Board of Revenue of Covington County v. Merrill

• Decision Date: 23 April 1915
• Docket Number: 556
• Citation: 193 Ala. 521,68 So. 971
• Parties: BOARD OF REVENUE OF COVINGTON COUNTY et al. v. MERRILL
• Court: Alabama Supreme Court

68 So. 971

193 Ala. 521

BOARD OF REVENUE OF COVINGTON COUNTY et al. v. MERRILL

No. 556

Supreme Court of Alabama

April 23, 1915

Rehearing Denied June 3, 1915

Certiorari to Chancery Court, Covington County; R.H. Jones, Special Chancellor.

Suit by E.R. Merrill against the Board of Revenue of Covington County and others. There were orders and decrees holding defendants in contempt for violating an injunction in the suit, and defendants bring certiorari. Writ granted quashing orders and decrees.

Powell & Albritton, of Andalusia, and C.E. Hamilton, of Greenville for appellee.

THOMAS J.

The original bill was filed in the chancery court by E.R Merrill, as a resident citizen and taxpayer of Covington county, Ala., and sought an injunction against the board of revenue of that county and W.F. Simmons, J.A. Prestwood, John J. Deens, W.D. Powell, and W.N. Cook, the members thereof, to restrain them from accepting any bids on December 5, 1914, or at any time thereafter, after service of the writs upon them for the erection of a new courthouse in the city of Andalusia, Ala., and to restrain them and each of them from making or entering into any contract for the erection and construction of a new courthouse in the city of Andalusia, on the said 5th day of December, 1914, or at any time after the service of said writs of injunction upon them, until the further order of the court, and prayed that, on final hearing of said cause, said injunction be made perpetual, and that the contract between the board of revenue and one W.L. Stephens, architect, be declared null and void, and be canceled.

The fiat for the injunction was made, the prescribed bond given, and approved by the register, and the writ of injunction issued, on December, 4, 1914; and service of the injunction was had on W.F. Simmons, as president of the board of revenue and also as one of the board, and on J.J. Deens, W.D.

Powell, W.N. Cook, and J.A. Prestwood, as members of the board of revenue.

On December 5, 1914, W.F. Simmons, J.A. Prestwood, John J. Deens, W.D. Powell, and W.N. Cook, as members of said board of revenue, moved to dissolve the injunction, "for want of equity in the bill and on the sworn denials contained in the answer of the defendants in the cause."

The complainant, on December 11, 1914, amended the original bill by making parties defendant W.L. Stephens, Mrs. Anna W. Riley, and Dr. L.E. Broughton, and by adding, after the third paragraph of the bill, the following:

"Orator further alleges and charges that at the session of said board of revenue held on October 19, 1914, as herein above alleged, one of the lots ordered to be purchased for the location of the new courthouse was to be purchased from Mrs. Anna W. Riley, and the other lot, upon which the courthouse was to be located, was to be purchased from Dr. L.E. Broughton; the order of the board, as shown by the minutes, with reference to said purchase, being as follows: 'On motion, duly made, seconded, and carried, it is hereby ordered and decreed that those two lots on the north side of Court Square, in Andalusia, Ala., known, named, and called as the Mrs. Anna W. Riley property and the Dr. L.E. Broughton property, be bought for the location of a new courthouse for Covington county, and that Mrs. Anna W. Riley be paid the sum of $11,000 for said lot, with buildings thereon, said $11,000 to be paid in two equal annual installments of $5,500 each; and that Dr. L.E. Broughton be paid the sum of $6,500 for said lot, said $6,500 to be paid in two equal annual installments of $3,250 each. The first payment of the two equal annual installments to be due and payable on the purchase of both of said lots on April 1, 1915; said purchase to be subject to said Anna W. Riley and L.E. Broughton furnishing Covington county with good and satisfactory titles to said lots.' "

The amendment was duly verified and "allowed and filed December 11, 1914," according to the indorsement by "A. Whaley, Register." There was no leave of the court first had and obtained, nor order thereon that the bill be amended without prejudice to the injunction.

The question presented by the bill is that of jurisdiction of the chancery court to restrain the board of revenue from entering into the contracts for the building of a new courthouse for Covington county, specifically referred to in the bill. The petitioners for certiorari, board of revenue of Covington county, and J.A. Prestwood, W.D. Powell, and W.N. Cook, individually and as members of said board of revenue, and Falls City Construction Company, a corporation under the laws of Kentucky, on whose prayer was awarded the writ bringing this cause before this court for review, contend that the bill shows the want of jurisdiction of the subject-matter, and no right to grant the injunction.

The board of revenue of Covington county, Ala., was created by the Act of April 7, 1911 (Local Acts 1911, p. 231). By section 3 the board was given the authority to direct and control the property of said county "as it may deem expedient according to law." Section 4 confers "all the jurisdiction and all the powers which are now or may hereafter be by law vested in the courts of county commissioners of this state, and the several members of the said board of revenue of Covington county shall respectively perform all the duties and services and exercise all the powers which are or may be required by law of the several members of the courts of county commissioners." Section 8 provides that the board of revenue "shall hold four sessions annually, viz., on the second Monday in February, April, August, and November, respectively, of each year," and may hold a special session at any time, upon the call of the president or of any three members of the board, by giving notice by advertisement, for 15 days before such time, in a newspaper published in Covington county.

Boards of revenue and courts of county commissioners are courts of record of limited jurisdiction. Code 1907, §§ 3306, 3321. Such boards and courts have the same powers. Code, § 3321; Loc. Acts 1911, p. 231. They are by the statute clothed with full power to erect and maintain public buildings for the use of the county, and to levy taxes for the payment of their contracts in that behalf. By the Code of 1907 (section 130) the court of county commissioners has control of all property belonging to the county, and may by proper order direct the disposal of any real property which can be disposed of. Section 131 provides that the county buildings are to be erected and kept in order and repair, at the expense of the county, under the direction of the court of county commissioners, which court is authorized to make all necessary contracts for that purpose. Section 133 provides that the courts of county commissioners shall erect courthouses, jails, hospitals, and other necessary county buildings, and that they shall have authority to levy special taxes for such purposes. Sections 134 and 138 authorize such court to levy and collect such special taxes as it may deem necessary, not to exceed one-fourth of 1 per cent. per annum, for the construction of public buildings, bridges, and roads. Section 139 provides that this levy of special taxes for county purposes "shall be made by the court itself," and that the court "has authority to direct and control the property of the county as it may deem expedient according to law." Code 1907, § 3313. The terms of the sessions of the boards of revenue are fixed by the act of 1911 and by sections 2146, 3310, 3311 of the Code of 1907.

The powers conferred by the statute on

comissioners' courts and boards of revenue are full and explicit, committing to them authority and discretion in the management, control, maintenance, and construction of the public buildings of the county, and of its improvements, and in the general conduct of its business.

In Commissioners' Court v. Moore, 53 Ala. 25, 27, Chief Justice Brickell declared that the court of county commissioners is the repository of "the authority and jurisdiction, whether legislative, judicial, or executive, committed to the county," and that "this body is entitled a court of record." Jeffersonian Pub. Co. v. Hilllard, 105 Ala. 576, 578, 17 So. 112; State ex rel., etc., v. Rogers et al., 107 Ala. 444, 456, 19 So. 909, 32 L.R.A. 520; Banks v. Jefferson County, 119 Ala. 600, 24 So. 505.

The duty to erect and maintain public buildings for the county is mandatory on courts of county commissioners and boards of revenue; and, in the discharge of such duty, this court or board has the full right and power, not only to build county courthouses or to make contracts therefor, but to pass and allow the valid claims of architects, contractors, and others, accruing under contracts on such account made with the court or board. When it has discharged this duty by making contracts for public buildings or other improvements, such as the court may think necessary or sufficient, though the building or improvement may not be of the kind or character desired by the citizens, the county has spoken; and it is no ground for interference, by injunction, with any such contract honestly made and within the powers of the court, as defined by the statute, that the citizens of the county or a majority of them can be shown to disapprove the contract. Long et al. v. Shepherd et al., 159 Ala. 595, 598, 48 So. 675; Matkin v. Marengo Co., 137 Ala. 155, 34 So. 171; Hays v. Ahlrichs, 115 Ala. 239, 22 So. 465; Tally v. Com'rs, Jackson Co., 175 Ala. 644, 39 So. 167.

The power to maintain implies the power to build, according to the judgment of the board, to meet the necessities of the case. Allen v. Intendant & Councilmen of La Fayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497. Incidental to...