Equitable Loan & Security Co. v. Town of Edwardsville

• Decision Date: 07 February 1905
• Citation: 38 So. 1016,143 Ala. 182
• Parties: EQUITABLE LOAN & SECURITY CO. v. TOWN OF EDWARDSVILLE. a1
• Court: Alabama Supreme Court

38 So. 1016

143 Ala. 182

EQUITABLE LOAN & SECURITY CO. v. TOWN OF EDWARDSVILLE. a1

Supreme Court of Alabama

February 7, 1905

Appeal from Cleburne County Court; T. J. Burton, Judge.

Action by the Equitable Loan & Security Company against the town of Edwardsville. There was a judgment for plaintiff, on which an execution was issued. From a judgment vacating the levy plaintiff appeals. Affirmed.

H. D McCarty and H. D. Merrill, for appellant.

Blackwell & Agee, for appellee.

DENSON J.

The Equitable Loan & Security Company recovered a judgment against the defendant, town of Edwardsville, a municipal corporation, in the county court of Cleburne county, on the 18th day of October, 1900, in the sum of $803.43. On the 1st day of April, 1902, an execution was issued on the judgment and was on the 31st day of July, 1902, levied on a stock of spirituous and malt liquors, as the property of the town of Edwardsville. On August 1, 1902, the defendant filed a motion to vacate the levy made under the execution upon the ground that the property levied on was property used by the defendant in its corporate capacity for municipal purposes, in that said property was used in the conduct of a dispensary under an act of the Legislature approved February 18, 1899. The act referred to is entitled "An act to authorize municipal and other subdivisions of the state to levy and sell spirituous, vinous or malt liquors, and to further regulate or prohibit the sale of such liquors," and is found in the general acts of the Legislature, session 1898-99, at page 108. It is alleged in the motion that the dispensary was conducted and carried on at a profit for the purpose of raising revenue, and the revenue arising from it was used exclusively for municipal purposes, and that the revenue so derived was necessary to pay the ordinary municipal expenses of the defendant. The plaintiff moved to strike the motion to vacate the levy, and also demurred to it, the motion and demurrer were overruled, and the court rendered judgment in favor of the defendant vacating the levy.

The question now presented for our determination is whether a stock of spirituous, vinous, and, malt liquors owned and used by a municipality as stock in trade in conducting and carrying on a dispensary is property used for municipal purposes in such sense as will, under section 2040 of the Code of 1896, exempt it from levy and sale under execution issued on a judgment obtained against the municipality. "Municipal corporations are created for public governmental, and political purposes, and it is a corollary of this proposition that all property, of whatever nature, held by them in trust for carrying out such purposes, should be exempt from seizure and sale under execution." Tiedeman on Municipal Corporations, § 375, p. 765. "In some of the states it is held that the private property of municipal corporations--that is, such as they own for profit, and charged with no public trusts or uses--may be sold on execution against them." 2 Dillon's Municipal Corporations (4th Ed.) § 576, p. 673. The doctrine as laid down by Mr. Dillon has been approved by this court in the case of Mayor and Aldermen of Birmingham v. Rumsey & Co., 63 Ala. 352. Judge Stone, in the case cited, uses this language: "We do not hesitate to declare that city property, owned or used by the corporation for public purposes, such as public buildings, public markets, hospitals, cemeteries, engine houses, fire engines and their apparatus, and other property, real or personal, of kindred utility, cannot be taken in execution for debts of the city. But if the city owns private property, not useful or used for corporate purposes, such property may be seized and sold under final process, precisely as similar property of individuals is seized and sold." In the second edition of the Am. & Eng. Ency. Law, on page 1190, the law is thus stated: "So the property of a municipal corporation which is essentially public in its nature, and is held in trust for the public by the corporation, and is necessary for the exercise of its proper municipal functions, cannot be sold to satisfy the debts of the corporation. But the private property of a municipality, held for purposes of income or sale, unconnected with any governmental use or function, may be levied on and sold to satisfy a judgment rendered against the municipal corporation." The act of the Legislature above referred to, and under which the dispensary was established and conducted by the defendant in this case, has undergone judicial construction by this court, and was upheld. Sheppard v. Dowling, 127 Ala. 1, 28 So. 791, 85 Am. St. Rep....