Kumpe v. Bynum

• Decision Date: 15 December 1908
• Parties: KUMPE ET AL. v. BYNUM ET AL.
• Court: Alabama Supreme Court

48 So. 55

158 Ala. 311

KUMPE ET AL. v. BYNUM ET AL.

Supreme Court of Alabama

December 15, 1908

Appeal from Chancery Court, Lawrence County; William H. Simpson Chancellor.

Bill for injunction by H. D. Bynum and others against J. C. Kumpe and others. The application having been set down for hearing pursuant to Code 1907, § 4528, and the chancellor having made his fiat for the issuance of the writ, defendants appeal. Affirmed.

G. O Chenault and J. M. Irwin, for appellants.

C. M. Sherrod, for appellees.

DOWDELL J.

This is a bill by resident taxpayers of the county against the probate judge and the county treasurer, and for the purpose of enjoining the issuance and payment of a warrant on the order of the board of revenue appropriating $2,000 out of the general fund of the county to aid in the construction and building of a "high school building." The application for the writ of injunction was set down for hearing by the chancellor under section 4528 of the Code of 1907, and on such hearing the chancellor made his fiat for the issuance of the writ. From this order the present appeal is taken, under section 4531 of the Code.

The power and jurisdiction of a court of equity on a bill by a taxpayer to enjoin the misappropriation of public funds by public officers is too well settled by the adjudications of this court to now admit of any doubt. This was determined in the case of Railroad Co. v. Dunn, 51 Ala. 128, cited by counsel for appellant. The case of Allen v. Intendant, etc., of La Fayette, 89 Ala. 641, 8 So. 30, 9 L. R. A. 497, is another, and in which it was said: "The right of the complainants to maintain this suit is, as a general proposition, fully supported by the authorities and not seriously controverted by the appellees." It is true that the cases above cited related to "municipal corporations"; but there can be no distinction in principle between those cases and the case at bar as to the question of jurisdiction of a court of equity. A county, as a corporate organization, is a governmental agency of the state, and in a sense a municipal corporation. In the case of Simpson v. Lauderdale County, 56 Ala. 64, in which the question of the power of the commissioners' court of the county to borrow money for the purpose of building a bridge was involved, it was said by this court, speaking through Brickell, C.J.: "We adopt, in reference to counties, what has been so forcibly said by Justice Bradley in reference to municipal corporations." Then follows a quotation from the opinion of Justice Bradley in the case of Mayor v. Ray, 19 Wall. 475, 22 L.Ed. 164, in reference to the powers, etc., of municipal corporations. We cite the above case as showing that principles applicable to municipal corporations in the exercise of corporate powers are alike applicable to counties, and logically the remedies in restraint of the abuse of such powers, in the absence of legislation, is the same; that is, by a bill in equity to enjoin. In High on Injunction (4th Ed.) vol. 2, §§ 1238, 1239, the right of taxpayers to go into a court of equity to enjoin the misappropriation of county funds by county officers is recognized. The case of Warren County v. Barr, 55 Ind. 30, is directly in point. We are clearly of the opinion that the chancery court in the present case was not wanting in jurisdiction.

The vital question in the case and on which the equities of the bill depend, is, Did the board of revenue of Lawrence county have the power and authority under the law to appropriate $2,000 out of the general fund of the county "to aid in the construction and building of a high school building" in said county? The board of revenue of Lawrence county has like powers and jurisdiction as courts of county commissioners of the various counties of the state. Loc. Acts 1898-99, p. 30. The power and control of county boards of revenue over county revenues is derived solely and exclusively from the state, and, where there is no constitutional provision, then only from legislative enactment. It is not pretended here that any authority can be found in our Constitution to sustain the alleged act of the board of revenue in making said appropriation. We are therefore to inquire whether any such statutory authority exists. In the case of Simpson v. Lauderdale County, supra, where the power of the court of commissioners to borrow money to pay for the building of a bridge over a stream within the county was involved, it was said: "It would be a departure from the statutes, which clearly define the powers of counties and prescribe their duties and liabilities, to imply a power of borrowing money. No necessity for the implication exists, and the legislative history of the state, which abounds with special enactments conferring the power wherever it has been deemed necessary, forbids it." The power existed under the general statutes to build necessary bridges, but under the above decision carried no implication of the power to borrow money for such purpose.

In support of the power and authority of the board of revenue in the present case to make the alleged appropriation, we are cited by counsel for appellants to the following statutes: Sections 133, 134, 138, and 158 of the Code of 1907; also article 20, c. 41, p.

786, of the same Code, containing sections 1861 to 1868, inclusive. Section 133 is as follows: "The court of county commissioners of each...