Cleveland School Furniture Co. v. City of Greenville

• Decision Date: 20 January 1906
• Parties: CLEVELAND SCHOOL FURNITURE CO. v. CITY OF GREENVILLE.
• Court: Alabama Supreme Court

41 So. 862

146 Ala. 559

CLEVELAND SCHOOL FURNITURE CO. v. CITY OF GREENVILLE.

Supreme Court of Alabama

January 20, 1906

On Rehearing, June 30, 1906.

On Rehearing.

Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.

"To be officially reported."

Action by the Cleveland School Furniture Company against the city of Greenville. From a judgment for defendant, plaintiff appeals. Affirmed.

This was an action on a promissory note for the sum of $790 executed by defendant on the 10th day of July, 1896, due and payable five years after date, with interest payable annually from the 7th day of January, 1895. The pleas were the general issue and, first, want of consideration; ultra vires; that the debt was of one Perdue, and not of the city; that it was for school furniture furnished the school district of the city of Greenville, and was therefore without consideration. The plaintiff filed replication setting up the facts of the furnishing of the furniture to the schools, the use of it by the citizens of Greenville, the issuance of the warrant by the city to Perdue in payment thereof, a transfer of the warrant so issued to Perdue by him to appellant, the presentation of the warrant so issued to the city council for payment, the making of the notes sued on by the city council by ordinance or resolution, the surrender of the warrant to the city council upon the delivery of the note, the retention of the warrant so issued to Perdue by the city council, and the failure to pay. Demurrers were sustained to this replication. The facts disclosed by the record are that the city council of Greenville, under the authority of an act of the Legislature, issued bonds for the purpose of securing a school lot, erecting school buildings thereon, and furnishing the same. The bonds were sold and put in the hands of a special treasurer. A lot was purchased, and a contract for building and furnishing a schoolhouse was let to James H Perdue. Perdue purchased the furniture from appellant and put it in the schoolhouse. The city council issued warrants on the special treasurer in favor of Perdue, one for $790, which was transferred by Perdue to appellants in payment of the debt for the furniture. The warrant was presented for payment, and the reply was, "No funds available for that purpose." The council then passed a resolution authorizing the execution of the note sued on. When the note was executed the warrant was delivered to the city council and has ever since been retained by the city. A payment of eighty odd dollars was made upon it, and no further payments have ever been made. At the conclusion of the evidence, the court gave the general affirmative charge for defendant. There was verdict and judgment for defendant, and the plaintiff appeals.

Tyson Dowdell, and Simpson, JJ., dissenting.

D. M Powell, for appellant.

J. M. Chilton and R. E. Steiner, for appellee.

ANDERSON, J.

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable." New Decatur v. Berry, 90 Ala. 432, 7 So. 838, 24 Am. St. Rep. 827; 1 Dillon on Muni. Corp. § 89; Smith v. Newbern, 70 N.C. 14, 16 Am. Rep. 766; Cook County v. McCrea, 93 Ill. 236; Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Eufaula v. McNab, 67 Ala. 590, 42 Am. Rep. 118. City of Mobile v. Electric Street R. R. (Ala.) 38 So. 127. The city of Greenville had no authority to execute the note sued on or to make the debt, which it evidences, a legal charge against the general fund of the municipality. No such authority was given the municipality by its charter. Acts 1870-71, p. 121. Nor by section 2950 of the Code of 1896 and Acts 1886-87, pp. 629, 1009. Police Jury v. Britton, 15 Wall. (U. S.) 556, 21 L.Ed. 251; Blackman v. Lehman, Durr & Co., 63 Ala. 550, 35 Am. Rep. 57; Garland v. Board of Revenue, 87 Ala. 223, 6 So. 402; Woolf v. Taylor, 98 Ala. 257, 13 So. 688; Webb v. City of Demopolis, 95 Ala. 131, 13 So. 289, 21 L. R. A. 62.

In deciding that the suit cannot be maintained against the municipality, we do not wish to be understood as holding that the claim in question could not be paid out of the fund provided by Acts 1886-87, p. 1012, § 10, under the direction of the board of education. Since the power to contract this debt was not granted in express words, we cannot hold that it is a power to be implied as incident to the objects and purposes of the corporation. Educational institutions are not regarded as necessarily belonging to municipal government. "They are important and contribute greatly to the well-being and prosperity of any town or city, as do public buildings, charitable institutions for taking care of the sick, and other like institutions, but all such are of a class and constitute subjects, not germane to municipal organization." Woolf v. Taylor, 98 Ala. 254, 13 So. 688.

The matters set up in the replication as an estoppel are facts that should appeal to the moral sensibilities of the board of education, or even to parents, whose children have and doubtless will continue to use the desks and seats, but cannot estop the defendant by acts of ratification from repudiating or disputing an ultra vires act or contract. Wetumpka v. Wetumpka Co., supra; Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118.

The trial court committed no error upon the ruling on the pleading; and, as the special pleas were proven, the general affirmative charge was properly given for the defendant.

The judgment of the circuit court is affirmed.

McCLELLAN, C.J., and HARALSON and DENSON, JJ., concur. TYSON, DOWDELL, and SIMPSON, JJ., dissent.

On Rehearing.

WEAKLEY C.J.

When the majority opinion was promulgated, three of the justices dissented. Upon the application for rehearing, there remained an equal division among those justices who participated in the decision; and, as the fate of the appeal depended upon the conclusion the writer might reach, he has given the briefs of counsel careful consideration. The result is that he is unable to escape the conclusion at which the majority of the court arrived, as expressed in the opinion of Mr. Justice ANDERSON, however much he may desire the appellant to realize upon its claim. The reasoning by which he is led to this conclusion is the following:

This court has always strongly maintained the doctrine, both as to private and municipal corporations, that contracts made by or with them, outside the pale of their corporate authority confer no right, and that neither the making of an ultra vires contract nor the receiving of its benefits estops the corporation from setting up its invalidity. Chewacla Lime Works v. Dismukes, 87 Ala. 344, 6 So. 122, 5 L. R. A. 100; Sherwood v. Alvis, 83 Ala. 115, 3 So. 307, 3 Am. St. Rep. 695, and authorties there cited; New Decatur v. Berry, 90 Ala. 432, 7 So. 838, 24 Am. St. Rep. 827. In Allen v. Intendant and Councilmen of Lafayette, 89 Ala. 641, 8 So. 30, 9 L. R. A. 497, it was held that, although the town had no authority to borrow money or issue warrants for its repayment, yet, having by its charter express authority to maintain public schools and to purchase real estate for corporate purposes, and the borrowed money having been used to aid in paying for a school lot, the town was liable for the amount, without reference to the warrant; and hence the decision was that a taxpayer could not in equity enjoin...