41 So. 862 | Ala. | 1906
Lead Opinion
“It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the
In deciding that the suit cannot be maintained against the municipality, we do not wish to be understood as holding that the claim in question could not be paid out of the fund provided by Acts 1886-87, p. 1012, § 10, under the direction of- the board of education. Since the power to contract this debt was not granted in express words, we cannot hold that it is a power to be implied as incident to the objects and purposes of the corporation. Eduactional institutions are not regarded as necessarily belonging to municipal government. “They are important and contrilmte greatly to the well-being and prosperity of any town or city, as do public buildings, charitable institutions for taking care of the sick, and other like institutions, but all such are of a class and constitute subjects, not germane to municipal organization.” — Wolff v. Taylor, 98 Ala. 254, 13 South. 688.
The matters set up in the replication as an estoppel are facts that should appeal to the moral sensibilities of the board of education, or even to parents, whose cliil
The trial court committed no error upon the ruling on the pleading; and, as the special pleas were proven, the general affirmative charge was properly given for the defendant.
The judgment of the circuit court is affirmed.
Rehearing
On Rehearing.
When the majority opinion was promulgated, three of the justices dissented. Upon the application for rehearing, there remained an equal division among those justices who participated in the decision ; and, as the fate of the appeal depended upon the conclusion the writer might reach, he has given the briefs of counsel careful consideration. The result is that he is unable to escape the conclusion at which the majority of the court arrived, as expressed in the opinion of Mr. Justice Anderson,.however much lie may desire the appellant to realize upon its claim. The reasoning by which he is led to this conclusion is the following:
This court has always strongly maintained the doctrine, both as to private and municipal corporations, that contracts made by or with them, outside the pale of their corporate authority, confer no right, and that neither the making of an ultra vires contract nor the receiving of its benefits estops the corporation from setting up its invalidity. — Chewacla Lime Works v. Dismukes, 87 Ala. 344, 6 South. 122, 5 L. R. A. 100; Sherwood v. Alvis, 83 Ala. 115, 3 South. 307, 3 Am. St. Rep. 695, and authorities there, cited; New Decatur v. Berry, 90 Ala. 432, 7 South. 838, 24 Am. St. Rep. 827. In Allen v. Intendent and Councilman of Lafayette, 89 Ala. 641, 8 South. 30, 9 L. R. A. 497, it was held that, although
Dissenting Opinion
(dissenting.) — The erroneous conclusion reached hy a majority of- the court is made plain by the fact that the act authorizing the issue of bonds hy the city of Greenville empowers that municipality to- erect a school building and to furnish the. same, and also authorizes the funds arising from the. sale of bonds to he committed to the custody of its own officer, a special treasurer, who was required to execute a bond to the city for their safe keeping; and undoubtedly the power conferred by the act is just as effective as if it had been written in the charter of the city. It is wholly impracticable “and unreasonable to suppose that the legislature intended that the municipality should construct and furnish the building in any other way than hy contract. Indeed, this is the only method that could have been adopted for its erection and equipment . It could certainly not have been expected that its officers and agents were to perform the manual labor necessary to the construction of the house had they been sufficiently skilled as artisans to do so; and it is not comprehensible that the legislature entertained the thought that the city had the necessary material on hand, of which to build it, and the necessary furniture to put into it. It is therefore entirely clear that it was contemplated that the municipality was either to purchase the material and the furniture and to employ the labor necessary to erect the building, or that it was to make a contract, as it did, for its construction and furnishing.
So, then, whether the one or the other (and it was within the business discretion of the officers of municipality which of these methods they would adopt), the authority and power to construct is necessarily conferred upon the municipality. The authority to contract carries with it the power to hind the city to pay the contract price to the other contracting party; and this, of course, out of whatever fund the-municipality may have available when the debt may mature. The fact that a special fund was
It could, with equal plausibility, he said that a city issuing bonds to he paid out of a fund to he raised by special taxation for that purpose cannot he made to pay them, if its treasurer,should misappropriate the fund after its collection and deposit with him.