Fuller v. Knight

• Decision Date: 22 May 1941
• Docket Number: 6 Div. 862.
• Citation: 2 So.2d 605,241 Ala. 257
• Parties: FULLER v. KNIGHT et al.
• Court: Alabama Supreme Court

2 So.2d 605

241 Ala. 257

FULLER v. KNIGHT et al.

6 Div. 862.

Supreme Court of Alabama

May 22, 1941

Asa B. Fuller, of Cullman, for appellant.

St John & St. John, of Cullman, for appellees.

THOMAS Justice.

The appeal is to review the action of the lower court in rendering a declaratory judgment upon the agreed statement of facts as set out in the pleadings aided by exhibits made a part thereof.

During the year 1913, an election was duly called and held in Cullman County to vote upon the proposition of whether or not the voters of said county favored the issuance of bonds of said county to the amount of $200,000, bearing interest at not exceeding the rate of five per cent per annum, payable semiannually, to run for thirty years, for the purpose of constructing public roads in said county. At said election a majority of the voters of said county voted in favor of the issuance of said bonds in said amount, and thereafter, acting upon said authority, the county duly executed $160,000 principal amount of bonds so authorized which bonds so issued were dated July 1, 1913, to mature July 1, 1943. In the proceedings of the governing body of the county under which the bonds were issued, it was recited that the remaining $40,000 of bonds authorized at said election would be subsequently issued for the same purpose, if the public good required such action, when the indebtedness of the county should be reduced so that the same might be issued within the constitutional debt limit of the county, at such time as the governing body of the county might deem it proper to issue the same. Said remaining $40,000 of bonds so authorized have never been issued by the county until the present time. On April 14, 1941, at a regular meeting of the Board of Revenue of Cullman County, a resolution was adopted authorizing the issuance of said additional $40,000 principal amount of bonds so authorized at said election, and finding that a public need for the issuance of said bonds existed for the purpose as originally authorized and that the indebtedness of the county had been reduced to an amount that the issuance of said bonds is within the constitutional debt limit of said county. This bill was filed by the appellant as a taxpayer, resident and citizen of Cullman County, for a declaratory judgment. After a hearing on pleadings and proof the lower court rendered a decree in favor of the respondents and cross-complainants, upholding the validity of said bonds, and the issuance and sale thereof, and from which decree this appeal is prosecuted.

The question for decision is, since Cullman County issued $160,000 of the $200,000 principal amount of road improvement bonds, duly authorized by the people to be issued as of March 17, 1913, can the remaining $40,000 of said original authorized bond issue now be issued and sold for the same purpose, time and tenor, after the lapse of twenty years?

Appellee thus states the question. There is no inhibition of the constitution or statutes of this state that will prevent the issuance and sale of said bonds, or from applying the proceeds as prescribed by law under the decision of Stokes v. City of Montgomery, 203 Ala. 307, 82 So. 663; and that the "twenty year rule of repose" is not applicable to the action of public bodies in matters involving the issuance of bonds where a valid authorization is given by the people. In the Stokes case, supra, the facts and holding are succinctly stated in the headnotes, as follows:

"The city of Montgomery in 1908 had ample authority to aid, establish, set up, and regulate hospitals for the city, and to issue and sell bonds for such purposes, an election having been held in which the establishment of a hospital and the issuance of bonds for such purposes was voted for, under Acts 1907, p. 865, § 143 (Code 1907, § 1277) Gen.Acts 1903, p. 59 (Code 1907, § 1421).

"Where, in an election in 1908, it was voted in the city of Montgomery that the council be authorized to issue bonds to establish a hospital, there was nothing to prevent the issuance of the bonds in 1919, and the establishment of the hospital, not-withstanding that the form of government was changed in 1911 and is now governed by a board of three commissioners * * *.

"Gen.Laws 1919, p. 57, limiting the time for attacking validity of elections held by a municipality for the purpose of issuing bonds or levying taxes, is remedial and retroactive, and applies to the election of December 14, 1908, in the city of Montgomery, in which it was voted to authorize the city to issue bonds to establish a hospital, and it was proper to issue such bonds in 1919."

We find no case in the books where twenty years or more had elapsed between the authorization of the original issue or an installment thereof, such as is now proposed.

The object and purpose of the bond issue now proposed is for the same purpose as originally authorized. The bonds as proposed are of like tenor, except as to a reduction of the interest rate, and the consummation date is within the original thirty-year period, duly authorized by the electors of Cullman County.

The decision in Stokes v. City of Montgomery, 203 Ala. 307, 82 So. 663, has not been questioned or qualified, but was cited with approval in Johnson v. City of Sheffield et al., 236 Ala. 411, 183 So. 265, and Town of Camden v. Fairbanks, Morse & Co., 204 Ala. 112, 86 So. 8.

In 25 A.L.R. 613, the case of Stokes v. City of Montgomery, supra, is cited, to the effect that it appeared that "a statute in force in 1908 expressly authorized a city to issue and sell bonds for the building of a hospital. A city election in that year was called and held in conformity with the statute; and a majority of the votes were cast in favor of issuing bonds for a hospital. In 1909 the statute was replaced by one providing for the construction of public buildings by a city. The bonds for the hospital were not issued until the year 1919, when the city council provided for the issue and sale of the bonds. It was held that neither the change in the statute, nor the lapse of time between the election and the provision of the council for the issue and sale of the bonds, was a ground for enjoining the proposed issue and sale."

Counsel for appellant cite many authorities to the effect that because of the lapse of twenty years between the authorization for and issuance of the bonds, the authority contained in the election is not effective. We will now examine the important cases cited to this effect.

In Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820, the action was by decedent's first wife to set aside a divorce decree obtained by her husband more than twenty years before, and it was held that the rule of prescription (20-year period) was not avoided because complainant had been insane. The case of Wilson v. Holt, 83 Ala. 528, 3 So. 321, 3 Am.St.Rep. 768, also touched rights under a divorce.

In Scott v. Scott, 202 Ala. 244, 80 So. 82, the rule of prescription was applied to all claims or rights of property which had been permitted to slumber without assertion or recognition for twenty years, and the same rule was applied in Kidd et al. v. Browne, 200 Ala. 299, 76 So. 65, as affecting property rights. So of Matthews v. McDade, 72 Ala. 377; Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732; Kidd et al. v. Borum, 181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226. In Knabe v. Burden, 88 Ala. 436, 7 So. 92, it was held that where a patent by the state is issued to a sixteenth section of land more than 20 years previous, prescription will be indulged that the tract had been duly selected and set up by the officer and designated for that purpose in the act under which the patent was issued.

In Semple v. Glenn, 91 Ala. 245, 6 So. 46, 9 So. 265, 24 Am.St.Rep. 894, it was held that where a call had not been made for 20 years on stockholders for the payment of their subscriptions to stock in a corporation, presumption of payment would arise.

It will be observed from the foregoing authorities that the question here presented has not been dealt with. That touching the selection and setting apart of sixteenth section land tended to support the view of appellee as touching the action of state authorities for lands held in trust by the state under a grant from the Federal Government.

In City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408, the bill was in equity by a municipal corporation for injunction against obstruction of streets and river landings that had long prevailed, and the injunction was filed more than 20 years after the adoption of the plan and map of the city, and the same was abated.

The rule of repose or prescription is a bar, not to the exercise of the right or power, but is the public policy that intervenes and prevents the enforcement of that right or power.

The right of counties and municipalities to maintain highways and to bring actions to remove unnecessary obstructions from highways or streets, regardless of the time the nuisance may have been imposed, is recognized by authorities. In 65 A.L.R. 704, it is said:

"'It does not seem a forced inference from such express powers given to a corporation to hold that, by necessary implication, they also possess the right, on behalf of the municipality to come into the commonwealth's courts for relief and protection when an encroachment of a public street is committed or threatened, which it is beyond their expressly granted powers to vindicate or arrest. Such a right apparently flows from the very end and object of the creation of the corporation.' Moyamensing Com'rs v. Long (Pa.) supra [1 Pars.Sel.

Eq.Cas 143]. And to the same effect see Demopolis v. Webb (1889) 87 Ala. 659, 6 So. 408, in which the court said: 'It is peculiarly appropriate, in our judgment,...