141 So. 354 | Ala. | 1932
Lead Opinion
The bill of complaint does not proceed upon the theory that the employment of the respondents Evins and Quinn, and the services performed by them, was contrary to public policy, that is, that they exerted any improper influence on the Legislature, but is grounded upon the sole idea that the commission of Birmingham had no legal authority to employ or pay them for such service.
It is well settled by the decisions of this court that municipal corporations can exercise those powers only which are granted in express words or fairly implied to those expressly granted and those essential to the declared objects and purposes of the corporation and not those which are simply convenient, but not indispensable.
We are not cited to any express provision of law delegating the authority as was exercised by the respondents the commission, but they rely upon an authority which arises by necessary implication. The Act of 1915, page 296, § 6, delegates to the governing body of the city of Birmingham a broad exercise of the police power, limited or restrained only by the State or Federal Constitution.
As to the right and authority of a municipal corporation to expend public revenue to obtain or oppose legislation before the State Legislature or the Congress, there is a sharp conflict in the authorities. In the early cases by the Massachusetts court it was held that the town or municipality had no right to expend public funds for the compensation of or expenses to one appearing before the Legislature, even for legitimate purposes. As did the Maine court in Thompson v. Pittston,
The cases Colusa County v. Welch,
On the other hand, some of our courts have taken a broader view as to the powers of municipal corporations and have upheld claims of this character. The Connecticut court, in the case of Farrel v. Town of Derby,
While there is a division of authority, we are impressed with the logic and reasoning of the Connecticut court and which finds support in the courts of New Hampshire, New York, and Illinois, and we are of the opinion, and so hold, that the city of Birmingham had the necessarily implied power to protect and promote its well-being before the Legislature and to incur and pay reasonable compensation therefor.
Appellant's counsel put much reliance upon our recent case of Stone v. State,
The trial court did not err in sustaining the demurrer to the bill of complaint and, as the appellant declined to amend the bill as suggested by the trial court, there was no error in dismissing said bill.
The decree of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.
Concurrence Opinion
My concurrence is based upon the statement of the nature of the services of the attorneys as expressed in the opinion, and not upon the averments of the bill, upon the theory that the argument of counsel was confined to the question thus stated.
Dissenting Opinion
The only question considered in the majority opinion is whether or not the contract was one within the implied powers of the municipality.
It is well settled by the decisions of this court that municipal corporations can exercise those powers only which are granted in express words or fairly implied to those expressly granted and those essential to the declared objects and purposes of the corporation, and not those which are simply convenient, but not indispensable.
As to the right and authority of a municipal corporation to expend public revenue to obtain or oppose legislation before the State Legislature or the Congress, there is a sharp conflict in the authorities. In the early cases by the Massachusetts court, it was held that the town had no right to expend public funds for the compensation of or expenses to one appearing before the legislature, even for legitimate purposes; as did the Maine court in Thompson v. Inhabitants of Pittston,
On the other hand, some of our courts have taken a broader view as to the powers of *603
municipal corporations, and have upheld claims of this character. The Connecticut court, in the case of Farrel v. Town of Derby,
In the more recent case of Valentine v. Robertson, 300 F. 521, the United States Circuit Court of Appeals considered this question in connection with the former cases, and demonstrated that the weight and perhaps better authorities favor a narrow or literal construction of the authority of the municipality.
While there is a division of authority, this court has pursued the policy of a strict construction of the power of municipalities to expend public funds or to incur debts and liabilities. Colvin v. Ward,
I find nothing in the Act of 1915, p. 296, § 6, giving the governing body of the city of Birmingham express authority to expend funds for the purpose here involved. While the delegation of the police power is broad, I do not think that it is essential to the proper and necessary exercise thereof to have incurred the expense in question, and the trial court erred in denying the equity of the bill of complaint upon the theory that the city had the implied power to expend funds for the purpose of compensating counsel to represent it before the Legislature, as charged in the bill of complaint.
Aside from the foregoing, I cannot escape the conclusion that the averments of the bill clearly bring the case within the principle "that agreements for the procurement of favors from public officials in the discharge of public duties by personal solicitation or influence as considerations to be addressed to them over and above the merits of the actions sought" are void as against public policy. Bush v. Russell,
I therefore respectfully dissent.
Addendum
All the Justices concur, except BROWN, J., who dissents.