Mobile County v. Kimball & Slaughter, 54 Ala. 56

Mobile County v. Kimball & Slaughter

54 Ala. 56 | Ala. | 1875

MANNING, J.

By an act of February 16th, 1867, the general assembly of Alabama provided that a “ board for the improvement of the river, harbor and bay of Mobile,”* commonly called “ the harbor board,” should be constituted as therein set forth. The persons composing it were not elected by the people of Mobile county, though one of them was the president of its court of county commissioners of revenue. By section two it was further enacted, “ That the president and commissioners of revenue of Mobile county are hereby required to issue bonds for the amount of one million of dollars, to be issued and made payable as they may deem proper, to be delivered to the said board for the improvement of the river, harbor and bay of Mobile, whenever they may require them, and said court are required and shall levy and cause to be collected such tax as may be deemed proper to pay such bonds.” The act further provided that the harbor board should employ these bonds, or the proceeds of them, in performing the work to be done under its direction and superintendence, of improving the river, harbor and bay of Mobile — by widening and deepening the channel thereof to *58the city, or by making an artificial harbor, and should have the power to “ assess the dues on tolls to be collected on vessels or water-craft,” <fcc.

This board was organized, undertook to perform its work, and demanded of the president and commissioners of revenue of Mobile county — the body having, in reference to matters of revenue, the authority of a “ court of county commissioners,” therein — the bonds of the county to the amount of $200,000; in accordance with which demand, the said president and commissioners of Mobile county, on the first day of June, 1871, delivered to said board two hundred of the bonds of Mobile county, each for the sum of $1,000, payable at a future day, and with coupons for interest attached. These bonds and coupons were issued, in obedience to a judgment of the circuit court, which was affirmed upon appeal by this court, commanding the said president and commissioners, by a writ of mandamus, to execute and deliver them. Pres’t & Commis’rs, &c. v. The State ex rel., 45 Ala. 399.

By acts of April 19th, 1873, that of February 16th, 1867, was repealed — and the harbor board was prohibited from demanding and was declared not entitled to receive “under any pretense whatever * * * * any greater or larger sum or amount of bonds of said county than for said two hundred thousand dollars, including the bonds heretofore issued,” and was required to close up and settle its' business, and then to transfer the maps, charts, reports and other papers of the board to the judge of probate of Mobile county, whose duty it was made to carefully keep and preserve them as a part of the public records of his office.—St. Martin v. New Orleans, 14 La. Ann. 113; 30 Cal. 427.

In the meantime the harbor board, after receiving the two hundred county bonds, had entered into a contract, in the year 1872, with appellees for the performance by them of certain work for the improvement of the river, harbor and bay of Mobile, and agreed to pay them therefor, at the rate of 491 cents per cubic yard, in said bonds, valuing them at 82-| cents to the dollar, or $825 to the bond of $1,000. The work was completed, to the satisfaction of the board, by the first day of June, 1873, before which time appellees had received sixty-six of said bonds for the sum of $66,000, and then were entitled to receive seventeen other bonds for the sum of $17,000 more, with interest from that date. Of these seventeen bonds, eleven were a shortvtime afterwards delivered by the harbor board to the appellees; and the bill in this cause is filed to obtain the remaining six, or their value, from Mobile county.

The harbor board was a body created by the general assem*59bly of Alabama, and not an agent appointed by the county of Mobile. Its authority as well as its existence was derived through the statute from the State. It was with this board that the appellees made the contract upon which their suit before the chancellor was founded. And it is not shown or alleged that the amount of bonds it had received was insufficient to enable it to fulfill its engagements. Manifestly, therefore, their controversy should have been with the harbor board and not with the county of Mobile, unless some other state of facts had arisen by which the latter alone became liable to their suit.

Two grounds are alleged by appellees, who were complainants below, on which the responsibility of the county is based.

1st. One of these grounds is, that “ the said harbor board have ceased to have any thing whatever to do with the improvement of the river, bay and harbor of Mobile, and ” (as charged upon infornation and belief,) “ have turned over to and delivered to the said court of commissioners of revenue of Mobile county all the money, county bonds, &e., of any and every sort or kind whatever left in possession of or under the control of said harbor board unexpended in and about' the improvement of said river, harbor and bay of Mobile as aforesaid.”

2d. The other ground set up is, that the county, through the commissioners of revenue, had bought from said harbor board, after the claim of said appellees had matured, thirty-one of the same two hundred bonds which had been issued by it to the harbor board for the improvement of the fiver, harbor and bay as aforesaid, paying therefor at the rate of seventy cents in the dollar, a price alleged to be much less than their market value at the time ; and that appellees demanded of said court of commissioners six of said bonds, the number due to them, which it refused to deliver to them.

Counsel for appellees were mistaken in the facts alleged in the first ground set forth. The harbor board continued to exist for the purpose of winding up and settling its business, and was sued in two actions at law upon claims against it, one of which was brought by appellee James E. Slaughter, and caused suit in its name to be brought against certain other persons for the recovery of twenty-three of the two hundred bonds aforesaid, which its agent had not accounted for; and none of those bonds, or of any money or effects of the harbor board, had been ever turned over or delivered to said.president and commissioners of revenue.

And as to the second ground above: Although said thirty-one bonds were bought at seventy cents in the dollar — by the president and commissioners of revenue for the county— *60defendant denied the allegation of complainants (the appellees) that this price was less than their market value at the time — and complainants did not attempt to maintain their side of that issue. These bonds had also been canceled by the commissioners of revenue, before the demand of six of them was made by appellees of that body. While it is also further shown on behalf of the county that there still remained twenty-three others of its two hundred bonds which the harbor board received, that it had not accounted for; which twenty-three bonds were much more than sufficient to pay appellees the balance due to them, and all other debts that it is shown the harbor board owed.

Without, therefore, discussing the question, whether after the issue of the bonds to the harbor board, the county authorities had the right to purchase them up before maturity, at their fair market value at the time, and without any fraud or collusion, it is apparent that the delinquency complained of is that of the harbor board or some of its members against whom the suit was not brought, and not that of the county which is sued.

The only obligations imposed on the county and incurred by it, were that it should issue its bonds upon demand of the harbor board, and pay them according to their stipulations, to the lawful holders thereof. If its court of commissioners of revenue refused on such lawful demand to issue the county bonds, or if the harbor board, after procuring the work to be executed, failed to perform or was disabled from performing its duty of demanding from the county its bonds to a sufficient amount to pay the contractors, it is probable a case could be made for the interference of a court and its coercive operation on the county authorities in favor of the contractors, in a suit brought by them.

But when the county officials have delivered the bonds to the whole amount demanded, and this amount is ample for the fulfillment of the obligations contracted by the harbor board, and there has been no default on the part of the county in any particular, we do not perceive how it is to be made, in a suit like the present, amenable to third parties for the delinquency of a body which it did not constitute, and over which it had no control. If appellees have just grounds of complaint against any one, it is against the harbor board or some of its members, and perhaps against such other persons as were, if any persons were unlawfully in possession of, or withholding the bonds.

The decree against appellant must be reversed, and the bill be here dismissed at the cost of the appellees in this court and in the court below.