Rezner v. Fairhope Single Tax Corp.

• Decision Date: 30 May 1974
• Citation: 292 Ala. 456,296 So.2d 166
• Parties: Rudolph John REZNER et al. v. FAIRHOPE SINGLE TAX CORPORATION, a corporation, et al. SC 782.
• Court: Alabama Supreme Court

Page 166

296 So.2d 166

292 Ala. 456

Rudolph John REZNER et al. v. FAIRHOPE SINGLE TAX CORPORATION, a corporation, et al.

SC 782.

Supreme Court of Alabama.

May 30, 1974.

Kenneth Cooper, Bay Minette, for appellants.

Chason, Stone & Chason, and Charles C. Partin, III, Bay Minette, for appellees.

BLOODWORTH, Justice.

Complainants, all lessees of respondent corporation, filed a bill of complaint in the circuit court of Baldwin County against Fairhope Single Tax Corporation and certain of its officers seeking to dissolve the corporation, or, in the alternative, to enjoin the corporation, its officers, board of directors and members from fixing rents on complainants' leases on any basis other than the actual value of the land exclusive of improvements, from devoting any of the rents to purposes other than those mutually beneficial to all of the lessees, and from paying any taxes on the corporation's unrented and unproductive lands from complainants' rents. Respondents' demurrer to the original bill of complaint was sustained. (This ruling was prior to the effective date of the new Alabama Rules of Civil Procedure.) Whereupon, complainants amended their complaint, adding three additional paragraphs. (The amendment came after the effective date of the new rules). Respondents then filed a motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted. (Rule 12(b)(6) A.R.C.P.) The trial court granted the motion, dismissing the cause and taxing costs to complainants. Complainants appeal. We affirm.

In their first assignment of error, complaints contend that the trial court erred in sustaining respondents' demurrer to the original complaint. This Court has theretofore held that where a demurrer to a complaint is sustained and the complaint is later amended and a demurrer sustained to the amended complaint, and a nonsuit taken, the action of the trial court in sustaining the demurrer to the original complaint is not before this Court for review. Thus, this assignment of error is without merit. Kent v. Coleman Company, Inc. et al., 285 Ala. 288, 231 So.2d 321 (1970); Whatley v. Alabama Dry Dock and Shipbuilding Company, 279 Ala. 403, 186 So.2d 117 (1966).

In assignments of error 2. and 3., complainants insist that the trial court erred in granting respondents' motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted. Complainants argue that paragraph 10 of the amended bill of complaint does state a claim upon which relief can be granted. Paragraph 10 reads as follows:

'10. The Fairhope Single Tax Corporation, a Corporation, has wholly failed the purposes for which it was organized, as set forth in its DECLARATION OF INCORPORATION OF FAIRHOPE SINGLE TAX CORPORATION, as set forth in paragraph 3 therein (see Exhibit 'B' to original complaint herein) in that:

a. The defendant corporation has failed to demonstrate the beneficiary (sic), utility and practicability of the single tax theory for any government;

b. It has failed to secure for the members of said corporation a model community free from all forms of special priviledges (sic);

c. It has failed to secure for the members of said corporation equality of opportunity;

d. It has failed to charge its lessees a fair rental value on the real property of the corporation.

e. It has, by charges of excessive rentals, confiscated improvements made by lessees of the said corporation, without due process of law;

f. The corporation has invested its major assets or holdings with a financial institution governed by individuals who are officers of the said defendant Fairhope Single Tax Corporation, a corporation, and the said financial institution to the determinant (sic) of the members of defendant corporation;'

Subparagraphs a., b. and c. present allegations virtually identical to those this Court considered in Fairhope Single Tax Corporation v. Melville, 193 Ala. 289, 69 So. 466 (1915). In that case a complaint was filed by a member of the same Fairhope Single Tax Corporation seeking a dissolution or, in the alternative, an injunction (the same as in the case at bar), on the ground, among others, that 'the corporation has failed and must fail in its purpose to demonstrate the 'beneficiency, utility and practicability of the single tax, with the hope of its general adoption by the governments of the future.'"

This Court in Fairhope Single Tax Corporation v. Melville held, inter alia, at 193 Ala. 305, 308, 69 So. 471:

'The enactment of 1903 permits the creation of a corporation designed to allow the incorporators and the corporation's controllees to illustrate and demonstrate, with its own property, means, and efforts, coupled with the presumed observance of contractual obligations assumed by others, single tax or other economic principles without impairing, embarrassing, or violating any features or function in the organic law. That is the enabling purpose of the enactment; and the powers coferred on the incorporation when perfected are those contributive to the effectuation of that purpose * * *.'

'Distinguishing, if it can be done, the stated purpose underlying the act authorizing incorporations like that of the appellant from the exercise of the entirely lawful powers conferred by section 5 of the act allowing such incorporations, it cannot be affirmed or denied that the stated purpose is impossible of approximate attainment, because, whether the demonstration or illustration with or by the exercise of the lawful powers conferred on the corporation, in a manner or through methods the incorporators conceive to consist with the economic principles approved by the corporation and those contractually concerned in or with its lawful operations, has been, is, or will be successful, is purely a matter of deduction from a premise of fact (assumed, not shown, it may be), that the soundness, wisdom, and practicability of the principles desired to be vindicated by actual test, within the bounds of every law, has been, is, or will be demonstrated or illustrated. One might conclude that the lawful exercise of the the powers conferred, however ordered, arranged, or applied they may be, would conduce to no possible demonstration or...