Long v. Shepherd

• Decision Date: 09 February 1909
• Citation: 159 Ala. 595,48 So. 675
• Parties: LONG ET AL. v. SHEPHERD ET AL.
• Court: Alabama Supreme Court

48 So. 675

159 Ala. 595

LONG ET AL. v. SHEPHERD ET AL.

Supreme Court of Alabama

February 9, 1909

Appeal from Chancery Court, Walker County; A. H. Benners Chancellor.

Suit for injunction by T. L. Long and others against J. W Shepherd and others. From a decree dissolving temporary injunction, plaintiffs appeal. Affirmed.

A. F Fite, for appellants.

Bankhead & Bankhead, for appellees.

MAYFIELD J.

This appeal is from a decree dissolving a temporary injunction. The impropriety of this decree is the only error assigned. The bill was filed by the appellants, as residents and taxpayers, against the appellees in their official capacity as county commissioners, to enjoin the allowance and payment of claims for extra work performed by the contractor in the construction of a county courthouse. The answer of the respondents denied fully and particularly every averment of the original and amended bills which could be said to give them equity or to authorize a temporary injunction. We fully agree with and concur in the opinion of the learned chancellor that the injunction should be dissolved.

The original bill was clearly without equity. The amended bill while it may contain equity, was subject to demurrer; but the sustaining of the demurrer thereto is not assigned as error. The answer having explicitly and fully denied every possible equity of the bill, we think the chancellor properly dissolved the injunction, and, while the chancellor has a large discretion on such hearings, we are not prepared to say it would not have been revisable error to retain this injunction on the showing which appears from this record. Equity will often interpose, in behalf of taxpayers, to restrain illegal acts of public officers under color and claim of official authority, when such acts tend to impair public rights and those of the taxpayers, or will result in irreparable injury to private citizens. But mere negligence of official routine, not gross or wanton, mere mistake or error of judgment, or lack of experience, etc., in the absence of fraud, will not authorize courts of equity to enjoin public officers from doing acts authorized by law, whatever may be the opinion of the court or of the public as to the wisdom of such acts or the mode of doing them. The act sought to be enjoined must be unlawful, or the mode, manner, or extent of its execution must be fraudulent in fact or in law. 1 Spelling, Extraord. Relief, 483-508.

The county commissioners have the undoubted right and power to build county courthouses, and to make contracts therefor, and to pass and allow valid claims of the contractor on such account. This is not only their right, but is their duty which they can be forced to perform, or for a failure so to do they can be...