41 So. 868 | Ala. | 1906
This is the case of a bill filed by certain taxpayers of the municipality of the town of ITanceville, one of whom was an alderman of the said town, against the intendant and the other aldermen, to enjoin ultra vires acts of the corporation. The particular act complained of was the application of corporate funds to the repair and completion of school property- owned by the Hanceville school district situated in the town, and the purchase of an additional lot for the said school. After
We do not doubt the right of an alderman, to join in his individual capacity as a taxpayer of the town with the other complainants to enjoin ultra vires acts by the town authorities and their officers. One does not lose his character and capacity and rights as a citizen by becoming an officer of the town in which he lives, and he by no means complains of himself by joining with others in the institution of a suit in his capacity as a citizen and taxpayer against the corporation and its officers other than himself. Nor do we doubt that the officers of the corporation engaged in the perpetration of' ultra vires acts in behalf of the corporation are proper parties defendant to a suit to enjoin such acts, or to correct them. In such case there may be a personal liability in favor of the corporation, to be imposed upon the officers engaged in the illegal acts complained of. Nor does the fact that, after a suit has been instituted, complaining of ultra vires acts about to be done, the corporation and its officers discover their error and revoke the orders under which the acts were directed to be done, and abandon the
But there is a defect about the original bill which seems to render the sustaining of the demurrer thereto unobjectionable. The suit is in reference to corporate property and alleged corporate conduct. Ordinarily the corporation itself would be the proper complainant to bring such suit, but, being under control of officers who were united in the project of misapplying the corporate funds, the right to prevent such injuries to the corporation by the institution of suits such as this by the taxpay-. ers of the town is-undoubted, and it is fully recognized; but the municipal corporation in its corporate capacity is a necessary party to the proceeding, when it is not a plaintiff. When the suit is one to vacate a charter and restrain persons from acting as a corporation, it- was improper, prior to section 3423 of the code of 1896, to make the alleged corporation a party defendant, since it rvould be an admission of its existence. — State ex rel. Sanche v. Webb, 97 Ala. 111, 12 South. 377, 38 Am. St. Rep. 151. But when the suit is in behalf of a corporation, and to
The demurrer ill this case on the ground of the absence of the corporation as a party to the suit was distinctly made, and was sustained in term time, and the complainants, by not offering to amend, stood by their bill. There was thus no alternative left but to- dismiss the bill, since “no court can adjudicate directly upon a person’s right without the party being either actually or constructively before the court.” — Mallow v. Hinde, 12 Wheat (U. S.) 130, 15 L. Ed. 158; 3 Brick. Dig. 373. As this point is decisive, and must result in the affirmance of the decree of the lower court, it is unnecessary tó consider other matters in the case.
The decree of the lower court is therefore affirmed.