Griffin v. Jeffers

• Decision Date: 19 June 1930
• Docket Number: 7 Div. 957.
• Citation: 221 Ala. 649,130 So. 190
• Parties: GRIFFIN v. JEFFERS ET AL., BOARD OF REVENUE OF ETOWAH COUNTY.
• Court: Alabama Supreme Court

130 So. 190

221 Ala. 649

GRIFFIN v. JEFFERS ET AL., BOARD OF REVENUE OF ETOWAH COUNTY.

7 Div. 957.

Supreme Court of Alabama

June 19, 1930

Rehearing Denied Oct. 23, 1930.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill for injunction by T. S. Griffin against W. F. Jeffers, as chairman, and others as members, of the Board of Revenue and Etowah County, and the County of Etowah. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed and remanded.

H. T Bailey, and Motley & Motley, all of Gadsden, for appellant.

W. T Murphree, of Gadsden, and R. B. Evins, of Birmingham, for appellees.

BROWN J.

This bill is filed by a resident taxpayer against the county of Etowah and its board of revenue, and seeks to enjoin performance by the county of a contract entered into by it acting by and through the board of revenue and C. H. Kershaw by which the county engaged to lease and operate a toll bridge, for a term of thirty years, to be constructed by Kershaw or his assigns, across the Coosa river at Gilbert's ferry in said county.

At the time of entering into and approving the contract, and as a part of the same resolution, the board of revenue granted to Kershaw a franchise and license to construct and operate said toll bridge.

One of the grounds upon which the complainant seeks to enjoin the contract and have it declared void is that it violates the public policy of this state as declared in section 94 of the Constitution of 1901, in that the county of Etowah through and by said contract undertakes to lend its credit in aid of or to an individual or corporation in a scheme to construct a privately owned toll bridge.

The averments of the bill show that the estimated cost of the bridge is $138,000, and by the contract, to state its general effect, the county leases the bridge before it is constructed, and engages to operate it for a term of thirty years, paying, as a part of the annual rent therefor, $9,600 in monthly installments, this sum being referred to and treated in a subsequent stipulation of the contract as interest on the investment.

By another stipulation the county agrees to pay out of the proceeds of the tolls collected for the use of the bridge, an additional sum of $4,600 per annum as rent, with further provisions that, if the funds accruing from the tolls are not sufficient to pay said additional rent, the same shall be allowed to accumulate and draw 6 per cent. interest per annum.

By another stipulation in the contract the county agrees to pay as rent an additional amount equal to all taxes, state, county, municipal, school, or district, and to pay this on demand. The county also assumes the obligation to maintain and keep the bridge in repair, and to pay and hold the lessor harmless from all damage that may arise from the use of the bridge.

In addition to the several amounts as rent for the use of the bridge, the county agrees to keep the bridge insured and pay the premiums thereon, the insurance to be payable to the lessor or his assigns or mortgagees, as their interest may appear.

As appears from the allegations of the bill and a copy of the contract, which is made an exhibit thereto, it was clearly within the contemplation of the parties and their controlling purpose that the lease should be so assigned that the obligations and undertakings of the county would stand as security for money obtained to construct the bridge.

The contract stipulates:

"That the lessor shall have the right to transfer all rights under this indenture to a corporation, and upon assignment of his rights hereunder to a corporation and the giving of written notice of such assignment to the lessee, delivered to the Chairman of the Board of Revenue and Road Commissioners of Etowah County, Alabama, executed by the lessee, such corporation shall be deemed to succeed to all rights and liabilities of the lessor under this indenture, but the lessor shall, if so required by the lessee, be deemed a guarantor of the performance of the obligations of this indenture by such corporation. The rights hereunder shall also be assignable by any such corporation. In the event of such assignment, all references in this indenture to the lessor shall be construed to refer to such corporations.

"It is agreed that the lessor, or any assignee of the lessor, shall have the right to assign all or any part of the rights under this indenture as security for bonds, debentures and/or other securities, and that notice of such assignment delivered to the Chairman of the Board of Revenue and Road Commissioners of Etowah County, Alabama, in writing, shall constitute sufficient notice thereof to the lessee. Such assignment may provide that, subject to certain conditions, the assignee shall have the right to (a) receive all payments to be made by the lessee under the terms of this indenture, (b) in its name or in the name of the lessor to enforce all of the undertakings and obligations of the lessee, and/or (c) to succeed to all of the rights and privileges of the lessor hereunder; and the lessee

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