Inge v. Board of Public Works of Mobile

Decision Date22 January 1903
Citation135 Ala. 187,33 So. 678
PartiesINGE ET AL. v. BOARD OF PUBLIC WORKS OF MOBILE.
CourtAlabama Supreme Court

Appeal from chancery court, Mobile county; Thos. H. Smith Chancellor.

Suit by Richard Inge and others against the board of public works of Mobile. From a decree in favor of defendant, complainants appeal. In part reversed and rendered, and in part modified and affirmed.

The bill was filed by Richard Inge and others, as taxpayers of the city of Mobile, against the board of public works in charge of municipal improvements in the city of Mobile, and against the individual members thereof, seeking to have enjoined the payment of any moneys of the city upon two certain unperformed contracts for paving in the city of Mobile; one of said contracts being for the paving of certain streets with asphalt, and the other for paving certain other streets with brick. The two contracts were set out as exhibits to the bill, and are distinct from each other, but were let at the same time, and to the same contractor. The grounds for enjoining the payment of moneys under the contracts are that the contracts are void--void for matters of invalidity within themselves, and also because of the invalidity of the statutory system of making and paying for such improvements. The averments of the bill and stipulations of the contracts assailed are sufficiently shown by the opinion. There was a motion to dismiss the bill for want of equity, and demurrers were also interposed to the bill as follows: "First. Defendants demur to so much of the bill as charges that the asphalt paving contract therein mentioned was not awarded to and made with the lowest responsible bidder therefor, upon the ground that the bill shows that the board of public works did sufficiently determine the bid upon which said contract was awarded to be the lowest responsible bid made therefor, and fails to show that, in the exercise of its discretion to so determine, said board was guilty of fraud or misconduct. Second. And defendants demur to so much of said bill as alleges that said board failed to adjudicate that the bid for the said asphalt paving contract, made by said Southern Paving & Construction Company, and accepted by said board, was the lowest responsible bid therefor, upon the grounds (1) that it appears in and by said bill that said board did in fact sufficiently so determine; (2) that it appears in and by said bill that said board accepted said bid, and awarded said contract upon the same, and that such facts constitute a sufficient determination by said board that the same was the lowest responsible bid. Third. And the defendants demur to so much of said bill as alleges the offer made by the counsel of the Southern Paving & Construction Company, and the inclusion of said offer in the written contract for asphalt paving, upon the grounds (1) that said offer, and the contract made thereon, did not operate to relieve said company from any of its obligations to the city of Mobile covered by its bid, but were an additional burden upon the company, and the same do not tend to establish that said bid was not that of the lowest responsible bidder; (2) that it does not appear by the bill that said offer and the contract made thereon were in any way to the prejudice of the complainants. Fourth. And defendants demur to so much of said bill as charges that said board required by its specifications for bids, and by the contracts made thereunder, that the contractor shall be responsible for damages to persons and property along the line of the work upon the grounds (1) that such stipulation was reasonable and proper for the protection of the city of Mobile, and the persons who might sustain the injuries specified within such contract of liability; (2) that such stipulation did not subject the contractor to any liability beyond that for misfeasance and nonfeasance of itself and its servants, and that it was reasonable and proper that the same should be specially stipulated for, that it might be clearly secured by the general bond required of the contractor. Fifth. To so much of said bill as charges that said board required by its specifications for bids, and by the contracts made thereunder, that 'no convict, alien or unnaturalized labor shall be employed upon the work; with the exception of skilled mechanics, no labor shall be imported without the consent of the board of public works,' upon the grounds (1) that such stipulation was reasonable and proper; (2) that it is not shown by the bill that the effect of such stipulation, as a part of the contract, was necessarily or probably to increase the cost of the execution thereof. Sixth. To so much of said bill as charges that the provisions of the act of the General Assembly of March 5, 1901 providing for the paving of the city of Mobile, are in conflict with the existing Constitution of Alabama, and are void, upon the following grounds: (1) That it is shown by the bill that the money necessary for the paving covered by the contracts therein assailed has already been provided by the sale of bonds of the city of Mobile, and that the liability of abutting property holders to contribute to the fund necessary for the payment of said bonds is a question affecting the adequacy of the provisions for the redemption of such securities, and not the use of the money provided thereby; (2) that the provisions of the said act for such contribution by abutting property owners, as set forth in the bill, are not inconsistent with the constitutional restriction therein set out; (3) that section 92 of said act of March 5, 1901, makes the following further provision as to such assessments against abutting property holders: 'That if for any reason any assessment or any part thereof should be invalid or incapable of enforcement, this shall not absolve the property owners and the property from the indebtedness due for said paving or improving, but said board shall proceed to make a new and valid assessment in accordance with the law and the facts in whole or in part as may be necessary'--which provision secures a lawful assessment under the Constitution, and valid laws regulating the same, if more specific provisions of said act for such assessment are wholly or in any respect invalid or incapable of enforcement. Seventh. To so much of said bill as charges that the city of Mobile will not be able to pay the cost of such paving without contribution from abutting property owners, upon the following grounds: (1) That the question thereby presented is not a matter for judicial decision or action, but only for legislative consideration in the matter of granting authority to the city of Mobile to issue and sell its bonds, and use the proceeds thereof for paving; (2) that the said question is pertinent only to the authority of the city of Mobile to issue and sell its bonds for paving purposes, and not to its right to use for such purposes money in hand, the proceeds of such bonds already issued and sold." From a decree sustaining said motion and demurrers, complainants appeal.

E. L. Russell and Fitts, Stoutz & Armbrecht, for appellants.

B. B. Boone and R. H. & N. R. Clarke, for appellee.

DOWDELL J.

The bill in this cause was filed by Richard Inge and others, appellants here, as taxpayers of the city of Mobile, and abutting property owners on certain named streets of said city, included in the paving contracts, which are made an exhibit to the bill, and which were entered into on September 6, 1902, between the board of public works of the city of Mobile and the Southern Paving & Construction Company, a body corporate. The bill assails the validity of said contracts, and seeks to have the same decreed null and void. The cause was heard before the chancellor on demurrer to the bill, and motion to dismiss the same for want of equity; and from his decree sustaining the demurrer and motion, and dismissing the bill, the present appeal is prosecuted.

In our consideration of the questions raised, we do not propose to follow counsel into all of the phases presented in arguments oral and written, but prefer to lay down the principles which we think control, and state our conclusions in as brief a manner as practicable.

In the outset, we think it may be safely stated, as a general proposition, that a taxpayer may seek the aid of a court of equity and relief by injunction where the municipal authorities are about to issue illegal warrants or scrip, or to misappropriate public funds, or to abuse corporate powers. 1 Dillon, Mun. Corp. § 504; 2 Dillon, Mun. Corp. §§ 914, 921. So, also, may courts of equity, on bills filed by taxpayers, enjoin the improper creation of debts. 2 Dillon, Mun. Corp. § 916.

There were two contracts entered into between the board of public works and the Southern Paving & Construction Company--one for paving certain named streets with vitrified brick, and the other for paving certain other named streets with asphalt. The alleged infirmities averred in the bill, common to both contracts, are, first, that the contracts contained improper stipulations, imposing upon the contractor a responsibility and liability for damage to persons and property beyond his liability for torts in his own business, or growing out of the nature of the work contemplated; second, that the contracts contained improper restrictions upon the kind of labor that might be employed by the contractor; and, third, that the provision of the charter of the city of Mobile regulating the assessments against abutting property owners for the improvement of the streets is different from, and in conflict with, the provisions of the new Constitution of the state, prescribing a system of assessment.

It is furthermore alleged in the bill that the contract for the asphalt paving...

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