Reid v. City of Mobile

• Decision Date: 11 June 1925
• Docket Number: 1 Div. 338
• Citation: 104 So. 787,213 Ala. 321
• Parties: REID v. CITY OF MOBILE.
• Court: Alabama Supreme Court

104 So. 787

213 Ala. 321

REID v. CITY OF MOBILE.

1 Div. 338

Supreme Court of Alabama

June 11, 1925

Appeal from Circuit court, Mobile County; Joel W. Goldsby, Judge.

Action by David J. Reid, doing business as the Mobile Printing &amp Binding Company, against the city of Mobile. Plaintiff takes a nonsuit, and appeals from adverse rulings on pleading. Reversed and remanded.

Outlaw & Kilborn, of Mobile, for appellant.

Frank J. Yerger, of Mobile, for appellee.

Appeal from Mobile Circuit Court.

GARDNER J.

Appellant brought this suit against the city of Mobile to recover the purchase price of 54 volumes of the ordinances of the city enacted subsequent to the Municipal Code of 1907. Demurrer having been sustained to his original complaint and to the several counts thereof, as amended, plaintiff took a nonsuit on account of said adverse ruling on the pleadings, and prosecutes this appeal for a review of these rulings.

The resistance on the part of the city to the payment of the sum claimed rests chiefly upon the contention that the contract with plaintiff for these 54 volumes of the ordinances was invalid, because not in writing, signed and executed in the manner prescribed by section 1183, Code 1907, now section 1899, Code 1923. City of Mobile v. Mobile Electric Co., 203 Ala. 574 84 So. 816. This was evidently the view entertained by the trial court; but we are unable to agree.

The above-cited code sections contain the following proviso "This section shall not be construed to cover purchases for the ordinary needs of the municipality," and we are of the opinion the contract in question comes within the influence of this proviso. The discussion of the term "ordinary expenses" by the court in the case of Livingston v. Pippin, 31 Ala. 542, is helpful in construing the proviso here in question. There it was said that "ordinary expenses are the expenditures which are necessary to carry into effect the ordinary powers of the corporation," as contradistinguished from extraordinary expenses which constitute a necessary means of carrying into effect extraordinary powers. These ordinary expenses, as we gather from the opinion in that case, are such as arise as necessary and proper to carry into effect the implied and incidental powers that pertain to the purposes for which the corporation was created. So, likewise, we think, are "purchases for the ordinary needs" of the city, such purchases as become necessary and proper to effectuate the implied and incidental powers appertaining to the purposes for which the municipality was created. The court judicially knows of the population of the city of Mobile, and the importance of having its ordinances in book or pamphlet form is recognized by sections 3989, 1254, and 1259 of the Code of 1907. These ordinances, it may be assumed, embrace many phases of municipal life, and the propriety of their proper distribution that they may be enforced and understood cannot be questioned. The enactment of such ordinances is a part of the regular conduct of municipal business, and their printing and binding into book form is but the exercise of the implied and incidental powers of the city, an effectuation of its ordinary powers.

Though the transaction here involved in a sense constitutes an order for work and labor done, in that the ordinances must be printed and bound, yet the contract provides for the payment of the agreed sum only upon completion and delivery of the bound volumes, and is in fact a contract for a purchase thereof within the meaning of the above quoted proviso. Nor does the fact that the necessity for such a purchase is infrequent materially affect the situation, as is illustrated by counsel in reference to the purchase of an iron safe for the city tax collector, which, very clearly, would be classed among the ordinary needs, but which would become necessary only at rather extended intervals of time. It would not be denied that dockets for use of its courts, printed forms and...