Keene v. Jefferson County

• Decision Date: 20 January 1903
• Citation: 135 Ala. 465,33 So. 435
• Parties: KEENE v. JEFFERSON COUNTY ET AL.
• Court: Alabama Supreme Court

33 So. 435

135 Ala. 465

KEENE v. JEFFERSON COUNTY ET AL.

Supreme Court of Alabama

January 20, 1903

Appeal from chancery court, Jefferson county; John C. Carmichael Chancellor.

Bill to enjoin a county bond issue by Madeline Keene against Jefferson county and another. From a decree for defendants complainant appeals. Affirmed.

The bill in this case was filed by the appellant, Madeline Keene as a resident citizen and taxpayer of Jefferson county against Jefferson county and the Jefferson county sanitary commission. It was averred in the bill that at the session of the general assembly of Alabama of 1900-1901 there was an act passed making Jefferson county a sanitary district and establishing a sanitary commission therefor; that the commission so created was called the "Jefferson County Sanitary Commission," which was composed of 11 members resident citizens of Jefferson county; that it was provided in said act that said commission should act for Jefferson county, and that all contracts made by said commissioners should be made in the name of Jefferson county and that all transactions of said commission should be in the name of Jefferson county; that the object and purpose of the enactment of said law and the organization of said commission was to procure the construction, at the expense of the taxpayers of Jefferson county, of a sanitary sewerage system, "extending from a point at or near the town of East Lake to a point below the town of Ensley in said county, and also a main or trunk line of sanitary sewer at or near the city of Birmingham to a point below the city of Bessemer in said county," and also to procure the maintenance of said sewers at the expense of Jefferson county; that under said act the commission was given all the powers and rights necessary to carry into effect the purposes thereof, and it was provided therein for the construction of sanitary drainage of the thickly populated portion of Jefferson county, and of the various towns situated therein. It was then further averred in the bill that at the same session of the general assembly of Alabama, there was passed an act to authorize and require the board of revenue to issue negotiable bonds of said county to the amount of not exceeding $500,000 for the purpose of providing sanitation in said county and to require said board of revenue to levy and set aside a county tax of one-twentieth of 1 per cent. to provide for the payment of interest on said bonds, and provide a sinking fund for said bonds and for maintaining a sanitary system and protecting water supplies; that this act was approved on February 28, 1901. The further provisions of these two acts are sufficiently stated in the opinion.

It was further averred in the bill that in pursuance of the authority granted by said acts, the sanitary commission had proceeded towards the construction of a sanitary sewerage in the portion of Jefferson county designated in said special acts, and that the board of revenue of said county were providing for the issuance of the bonds as required under said act. It was then averred that the said act of the general assembly creating said commission and the act authorizing the issuance of the bonds were both local and special laws, and that no notice of the intention to apply to the general assembly for passage thereof was published in Jefferson county as required by the constitution. It was further averred that the county of Jefferson as a political and civil division of the state has no authority to build said sewerage because the building thereof is not a county or governmental undertaking and that it is proposed in the construction of the sewerage to build it in a limited portion of the county while the burden of its construction rests upon all the citizens of the county. It was further averred that the imposition of a tax of one-twentieth of 1 per cent. was unconstitutional and void.

The prayer of the bill was that the county of Jefferson and the Jefferson county sanitary commission be forever enjoined from issuing, selling, or delivering the bonds authorized under said act, and that said acts be declared unconstitutional, null and void. There was also a prayer for general relief.

The respondents answered the bill admitting the general averments of the bill but denying that said bill was for the exclusive benefit of a certain portion of the county, or that it was increasing the tax rate authorized under the constitution, and denying further that said bill was unconstitutional and void. It was averred in said answer that the purpose and object of the enactment of said law was to preserve the public health of the citizens of Jefferson county and that the sewerage proposed to be constructed would be built through the most populous portion of said county and that the drainage caused thereby would result in benefit to all of the citizens of said county, and that the carrying out of the purpose of said acts as provided for therein would result to the general good of all the citizens.

It was agreed that the facts stated in the bill, in so far as admitted in the answer, and the facts set up in the answer, were true and should be considered as proven in the trial of said cause.

The cause was submitted for final decree upon the bill and answer and upon the written agreement of counsel, and the chancellor decreed that the complainant was not entitled to the relief prayed for and ordered the bill dismissed. From this decree the complainant appeals, and assigns the rendition thereof as error.

Weakley & Weakley, for appellant.

E. J. Smyer, J. M. Gillespie, and James Weatherly, for appellees.

HARALSON J.

1. Before the adoption of the constitution of 1875, the legislature had the power to authorize a county to contract debts, in the promotion of railroad and other enterprises of a public beneficial nature, not violative of the constitutional restrictions in behalf of life, liberty and property, and to authorize the levy of taxes for their payment. "The power, then, in the legislature, to authorize the counties of the state to make contracts, to own property and incur obligations, is" (as was said in Ex parte Selma & G. R. Co., 45 Ala. 727, 6 Am. Rep. 722) "without limit, save such as policy and discretion may demand." Marengo Co. v. Coleman, 55 Ala. 605; Chambers Co. v. Lee Co., Id. 537; Mobile Co. v. Kimball, 54 Ala. 56; Slaughter v. Mobile Co.,...