be held that the bond as issued material authorizing 7 per cent. bonds when the voters ly varied from the one authorized by the lad only approved an issue of 5 per cent. voters. It not being necessary to include this bonds to be sold at par. Here the bonds aufeature of the ordinance upon the face of thorized by the voters bore 6 per cent., and the ballot, and it not having been done, the the law at the time of the election not only change by the city authorities as to the meth- authorized such bonds, but also provided

(100 So.) that they might be sold below par if the in-8. Street railroads Om 103(3)-Initial negli. terest, discount considered, did not exceed 7 gence no bar to recovery for subsequent nogper cent., and the voters, get what they au

ligence. thorized.

Initial negligence of plaintiff's automobile The decree of the circuit court is affirmed. driver may not be bar to recovery for defendAffirmed.

ants' subsequent negligence nor to their wanton

act or omission. SOMERVILLE, THOMAS, and BOULDIN, 9. Street railroads a 90(4)—Motorman may JJ., concur.

assume driver of automobile will look.

Motorman of street car may presume that adult driver of automobile driving toward

track for purpose of crossing will look for BOYETTE v. BRADLEY et al. (6 Div. 989.) until it becomes reasonably apparent to con

approaching cars before entering upon track

trary from conduct of automobile driver. (Supreme Court of Alabama. May 29, 1924.)

10. Street railroads Om 118(11) Instruction 1. Appeal and error ww1079_Assignments of held not to exact too high a degree of proof error not insisted upon not considered.

of automobile driver's care upon street car

track. Assignments of error predicated on refusal of charges not sufficiently insisted on will not

Charges given at defendant's request held be considered.

not to exact too high a degree of proof of plain

tiff ag to duty of driver of his automobile im2. Negligence 140—Instruction denying re-mediately before driving upon street car track.

covery for injuries resulting from mere accident held proper.

11. Street railroads w 99(1)-Care required

of traveler. A charge that, if plaintiff sustained injuries as proximate result of mere accident, verdict There is no iron-bound rule by which to should be returned for defendant, was proper judge a discharge of duty of due care before though there were allegations of simple and driving on street car track other than that imsubsequent negligence and wantonness contain- posed by particular circumstances and condied in separate counts.

tions entering therein and that should govern

acts of a reasonably prudent man, 3. Negligence all-Elements of wanton neg. ligence stated.

12. Witnesses 268(1)-Witness held propBefore there can be recovery for wanton

erly cross-examined as to employment: negligence, there must be shown facts evidenc- Where plaintiff's witness testified that he ing an intention to do or not to do an act with was passenger on street car which collided knowledge of its probable consequences.

with plaintiff's automobile, that it was racing

with a jitney, and that he did not see automo4. Trial Omm 237(6)-Instruction to individual bile before it was hit, he was properly crosssatisfaction of juror held proper.

examined as to what jobs he had, after having Instruction that, if after a fair considera- testified that he had been in city for four or tion of all evidence any individual juror is not five months prior to accident. reasonably satisfied therefrom “that plaintiff is entitled to a verdict in his favor, you cannot 13. Evidence Cm473–Testimony held not obfind for him," was proper.

jectionable as expression of imagination. 5. Appeal and error em 216(2)-Instruction as tion or judgment as to collision between street

Witness held to have given his best recollecto verdict where mind in state of confusion car and automobile, and his testimony as to held not reversible error.

how far car ran after collision, and as to signs A charge that, if after a fair consideration that the automobile had been dragged, was not of all evidence juror's mind is left in state of objectionable as giving expression to his imagconfusion as to whether or not plaintiff is en-ination. titled to recover, it was jury's duty to return verdict for defendants, held not reversible

Sayre and Gardner, JJ., dissenting. error though containing misleading tendencies, which might have been explained by counter- Appeal from Circuit Court, Jefferson Councharge.

ty; Dan A. Greene, Judge. 6. Negligence en 141 (8) Charges on sole Action by Willie F. Boyette against Lee C.

proximate cause not limited to simple initial Bradley and J. S. Pevear, as coreceivers of negligence, held erroneous.

the Birmingham Railway, Light & Power Charges given for defendants on sole prox- Company, to recover damages for personal imate cause, and not limited to simple initial injuries alleged to have been received when negligence, held erroneous as permitting initial negligence of plaintiff to bar recovery for sub- a street car collided with the automobile in sequent negligence or wanton act or omission which he was driving. From a judgment for of defendants.

defendants, plaintiff appeals. Reversed and

remanded. 7. Negligence Om 100-Contributory negligence no defense to count charging wantonness.

Plaintiff's witness Adams testified that he There can be no plea of contributory neg- was a passenger on the street car which colligence to a count charging wantonness. lided with plaintiff's automobile; that it was

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