Moody v. Terrell-Hedges Co.

• Decision Date: 02 April 1918
• Docket Number: 8 Div. 573
• Citation: 16 Ala.App. 441,78 So. 639
• Parties: MOODY, Judge of Probate, v. TERRELL-HEDGES CO.
• Court: Alabama Court of Appeals

78 So. 639

16 Ala.App. 441

MOODY, Judge of Probate, v. TERRELL-HEDGES CO.

8 Div. 573

Court of Appeals of Alabama

April 2, 1918

Rehearing Denied May 7, 1918

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Petition by the Terrell-Hedges Company against A.H. Moody, Judge of Probate of Jackson County, for mandamus to issue warrants authorized by resolution of the county board. From a judgment in favor of petitioner, respondent appeals. Reversed and rendered.

John F Proctor and W.H. Norwood, both of Scottsboro, for appellant.

Bouldwin & Wimberly, of Scottsboro, and M.M. Ullman and W.A. Jenkins both of Birmingham, for appellee.

SAMFORD J.

On February 21, 1912, an agreement was entered into between the commissioners' court of Jackson county, undertaking to act for the county, and Terrell-Hedges Company, appellee here, whereby appellee, in consideration of a certain sum of money, agreed to install in the new courthouse of the county certain electric light fixtures, whereupon appellee proceeded to install the fixtures stipulated in the contract. At the time of the making of the contract, and at the time of the installation, the county was indebted beyond its constitutional debt limit, and therefore the contract was illegal and void, of which fact both parties were charged with full knowledge. After the installation, warrants were drawn on the county treasurer and delivered to appellee, in payment of the amount called for by the contract, which warrants the treasurer refused to pay, because of the invalidity of the contract. On November 30, 1915, the county board entered into a contract with appellee, whereby it agreed to pay appellee rent on said fixtures for one year from October 1, 1915, and at the expiration of the year giving the county the option to purchase at a price or to lease for another year. On April 19, 1917, a claim was filed in legal form, for the rent for one year, which claim was allowed and ordered paid out of the general fund of the county. The probate judge refused to draw the warrant, and this proceeding is brought to compel him to act.

It is conceded in brief by both sides that the original contract was void by reason of section 224 of the Constitution fixing a limitation on the indebtedness of counties, it being further agreed that Jackson county had, at the time of the making of the contract, exceeded this limitation. A pertinent inquiry then arises. Was the contract merely void, so as to allow the appellee the benefit of that rule of primary justice recognized by the courts of this state, beginning with Allen v. La Fayette etc., 89 Ala. 641, 8 So. 30, 9 L.R.A. 497, and reaffirmed in numerous cases since that time, notably Gen. Electric Co. v. Town of Ft. Deposit, 174 Ala. 183, 56 So. 802, or was the contract illegal as being opposed to the public policy of the state as declared in the Constitution, thereby placing the parties in that class, where through a violation of positive law the courts will not lend their aid to reimburse the loss, nor to restore the property delivered under the contract, following the declarations of the law as announced in Gen. Electric Co. v. Ft. Deposit, 174 Ala. 184, 56 So. 802, Bluthenthal v. Headland, 132 Ala. 248, 31 So. 87, 90 Am.St.Rep. 904, Town of Cottonwood v. Austin, 158 Ala. 117, 48 So. 345, Clark v. Colbert, 67 Ala. 92, Walker v. Gregory, 36 Ala. 180, and Worcester v. Eaton, 11 Mass. 368? We are of the opinion that section 224 of the Constitution fixes the public policy of the state on the question of the authority of county courts to incur debts, placing a limitation upon the agents of the county, and that all persons contracting with county commissioners do so with a full knowledge of this limitation and of the public policy of the state. Wherever this is the case, it is the highest duty of the courts to uphold the Constitution, and to see that it is not evaded or set aside. In the case of Hagan v. Commissioners,...