It is clear to me that the construction of the proposed expressway would unquestionably be the construction of a "new" facility as opposed to the "improvement" of an old one. The testimony and exhibits make it abundantly clear that the new highway would utilize existing facilities only incidentally, and any "improvement" to the existing streets would be strictly secondary in nature.
In Wolff Chemical Co. v. City of Philadelphia, 217 Pa. 215,66 A. 344, the Supreme Court of Pennsylvania was confronted with an issue strikingly similar to the one presently before us. In that case, a municipal bond issue was approved by the voters of the city "for continuing the improvement of the boulevard from Broad street northeastward." The city authorities then attempted to use the proceeds of the bonds to "open" the boulevard. In holding that the "improvement" of the boulevard did not include the "opening" of the boulevard, the court said:
"* * * we think it clear that the appropriation 'for continuing the improvement of the boulevard' was not intended *Page 551 to be applied to the opening of the boulevard. 'Continuing the improvement of the boulevard' implies the prior existence of a boulevard, a change for the better in its condition, and that some progress had previously been made in bettering its condition when the city councils and the electors authorized the increase of the municipal indebtedness for the purpose. As tersely put by Grey, V. C., in Ames v. Trenton Brewing Co., 56 N.J. Eq. 309, 38 A. 858, 'in order that there might be an improvement, there must previously have been something to improve.' As long as the buildings occupied the site of the proposed boulevard and the damages due the property owners were unpaid or unsecured, there was no street to be improved. * * *"
The Pennsylvania Court went on to say that it was problematic whether or not a majority of the voters would have voted the funds to open the boulevard, saying:
"* * * It is one thing to present to a voter a proposition to increase an indebtedness for the purpose of continuing or completing a municipal improvement already in progress, and quite another thing to ask him to increase the debt of the city for the purpose of inaugurating a public improvement which will result in the expenditure of large sums of money. For obvious reasons, he might and probably would favor the first proposition; but he might have great hesitancy in supporting the latter. The purpose of the law in requiring full notice to the elector of the object of increasing the indebtedness is to enable him to vote intelligently and with a full comprehension of the purpose to which the money is to be applied. In casting his vote for or against the proposition, he is controlled by the purpose of the proposed increase as stated in the ballot furnished him by the city itself. Good faith and official integrity, therefore, require the city authorities to apply the fund thus placed in their hands strictly in accordance with the purpose for which it was voted. The language of the notice given the voter is that of the city councils, and, if there is any doubt in its meaning, it must be resolved so as to prevent the application of the fund to a purpose other than that for which the circumstances and the apparent intent of the electors intended it."
In the case of Harding v. Board of Supervisors of Osceola County, 213 Iowa 560, 237 N.W. 625, bonds were approved "for the purpose of providing the funds for draining, grading and hard surfacing the primary roads of the county." There were existing at the time of the approval of the bond issue, certain roads which bore the designation "primary roads." An attempt was made after the bond issue was approved to use the money provided for the paving of another road; presumably it would then have become a "primary road." In preventing the bond funds from being used for such a purpose, the Iowa court stated:
"When the voters voted in favor of the said proposition, they voted for the expenditure of the funds upon the then primary roads of the county, and not upon some road which might thereafter be substituted for the then primary roads of the county. * * *"
Another case in point is that of Marks v. Richmond County,165 Ga. 316, 140 S.E. 880. In that case, a resolution was passed by the county board of commissioners specifying work that had been done on the highways of the county and calling for an election to approve a bond issue for "[p]aving with hard surfacing and improving the stretches of state highways traversing Richmond county." The bond issue was approved by the voters. Subsequently, the highway department relocated one of the routes in the county (laid out a new road), and adopted the new route as the official one. In disallowing the expenditure of the *Page 552 bond money on the new route, the Supreme Court of Georgia said:
"* * * You cannot reduce grades, make fills, and eliminate curves in and from roads which have not been located, and which do not exist even on paper. The reference is to highways which traverse Richmond county. A highway which has no existence cannot traverse even Richmond county. In describing these roads the present participle, traversing, is used. Thus, by the facts stated and the language used in describing these highways, the clear and unmistakable reference is to roads already built, and not to roads yet to be built. * * *"
The cases of Thompson v. Town of Frostproof, 89 Fla. 92,103 So. 118; City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97; Thompson v. Pierce County, 113 Wn. 237, 193 P. 706; and State ex rel. Ramsey County v. Babcock, 186 Minn. 132, 242 N.W. 474, are of similar import.
Counsel for the appellees has ably attempted to distinguish all of the above-cited cases from the case at bar. Admittedly, some of them do differ in some respects from the present case. I am convinced, however, that the rationale of those cases is logical and sound and should be followed. Appellees rely strongly on the case of Meyering v. Miller, 330 Mo. 885,51 S.W.2d 65. There, a proposition was submitted to the voters of the City of St. Louis proposing certain bonds, the proceeds of which were to be used "[f]or the acquisition of land and the construction of additions and extensions and equipment of public hospitals * * *." Action was brought to prevent the city from using the proceeds of the bonds thus authorized for the construction of a new hospital. The Supreme Court of Missouri allowed the bond funds to be so used. One unique factor was present in that case, however. It appears from the report of the case that while it did not appear on the ballot that the funds would be used in part for a new hospital, the electorate was apprised of this fact before the election. Thus, it might well be said that the voters of St. Louis did approve of the use of the bond funds for construction of an entirely new facility. The same cannot be said of the instant case, for while the Red Mountain Expressway had been under consideration for some time, there is no evidence that the general public understood that it would be included in the bond issue here under consideration.
Appellees contend that the existing streets of Birmingham would be improved by the proposed expressway because it would reduce traffic on them and hence lessen wear. While this may be technically true, it is clear to me that this is not an "improvement" within the intended meaning of the word as used in the proposal here being construed. It appears to me that when the average voter read the word "improvement," he thought of a physical addition to or modification of a street, such as paving, grading, etc., not a mere lessening of use.
The rule of law argued by appellees that the appellate court will not reverse the judgment of a municipal body having discretionary powers unless the action of such body is fraudulent or corrupt, has no application in this case. In my judgment, the city had no discretion to use the bond funds for an unauthorized purpose.
It is my conclusion that the decree of the trial court was laid in error and should be reversed. I, therefore, respectfully dissent. *Page 553