Hamilton v. City of Anniston, 7 Div. 890.

• Decision Date: 21 November 1946
• Docket Number: 7 Div. 890.
• Citation: 248 Ala. 396,27 So.2d 857
• Parties: HAMILTON v. CITY OF ANNISTON et al.
• Court: Alabama Supreme Court

27 So.2d 857

248 Ala. 396

HAMILTON v. CITY OF ANNISTON et al.

7 Div. 890.

Supreme Court of Alabama

November 21, 1946

Ross Blackmon, of Anniston, and Horace C. Wilkinson, of Birmingham, for appellant.

W D. DeBardelaben and Richard B. Emerson, both of Anniston, for appellees.

R E. Jones, of Anniston, amicus curiae.

STAKELY, Justice.

This is an appeal from the order of the equity court denying complainant's application for a temporary injunction. § 1057, Title 7, Code of 1940. The bill was filed by J. C. A Hamilton (appellant) as a resident citizen and taxpayer of the City of Anniston, against the City of Anniston, a municipal corporation, J. F. King, President of the City Commission, and S. F. Street and A. H. Lee, Associate Members of the City Commission. The case was submitted in the lower court on the original verified bill of complaint, oral testimony and documentary evidence offered by the complainant and the stipulation of counsel.

The bill sets forth the minutes of certain proceedings of the City Commission of the City of Anniston, showing adoption of an ordinance. From this ordinance so adopted it appears that the City of Anniston owns and operates a hospital known as the Anniston Memorial Hospital and that it will be necessary for the city to construct a suitable building on the grounds of the hospital for use in connection with the administration and operation of the hospital. We quote from the ordinance as follows:

'Section 1. The Board of Commissioners (which is herein referred to as 'the board') of the City of Anniston (which is herein referred to as 'the city') in the State of Alabama has ascertained and determined that the following statements are true: In order to furnish appropriate offices, quarters laboratories and equipment for use in the administration and operation of the Anniston Memorial Hospital, which is owned and operated by the city, and for use by the staff and nurses employed in the operation of said hospital, and for use by the Board of Health of the city, it will be necessary for the city to construct a suitable building on the grounds of said hospital, * * *.'

It further appears from the ordinance that the estimated cost of the building has been ascertained to be $300,000, a sum which the city does not have presently available and will not have available for this purpose from its general revenues prior to completion of the project. It further appears from the ordinance that in order to finance the project the city is authorized to negotiate a temporary loan from T. U. Crumpton & Company in the sum of $300,000 to mature August 1, 1947, which shall be a general obligation of the City of Anniston. The details of the loan are provided for in the ordinance, including the form of the note, etc.

We also quote the following excerpts from the allegations of the bill:

'Fourth: Complainant avers that in conjunction with the execution of the said three hundred thousand dollar note of the City of Anniston, payable to T. U. Crumpton and Company on the first day of August 1947, together with interest thereon at the rate of two and three-quarters per cent per annum and as a part of the plan providing for the erection and equipment of what is called and designated by the terms of the said plan 'Doctors Building for the City of Anniston, Alabama, or Medical Arts Center,' it has been provided that there shall be issued a series of twenty-five year bonds of the City of Anniston, Alabama, bearing the rate of interest of two and one-quarter per cent, which bonds are to become the debt and unconditional binding obligations of the City of Anniston, said bonds to aggregate the sum of three hundred thousand dollars and to mature over a consecutive period of twenty-five years and to be secured by a pledge of the credit and faith of the City of Anniston, the proceeds of said bonds to be used to pay and discharge said note indebtedness * * *.'

Further allegations regarding the issuance of bonds are not set out, because by stipulation it appears that no bonds have been issued and that no action has been taken by the city looking to the issuance of bonds. Accordingly we do not regard the issuance of bonds as a matter now involved in the litigation.

'Sixth: Complainant further avers that the erection of said building is proposed to be made upon a site which now constitutes a part of the premises of the Anniston Memorial Hospital; that to erect said structure upon said premises would serve to create a lien against said Memorial Hospital premises which are now owned by the City of Anniston and that the incomes accruing to the City of Anniston from the operations of the said Doctors Building or Medical Art Center are to be merged and combined with any income accruing from the proposed Medical Art Center, thereby burdening the income from said Memorial Hospital with the further and additional burden to that which it now bears as security for said bonds. * * *.'

'Eighth: Complainant further avers that the erection and the construction of the said Medical Arts Building at the present time and under the present conditions that prevail with reference to the hospital facilities of the City of Anniston will be most improvident and unnecessary in this: * * *

'(D) The erection of said building is contrary to the Constitution and laws of the state of Alabama in that to do so would constitute 'Class Legislation,' it being true that the avowed purpose and ulterior motives of the City Commission is to provide office space for a special group of professional men, to do which constitutes an illegal exercise on the part of the City of Anniston of governmental functions.

'(E) Furthermore, even though all the physicians and dentists now residing in and practicing their professions in the City of Anniston should rent offices in the proposed Medical Arts Building the total rental received therefrom would be insufficient to liquidate a three hundred thousand dollar debt.

'(F) Furthermore, none of the city authorities of Anniston, Alabama, have received or contracted with a single physician or dentist to lease them space in said proposed structure. There are only at the present time _____ physicians in Anniston and 15 dentists in the City of Anniston. Hence the conclusion to be reached is, therefore, inevitable that the proposed erection of said building is not only illegal and contrary to law, but is improvident and an unjust and illegal invasion of the rights of the taxpayers of the City of Anniston. The statements set forth in Section One of the resolution passed by the Board of Commissioners of the City of Anniston, Alabama, to the effect that it had ascertained and determined the following statement of fact to be true, towit, 'In order to furnish appropriate offices, quarters, laboratories and equipment for use in the administration of the Anniston Memorial Hospital owned and operated by the city and for use by the staff and nurses employed in the operation of said hospital and for use of the Board of Health of the City, it will be necessary for the city to construct a suitable building on the grounds of said hospital, the estimated cost of which is ascertained to be three hundred thousand dollars,' are at variance with the true facts and are untrue.'

The bill further alleges that a contract has been made and entered into by and between Dethlefs and Hannon, contractors, and the City of Anniston, for the construction of the building. The alleged contract is set out in the bill and is alleged to contain, among other provisions, the following:

'This agreement made the 7th day of August in the year Nineteen Hundred and Forty-six, by and between Dethlefs and Hannon, hereinafter called the contractor, and the City of Anniston, hereinafter called the owner, WITNESSETH, that the Contractor and the Owner, for the considerations hereinafter made, agree as follows:

'Article 1. Scope of the work--The Contractor shall furnish all of the material and perform all of the work upon all the Drawings and described in the Specifications entitled 'Doctors Building for City of Anniston, Alabama, Southeast Corner Leighton Avenue and 10th Street,' excepting Elevators and Elevator Doors as specified under Section 17 of the specifications, pages 40 and 47, which are not a part of this Contract. * * *.'

'Article 6. The Contract Documents--The general conditions of the Contract, the specifications and the Drawings, together with this agreement, form the Contract, and they are as fully a part of the Contract as if hereto attached or herein repeated. The following is an enumeration of the Specifications and Drawings:

'Specifications bearing the title 'Doctors Building for City of Anniston, Alabama, Southeast Corner Leighton Avenue and 10th Street,' including General Conditions and pages No. One (1) through Sixty-eight (68), excepting pages Forty (40) through Forty-seven (47).

'Drawings One Through Fourteen, S-1 through S-1 and M-1 through M-8, bearing the title 'Commission No. 224, Doctors Building, Southeast Corner Leighton Avenue and 10th Street,' Anniston Alabama. * * *.'

Injunction is...