Gillespie v. Gibbs

• Decision Date: 13 June 1906
• Parties: GILLESPIE ET AL. v. GIBBS ET AL.
• Court: Alabama Supreme Court

41 So. 868

147 Ala. 449

GILLESPIE ET AL. v. GIBBS ET AL.

Supreme Court of Alabama

June 13, 1906

Appeal from Chancery Court, Cullman County; Wm. H. Simpson Chancellor.

"To be officially reported."

Bill by F. A. Gillespie and others against T. M. Gibbs and others. From a decree dismissing the bill, complainants appeal. Affirmed.

J. B Brown, for appellants.

George H. Parker, for appellees.

TYSON J.

This is the case of a bill filed by certain taxpayers of the municipality of the town of Hanceville, one of whom was an alderman of the said town, against the intendant and the other aldermen, to enjoin ultra vires acts of the corporation. The particular act complained of was the application of corporate funds to the repair and completion of school property owned by the Hanceville school district situated in the town, and the purchase of an additional lot for the said school. After an injunction had issued, the town authorities, recognizing the want of power to do the act complained of, revoked the orders under which they were directed to be done, and apparently abandoned the project, but immediately afterwards rented for a town hall a portion of the same schoolhouse for five years, and paid the rent for the whole term in advance, amounting to $250. Thereupon amendments to the bill were interposed, setting up these facts, alleging that they were a mere subterfuge for avoiding the injunction, and making new parties. Motions were made to strike the amendments as departures, to dismiss the bill for want of equity, and to dissolve and discharge the injunction and at the same time demurrers were interposed to the whole and to parts of the bill. The chancellor dissolved the injunction, struck the amendments, sustained the demurrers, and, finding in his decree that the bill could not be amended so as to give it equity and that complainants made no effort to amend, dismissed the bill. The appeal is brought by the complainants below to reverse this decree.

We do not doubt the right of one of the aldermen to join in his individual capacity as a taxpayer of the town with the other complainants to enjoin ultra vires acts by the town authorities and their officers. One does not lose his character and capacity and rights as a citizen by becoming an officer of the town in which he lives, and he by no means complains of himself by joining with others in the institution of a suit in his capacity as a citizen and taxpayer against the corporation and its officers other than himself. Nor do we doubt that the officers of the corporation engaged in the perpetration of ultra vires acts in behalf of the corporation are proper parties defendant to a suit to enjoin such acts, or to correct them. In such case there may be a personal liability in favor of the corporation, to be imposed upon the officers engaged in the illegal acts complained of. Nor does the fact that, after a suit has been instituted, complaining of ultra vires acts about to be done the corporation and its officers discover their error and revoke the orders under which the acts were directed to be done, and abandon the illegal scheme, afford any cause for the dismissal of a suit properly instituted to prevent the acts complained of, although such matters be set up as amendments to the bill as having occurred. McMinn v. Karter, 123 Ala. 502, 26 So. 649. Such acts of recantation by the corporation and its officers, as stated in the case cited, strengthened the case made by the original bill, and confirmed the title to relief therein alleged, and by no means have the effect of destroying the equity of the original suit. The amendment in this case, while it might not give the complainants any right to relief against the acts complained of therein, in reference to the renting of a portion of the schoolhouse as a town hall, on the ground that the municipal authorities have a legislative discretion in reference to such matters, which cannot be...