Potts v. Court of Com'rs of Conecuh County

• Decision Date: 30 June 1919
• Docket Number: 3 Div. 382
• Citation: Potts v. Court of Com'rs of Conecuh County, 82 So. 550, 203 Ala. 300 (Ala. 1919)
• Parties: POTTS v. COURT OF COMMISSIONERS OF CONECUH COUNTY et al.
• Court: Alabama Supreme Court

82 So. 550

203 Ala. 300

POTTS v. COURT OF COMMISSIONERS OF CONECUH COUNTY et al.

3 Div. 382

Supreme Court of Alabama

June 30, 1919

Appeal from Circuit Court, Conecuh County; A.E. Gamble, Judge.

Bill by J.J. Potts against Court of Commissioners of Conecuh County and others.From judgment for defendants, plaintiff appeals.Affirmed.

Hybart Hare & Ratcliffe, of Monroeville, for appellant.

Hamilton & Page, of Evergreen, for appellees.

THOMAS J.

The instant bill was for injunction against certain county officials and the county depository to restrain the drawing and paying of certain warrants or incurring other indebtedness against the county.

The several assignments of error present a material question for decision, viz. whether or not the county of Conecuh, at the time of the contraction of the indebtedness, evidenced by the warrants issued to Newell Auto & Machinery Company, dated October 15, 1917, or at the date of the filing of the bill was indebted in a sum in excess of 3 1/2 per centum of the assessed value of the property therein.Constitution 1901, § 224.

All of the warrants catalogued in the bill, except those of Newell Auto & Machinery Company, have been issued and paid by the county depository.It is unnecessary to observe that an injunction will not lie to prevent a consummated act.Such warrants, averred to have been paid without lawful authority are introduced to show that the constitutional limitation of that county's indebtedness had been reached, and that the county may not contract other indebtedness in tick eradication and in the payment of Newell Auto & Machinery Company.It is noted of the bill that said machinery company was not a party thereto.Appellee points out that the date when the indebtedness to Newell Auto & Machinery Company was contracted is not averred or proved.It is averred that such indebtedness was evidenced by the county's warrants issued therefor, of date October 15, 1917.The date of the contract of such indebtedness should have been averred.First National Bank of Abbeville v. Terry, Briggs & Co.,83 So. 170.

Of the evidence in support of the averment of the bill of the county's indebtedness as compared to the assessed value of the property within the county, it is important to note that only the answers to the interrogatories propounded under the statute to Judge S.P. Dunn and the first National Bank of Evergreen, the testimony given by Judge Dunn and Mr. J.D. Wright, cashier of said bank, and an agreement of counsel as to such assessed tax values are shown by the record.These answers of respondents and evidence by Dunn and Wright tend to show that the county is or was not indebted in excess of the constitutional limit.Respondents having denied the material allegations of the bill, the burden of proving such excess indebtedness must be discharged by the complainant.To the question of the discharge of this burden of proof we will again advert.

The bill cannot be sustained as one merely to restrain county officials in the exercise of a discretionary power.With reference to the contracts of the county looking to eradication of the "cattle tick" within said territory, the reasonable or necessary expenditure sought to be made to that end, "without fraud, corruption or unfair dealing" on the part of the court of county commissioners of that county, was the exercise of the discretionary power by such officials.Restraining by injunction the exercise of discretionary power of county officials has been the subject of frequent judicial discussion.The cases in which a suit may be maintained by a taxpayer to enjoin the exercise of such discretionary power are to the effect that this may be done only when fraud, corruption, or unfair dealing on the part of the county officials charged with the duty and responsibility is averred and proved.No such allegations are contained in the present bill.Board of Rev. v. Merrill,193 Ala. 521, 531, 68 So. 971;Town of Eutaw v. Coleman,189 Ala. 164, 167, 66 So. 464.The exercise of the sound discretion reposed in boards of revenue or courts of county commissioners as to the "laying out," building or maintaining of public roads, or in the purchase of machinery thought to be necessary to that end, was the subject of discussion in the early case of Hill v. Bridges, 6 Port. 197, 200, and in the recent case of O'Rear v. Sartain et al.,193 Ala. 275, 288, 69 So. 554, Ann.Cas. 1918B, 593.As to the exercise of other discretionary powers by such county boards, seeWhite v. Hewlett,143 Ala. 374, 379, 42 So. 78;Com. Court of De Kalb Co. v. Wilborn,155 Ala. 192, 195, 46 So. 585.

The burden of proof being on complainant to make out his case under the abuse of discretionary power (if such were the theory or equity of the bill), in the absence of allegation and proof that complainant had failed to make application to the court of county commissioners for annulment of the order of payment to Newell Auto & Machinery Company or as to the tick eradication, relief would be denied.Of this preliminary procedure by a taxpayer before resorting to injunction, this court said in Board of Rev. v. Merrill, supra:

"Except in cases of fraud, it is the duty of the complaining taxpayer to go before the board of revenue or court of county commissioners and make a proper motion to set aside the void proceeding of that body, and, failing therein, then to apply to this court for the common-law writ of certiorari to review such void action. white v. hewlett, supra; ex parte Boynton, 44 Ala. 261;Commissioners' Court v. Wilborn,155 Ala. 195, 46 So. 585;Barnett v. State, 15 Ala. 829."

The right of a taxpayer to resort to a court of equity to prevent misappropriation of the county's funds was declared in O'Rear v. Sartain et al., supra, as follows:

"A court of equity, at the suit of a taxpayer, may restrain by injunction the misappropriation of county funds by county officials; but no power exists in a court of equity to compel county commissioners in the exercise of their discretion in the conduct of the county's business.When a court of equity undertakes to review the action of the boards of revenue or courts of county commissioners, a question of jurisdiction is presented; and unless the jurisdictional facts are alleged, and the charge thereon is made of fraud, corruption, or unfair dealing, jurisdiction of the subject-matter is not acquired."

The equity of the bill must rest on the right of taxpayers to prevent misappropriation of county funds in payment of debts contracted when and after the county had reached or exceeded the constitutional limit.As to the payment of debts by the county contracted in its effort to eradicate the cattle tick or its...