Pilcher v. City of Dothan

• Decision Date: 04 May 1922
• Docket Number: 977.,4 Div. 976
• Citation: 207 Ala. 421,93 So. 16
• Parties: PILCHER v. CITY OF DOTHAN ET AL.
• Court: Alabama Supreme Court

93 So. 16

207 Ala. 421

PILCHER v. CITY OF DOTHAN ET AL.

4 Div. 976, 977.

Supreme Court of Alabama

May 4, 1922

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Suit by B. R. Pilcher against the City of Dothan and others to enjoin the issuance and sale of bonds and the use of the funds arising therefrom. From a decree sustaining demurrers to the bill, and refusing a temporary injunction, complainant appeals. Affirmed.

A bill without equity will not support or invite the issuance of a temporary injunction.

These appeals are from rulings on the same original bill, vis. one from the decree sustaining appellees' demurrer to appellant's bill, and the other from an order denying the temporary injunction prayed therein. The appellant complainant, is a citizen and taxpayer in the city of Dothan and as such he, in his own behalf and along with any others likewise interested who may join, seeks to restrain the municipal authorities of Dothan from proceeding, as they intend and avow, to issue and sell bonds of the municipality in the sum of $750,000, to provide funds wherewith to construct an hydroelectric plant at Chalker's Bluff, on the Choctawhatchee river, in Geneva county, and transmission lines to convey electric power there generated to the city of Dothan, "for the purpose," the ordinance recites, "of providing and constructing a waterworks plant to pump, provide, and deliver water in and to the city of Dothan, for the uses of said city and the inhabitants thereof, and to generate and transmit electricity for such purposes."

The city of Dothan owns and operates electric light and waterworks systems. The power to operate these systems is furnished initially by a steam plant. The steam plant generates electricity, and the current therefrom is applied, in part, to operate the pumps and distribute water for municipal, manufacturing, and domestic purposes, "which [water] plant does and will produce good and wholesome water to supply and take care of the needs of the said city of Dothan and the citizens thereof." The electric current, in excess of that devoted to the water system, is applied to municipal, manufacturing, and domestic purposes. It is averred in the bill that the maximum horse power required to operate efficiently the present water system is 550 horse power of electricity; that the horse power required under ordinary conditions for operating the waterworks for all purposes is 325; "that even after said waterworks system has been extended, enlarged, and developed in a way and manner required, necessary, or convenient for all future needs of the said city of Dothan for many years to come, that it will require and said waterworks system will consume at most only 800 or 900 horse power to maintain, operate, supply, and deliver said water to the said city of Dothan and to the inhabitants thereof;" and that the present steam plant is capable of developing 1,100 horse power, a maximum power adequate to furnish power both for the water plant and the electric light plant operated by the city.

It is further averred in the bill that the electric energy intended to be developed at the hydroelectric plant at Chalker's Bluff, through the expenditure of the proceeds from the sale of the bonds in question, will be 4,000 horse power; and that with additional mechanism to be later installed in connection with the plant now contemplated 8,000 horse power would be developed. It is also averred that the excess electric energy, vis 3,500 horse power, if the presently contemplated hydroelectric plant is alone constructed, and about 7,500 horse power, if the additional mechanism is later installed, will be devoted to municipal purposes, and the remainder sold to private consumers. It is also averred that the proportion of power thus generated to be devoted to the water system will be insignificant in comparison with the proportion sold for commercial purposes, the respective proportions being alleged to be as one-eighth is to seven-eighths-an arithmetical deduction that does not, however, appear to be justified by the facts averred, except in the event 8,000 horse power is generated through the additional mechanism, which object is not now proposed in the ordinance to provide for the sale of the bonds in question.

Notwithstanding the ordinance authorizing the election for the bonds in question does not indicate, in any way, that the proceeds of the proposed issue will be devoted to any other purpose than to operate the waterworks system, the bill questions the good faith of the city government in the premises by these averments:

"Complainant further avers that the large and main expense in erecting the whole hydroelectric development plant and system, including said dam and disbursement of said electricity for lighting and manufacturing purposes in Dothan, is and will be for the purpose and with the intention of constructing and providing and maintaining an electric light plant, so that said electricity can and will be furnished to the inhabitants thereof, electricity for lighting purposes and for manufacturing and commercial purposes, and that such will be the result and effect of the erection of said hydroelectric plant. Wherefore complainant alleges that the main, chief, and major object, purpose, and intention of said mayor, city council, and city of Dothan in erecting, constructing, and providing or acquiring said hydroelectric plant, and the effect thereof, is and will be for the purpose of furnishing to the said city of Dothan and the inhabitants thereof electricity for lighting purposes and power to drive machinery for commercial purposes, and is not for the primary, major, and chief purpose of acquiring, providing, and constructing waterworks, or for providing electricity to operate said waterworks and pump said water. Complainant further avers that the said proposed hydroelectric plant is and will be used incidentally and to the small degree as hereinbefore mentioned for the purpose of constructing, providing, or acquiring electricity with which to operate said waterworks system."

So far as presently material, section 225 of the Constitution provides:

"All towns and cities having a population of six thousand or more *** are hereby authorized to become indebted in an amount, including present indebtedness not exceeding seven per centum of the assessed valuation of the property therein, provided that there shall not be included in the limitation of the indebtedness of such last described cities and towns the following classes of indebtedness, to-wit: Temporary loans, to be paid within one year, made in anticipation of the collection of taxes, and not exceeding one-fourth of the general revenues, bonds or other obligations already issued, or which may hereafter be issued for the purpose of acquiring, providing or constructing school houses, waterworks, and sewers; and obligations incurred and bonds issued for street or sidewalk improvements, where the cost of the same, in whole or in part, is to be assessed against the property abutting said improvements: Provided, that the proceeds of all obligations issued as herein provided, in excess of said seven per centum shall not be used for any purpose other than that for which said obligations were issued. ***"

With the bill are exhibited the detailed reports of the engineers upon the project for the construction and operation of the hydroelectric plant at Chalker's Bluff. These reports undertake to show the desirability of the construction, an important and emphasized feature of which is the probable net profits the sale of electric power for commercial purposes would produce in Dothan. Through demurrer for want of equity in the bill, and through the denial of the temporary injunction, the question of law raised and presented is whether this bond issue (authorized by the favorable result of the election thereon) is in good faith for a purpose within the exception, in favor of "waterworks," from the debt limit fixed by section 225 of the Constitution-the city of Dothan having a population of more than 6,000 and the indebtedness of the city being already sufficient to preclude the issue of these bonds, unless they are within the exception created in favor of the construction of "waterworks."

Farmer, Merrill & Farmer, of Dothan, for appellant.

Reid & Doster, of Dothan, for appellees.

McCLELLAN J.

The municipalities of this state are authorized to construct and operate waterworks systems to supply wholesome water for municipal purposes and for the use of their inhabitants. They may locate their plants within or without their territories; and may issue bonds to provide funds for such purposes, as well as secure the payment of the bonds by mortgage on the systems or pledge of the revenues to be derived therefrom. Code, §§ 1260, 1261, 1262; Acts Sp. Sess. 1921, pp. 6-8.

The municipal right and function to provide water systems for towns and cities is expressly recognized in the Constitution. The municipalities are invested with a discretion, to the end that this public right may be exercised and this public function performed. Where such a power is conferred on a municipality, importing the discretion requisite to its exercise, the courts are without right or authority to interfere, except for fraud or palpable abuse of the discretion thus committed. Oakley v. Atlantic City, 63 N. J. Law, 127, 44 A. 651; Ryan v. Paterson, 66 N. J. Law, 533, 536, 49 A. 587; 1 McQuillin on Municipal Corporations, §§ 376-9; 3 Dillon on Municipal Corporations (5th Ed.) pp. 2114, 2115. See White v. Mayor, etc., 119 Ala. 476, 481, 23 So. 999. In determining the wisdom, propriety, and contractual elements of a proposal to electoral approval or disapproval of a bond issue for an...