Henderson v. City of Enterprise

• Decision Date: 27 June 1918
• Docket Number: 4 Div. 792
• Citation: 80 So. 115,202 Ala. 277
• Parties: HENDERSON et al. v. CITY OF ENTERPRISE et al.
• Court: Alabama Supreme Court

80 So. 115

202 Ala. 277

HENDERSON et al. v. CITY OF ENTERPRISE et al.

4 Div. 792

Supreme Court of Alabama

June 27, 1918

Rehearing Withdrawn Nov. 14, 1918

Appeal from Circuit Court, Coffee County; A.B. Foster, Judge.

Suit by J.E. Henderson and others against the City of Enterprise and others. From the decree dissolving a temporary injunction complainants appeal. Affirmed.

Appellants (complainants in the court below) filed this bill against the city of Enterprise and its municipal officers, seeking injunctive relief against said city letting a contract for certain street improvements, including paving and storm sewage, etc., as disclosed was contemplated by the city by certain ordinances and resolutions made exhibits to the bill. The complainants are taxpayers and own property abutting the streets upon which said improvements are sought to be made.

On the 3d of January, 1918, an ordinance of the city of Enterprise was passed establishing the grades for certain distances on Carmichael, Easy, and Henry streets in said city. This ordinance is made an exhibit to the bill, and is as follows:

"That the grade of Carmichael street and the curbs on both sides thereof from the north side of the Hilliard building, now occupied by Dorsey Brothers' Garage, to the south side of the Byrd & Heath building, now occupied by Benson & Heath, and the grade of Easy street and the curbs on both sides thereof from Carmichael street to a point 184 1/2 feet east of Carmichael street, and the grade of Henry street and the curbs on both sides thereof from the tracks of the Atlantic Coast Line Railway to the west curb line of Edwards street in the city of Enterprise, Alabama, be and the same is hereby fixed and established as is shown by the profiles plans, maps and drawings of the city engineer of said city of Enterprise now on file in the office of the city clerk of said city."

The bill further shows on the same day the council passed what is referred to as Improvement Ordinance No. 1, sections 1 and 4 of which read as follows:

"Section 1. That the city council has hereby determined to improve Carmichael street from the north side of the Hilliard building, now occupied by Dorsey Brothers' Garage, to the south side of the Byrd and Heath building, now occupied by Benson & Heath, and Easy street from Carmichael street to a point 184 1/2 feet east of Carmichael street, and Henry street from the tracks of the Atlantic Coast Line Railway to the west curb of Edwards street, and the intersections of all intersecting streets and avenues between said points, be graded, curbed, and paved with vitrified paving brick together with suitable granite curbing and the necessary storm drains."

"Sec. 4. That storm water sewers shall be placed where necessary to properly drain said streets named in section 1 hereof."

Section 6 of said ordinance fixed January 23, 1918, as the day for hearing the objections to such proposed improvements. Section 7 adopted the drawings, plans, and specifications of the work, together with estimates prepared by the city engineer then on file in the office of the city clerk, requiring that the same remain on file for inspection, and estimating the cost of the improvement at $30,000. The following section provided for the publication of the ordinance for two successive weeks in a newspaper regularly published in the city.

The bill shows that by another resolution one Rylance was employed as an attorney for the city in connection with said improvements, and his compensation for such services agreed upon. It is further shown that on January 22, 1918 adjournment was had to January 28, by the city council, for the purpose of hearing objections. That on the latter date certain objections and protests were made, declaring that the improvements would be insubstantial and weak, that labor was high, and it was an inopportune time to make said improvements. It is further shown the objections were without avail, and the council ordered the street paving and other work provided for in Improvement Ordinance No. 1 be confirmed and made in accordance with the plans and specifications on file. On February 1, 1918, the council met for the purpose of receiving proposals and letting the contract for making such improvements. This ordinance, which was also made an exhibit to the bill, shows that notice was given on Thursday, January 31, 1918, for the reception of proposals and the letting of the contract, by publication in the newspaper published in the city of Enterprise. The bill alleges that the time was entirely too short to give notice for competitive bidding and opened the way for favoritism.

Complainants, on February 1, 1918, filed the original bill in this cause. Temporary injunction was issued and the bill was subsequently amended. Answer was filed denying the material averments thereof. Submission was had before the circuit judge sitting in equity, seeking to dissolve the temporary injunction for want of equity in the bill, and also upon the denials of the answer; affidavits were submitted by the respective parties, resulting in a decree dissolving the injunction. From this decree the complainants prosecute this appeal.

The equity of the bill is sought to be rested upon the ground of fraud, insufficiency in the matter of description of the improvements in the ordinances and resolutions, and upon the further ground that the contemplated cost of improvements will exceed $30,000, while the special benefits to be derived therefrom by the property owners will not exceed $5,000, thus leaving a difference of $25,000, which will become a liability against the city; and, as the city is already indebted to the full limit permitted by the Constitution, such indebtedness would be in excess of the constitutional provisions, and therefore should be enjoined. The bill shows that the city expects to issue bonds and sell the same to secure the funds with which to pay for said improvements.

The averments of the bill relied upon as constituting fraud may be summarized as follows: That the improvements will not be beneficial to any one; that the population of the city of Enterprise is 2,400 inhabitants; that its streets are in excellent condition, easily kept, and improvements not necessary; that it will cost many times as much as the increase in the value of the adjacent property; that the city is already indebted in excess of its constitutional limitation, and that the difference between the cost of the improvements and the increased value of adjacent property will become an illegal debt against the city; that 80 per cent. of the owners of abutting property oppose the improvements; that their objections were overruled; that the city proposes to sell bonds at 91 cents on the dollar, which is in violation of the law forbidding a sale at a discount; and, further, that the town employed the agent of the persons with whom it expects and proposes to contract for the improvements to represent and advise it in all things pertaining to the improvements, and such person has been active throughout; that, when it was finally resolved that the contract should be let, there was only one insertion in the newspaper in the city, and therefore sufficient notice for competitive bidding was not given; that unusual hurry characterized every move, and, although it is apparent the improvements will exceed many times the special benefits, the council contemplated to assess most of it upon the abutting property; that, notwithstanding all this, the municipal officers are undertaking to make the improvements.

The second ground of attack is the insufficiency in the ordinances of the description of the property to be improved. Two sections of the ordinance appear above. Section 5 of Improvement Ordinance No. 1 reads as follows:

"That the cost of constructing the aforesaid improvements shall be assessed and levied upon or against the lots or parcels of land abutting on said streets which are improved, between the

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