119 Ala. 476 | Ala. | 1898
By an act approved February 24, 1887, the mayor and council of tlie town of Decatur were authorized to negotiate a loan of $50,000 for the purpose of draining, grading, macadamizing and improving the streets of the town, and to issue bonds for the payment of said loan. Section 3 of the act provides: “That to meet the interest and principal at maturity upon any or all of the bonds issued under the authority of this act, the said corporate authorities shall, and it is hereby made their duty to, set apart out of the general revenues of said town each year an amount as a.sinking fund to meet and pay off the principal and interest upon said bonds at maturity, and to retain the same.” Bonds were issued under this act, the city authorities failed to provide a sinking fund as required by the section just quoted, and defaulted in tlie payment of interest. Alonzo White holding coupons for the interests on the bonds, sued thereon and recovering judgment for about $5,000, had executions issued against the toAvn AAdiich were returned “no property.” He thereupon filed his petition for mandamus to the mayor and councilmen, directing them to set apart out of tlie revenues of the incoming or current year funds to meet and satisfy his judgment. It is alleged in the petition, substantially admitted in the answer and shown on the hearing that prior to the filing of the petition the mayor and council had made an estimate of the revenues from all sources for the incoming or ■current year, and that in their judgment the revenues for the year would probably amount to the sum of $9,906.66; and it was further made to appear that, assuming the correctness of this estimate, they, the mayor and council, had made the following estimates of or appropriations to what they conceived to be legitimate and necessary municipal expenses: Salaries: Mayor, $300; clerk, $480; marshal, $600; police, $540; extra police, $100; attorney, $50; public schools, $1,650; water, $900; lights, $800; streets, $1,000; miscellaneous, $500; and sinking fund (the balance of), $2,888.66. But the estimate or appropriation to sinking fund Avas not made under or with reference to the provision of the bond act quoted above, nor with a view to the payment of the interest or principal of said bonds; but the intention was to apply the sum so estimated or appropriated to a mortgage debt which the city had subsequently contracted. It is
It is thoroughly well settled law that where the interest and principal of a municipal bonded debt is payable out of the general revenues of the town, no part of such revenue that is necessary to meet current, legitimate municipal expenses can be subjected to the payment thereof, but only the surplus of income after the governmental expenditures have been met or provided for can by any process of law be applied to such debt. — Dill. on Mun. Corp. §§100, 101; Underhill v. Calhoun, 63 Ala. 216; Williamsport v. Commonwealth, 90 Pa. St. 498; East St. Louis v. United States, 110 U. S. 321; State ex rel. v. Kansas City, 58 Mo. Appeal 124; Commonwealth v. Commission, 1 Wharton 1. Nor can it make any difference that the bonded debt is specially charged upon the general revenues or that the corporate authorities are specially required to set apart a sufficiency of such
We do not understand the appellant to challenge the foregoing principles. His insistence rather is that certain expenditures proposed by the mayor and council are not for legitimate municipal purposes at all, and that the money appropriated or appointed to them constitute, or Avill constitute when collected, funds in the hands of the respondents in excess of the necessary expenses of administering the town government, and should therefore be set apart as a sinking fund, and applied to the payment of his judgment. We have seen what these items of proposed expenditure are. As to those for water, lights, streets and public schools, we do not concur with appellant’s view. The care and repair
There is one other item in the estimated and proposed expenditures for the current year to be considered. The unchallenged items of necessary current expenses with those items which were challenged but which we have held to be legitimate and proper, leave of the estimated current rei^enues the sum of $2,888.60, as Ave haAre seen. This sum was apportioned and appropriated in advance of collection to the sinking fund, it being the intention of the mayor and council to disburse it upon a mortgage debt Avhich the toAvn owed and had owed for five or six years. Very clearly, of course, this debt was not a current expense of administering the municipal government, and the town authorities had no right to apportion any part of the expected revenues to this payment so as to defeat the efforts of other creditors to subject the excess over necessary current expenditures to the satisfaction of their demands. This mortgage we suppose avhs upon the tangible property of the corporation; and the holder of it had and could have no lien upon the revenues of the town, nor any claim to any part thereof superior to the demands of petitioner. The petitioner having a judgment, the Avrit of mandamus aatMc1i he seeks as a means of satisfying his judgment is in- the
That from the point of view of the hearing below there would be a surplus of revenue over current governmental expenditures we are reasonably satisfied. The estimate of the revenues for the incoming or current year made by the mayor and council and the apportionment or appropriation by them of a large excess to the sinking fund was prima facie proof that there would be a surplus. This estimate and apportionment was formally made and entered of record by the mayor and council, and as entered appears to have been upon data before them as to the assured valuation of taxable property, the number of polls, the number and character of licenses to be, or which had been, issued, the probable amount of fines which would be imposed and collected, the amount of collectible taxes, etc. It is not conceivable that the board could have made a mistake of nearly $3,000 in an estimate thus made of probable receipts of jess than $10,000; and surely we would not be justified in finding they made so gross an error merely from the expression of the mayor’s opinion when examined in this case that probably the revenues would not exceed the current expenses.
As to the precise amount of the surplus we are not concerned. Whatever it is it should be set apart for application to petitioner’s judgment; and that it might or would be less than the judgment, so that he would realize less than he prays for is no reason for not granting the relief prayed to the extent of the fund which should be applied to the claim. — -Howard v. City of Huron, 60 N. W. Rep. 803.
The judgment denying mandamus must be reversed. The cause is remanded.