State ex rel. Radcliff v. City of Mobile

• Citation: 229 Ala. 93,155 So. 872
• Decision Date: 22 June 1934
• Docket Number: 1 Div. 834.
• Parties: STATE ex rel. RADCLIFF v. CITY OF MOBILE et al.
• Court: Supreme Court of Alabama

155 So. 872

229 Ala. 93

STATE ex rel. RADCLIFF v. CITY OF MOBILE et al.

1 Div. 834.

Supreme Court of Alabama

June 22, 1934

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Taxpayer's bill by the State, on the relation of R. H. Radcliff, and R H. Radcliff, individually, against the City of Mobile and the City Commissioners thereof. From a decree sustaining a demurrer to the bill and dismissing it, relator appeals.

Affirmed.

Pillans Cowley & Gresham, of Mobile, for appellant.

Harry Seale and S. P. Gaillard, Jr., both of Mobile, for appellees.

KNIGHT Justice.

This is a petition or bill by the state, on relation of R. H Radcliff, and R. H. Radcliff, a taxpayer, to prohibit, enjoin, or restrain the city of Mobile, and the commissioners of said city, from erecting certain wharf improvements in said city, and from procuring from the Public Works Administration the necessary funds with which to make said improvements, and from the issuance of interest-bearing warrants of said city to evidence and secure the repayment of the loan, and for other purposes. We shall treat the bill or petition as one for injunctive relief, and not for prohibition, as such a writ only issues from a superior court to an inferior jurisdiction to prohibit action by the inferior tribunal. The writ of prohibition is limited to coercion of courts, and not individuals. Southern Ry. Co. v. Birmingham, S. & N. O. Ry. Co., 131 Ala. 663, 29 So. 191.

It is made to appear from the petition filed in this cause, in the circuit court of Mobile county, that the city of Mobile, acting through its commissioners, proposes to secure a loan from the Federal Public Works Administration (or from such other public body as the money may be procurable from) a maximum sum of $2,600,000, or "so much thereof as the city may be able to persuade the Federal Public Works Administration to lend it." This money, when borrowed, to be used in the erection of certain "improvements to docks, wharves and piers on property now held, or about to be obtained, by the said city under a long-time leasehold interest from the State of Alabama, acting through its agency, the State Docks Commission, with the approval of the Governor of Alabama," the said property lying within the city of Mobile and within the area acquired by the state for the development, maintenance, and operation of its port and its port facilities; the improvements contemplated being the construction of a pier and a slip, and the construction upon such pier of a cold storage plant, banana handling plant, and a grain elevator, or any one or more of them that may be approved by said Public Works Administration.

It is further averred that the said city, unless prohibited and restrained by the court, proposes to borrow the money as aforesaid, and for the purposes set forth, and proposes "to issue its warrants evidencing the indebtedness to be incurred by securing the said loan, which warrants will be for interest only on the loan for three years, and after that time will be for the interest and also for amortizing principal payments; the last warrant for unpaid balance to be payable fifteen years after its date."

The petition avers that it is specifically provided in the application for said loan from the Federal Public Works Administration that such warrants shall not be a charge against the general fund of the city of Mobile, but that they shall be payable only out of the income derived from the operation of the facilities to be erected as the wharf, dock, and pier improvements, and which are "to be erected with the money to be borrowed."

That it is proposed by the city that the warrants, when issued, shall not be delivered to contractors or laborers performing the work of constructing the contemplated improvements, but will be delivered "directly to the authorized agency of the Federal Government," and that said warrants shall be secured by a mortgage "on the improvements placed upon the said leasehold interest of the city as set forth above."

It is made to appear from the petition that the state of Alabama, through the state docks commission, shall have and retain the power to fix the rates and charges to be made for the use of such facilities, and the power to supervise the management and operation of said facilities upon completion.

It is further made to appear from the petition that the city of Mobile has a population of more than 6,000 inhabitants, and is already indebted in an amount exceeding 7 per centum of the assessed valuation of the property therein, not including temporary loans made in anticipation of the collection of taxes and to be paid in one year; and not including bonds or other obligations for schoolhouses, waterworks and sewers; and not including obligations incurred for street or sidewalk improvements where cost thereof is assessed against abutting property.

The full terms of the leasehold agreement are not set out, nor is the contemplated application to the Public Works Administration set forth in terms, nor the form of the warrants, or the mortgage to be executed. We cannot, therefore, be as specific in dealing with the matter as we should like, but we will discuss the questions presented in such way as we think will meet the requirements of the case.

The city of Mobile, and the other respondents, commissioners of said city, in response to the rule nisi issued upon the filing of the petition against them, appeared in the circuit court of Mobile, and demurred to the petition, assigning many grounds, all to the effect that the petition failed to state "a cause of action," in that the city of Mobile, acting through its commissioners, was invested with the power to do the things which the petition averred it proposed to do.

On submission upon the demurrer, the court sustained the same, and, the petitioner declining to plead further, the court, on motion of respondents, entered a final judgment in favor of respondents, and dismissed the petition.

The appellants took the position in the court below, and they renew their contention here, that the city of Mobile has not the right to acquire the leasehold interest from the state, for that the state docks commission is without authority to execute such lease for and on behalf of the state of Alabama; that the city has not the power to execute the proposed warrants in the manner, and for the purposes, set forth; and that the respondents are without authority to increase the indebtedness of the city of Mobile in the manner contemplated, and that respondents are without lawful authority to dispose of the said warrants in the manner contemplated.

In brief filed here, the appellants argue that there are two major and three minor questions litigated between the parties, and before this court on this appeal.

The major questions are thus stated by appellant:

"1. In the light of the facts hereinbefore stated, will the incurring, by the City of Mobile, of the contemplated indebtedness, with the obligation to repay limited in the fashion contemplated, constitute a becoming indebted by the City of Mobile in excess of the limit fixed by the Constitution of Alabama?

"2. Can the City of Mobile issue lawfully, interest-bearing warrants of the character and in the fashion contemplated, as hereinbefore described?"

"Minor questions:

"3. Can the State of Alabama lawfully make and execute a lease to the City of Mobile for the purposes and in the general fashion hereinbefore described?

"4. Has the City of Mobile the power to take a leasehold interest from the State in the contemplated fashion, and erect thereon structures, equipment and facilities, for use on piers, wharves and docks?

"5. If the contemplated scheme be lawful and within the city's powers, and if the city may lawfully issue its warrants as contemplated; then may it deliver such warrants to the United States, or other lender, to evidence indebtedness for the loan; or is the city confined, in its use of the warrants, to the delivery of them to contractors and laborers in payment for work done in erecting the said structures, facilities and improvements?"

It would seem that the first important question to be determined in this case is, Has the city of Mobile the charter power to construct and maintain the improvements and facilities contemplated? Confessedly, if it has not, it would be useless to further pursue the questions.

It may be stated broadly that municipal corporations have and can exercise only such powers as are expressly granted in their charters, and such as may be necessary and proper in order to carry such express or direct powers into effect; but these powers include those which are indispensably necessary to the declared objects and germane to the governmental purpose for which such corporations may be organized. City of Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118; City Council of City of Montgomery v. Plank-Road Co., 31 Ala. 76; City of Mobile v....