State ex rel. Austin v. City of Mobile

• Decision Date: 12 December 1946
• Docket Number: 1 Div. 278.
• Citation: 248 Ala. 467,28 So.2d 177
• Court: Alabama Supreme Court
• Parties: STATE ex rel. AUSTIN et al. v. CITY OF MOBILE et al.

28 So.2d 177

248 Ala. 467

STATE ex rel. AUSTIN et al. v. CITY OF MOBILE et al.

1 Div. 278.

Supreme Court of Alabama

December 12, 1946

S. P. Gaillard, Jr., of Mobile, for appellants.

W O. MacMahon, Jr., intervener, pro se.

Harry Seale, of Mobile, for appellees.

Wm. N. McQueen, Atty. Gen., and MacDonald Gallion Asst. Atty. Gen., for the State.

Thos E. Twitty, of Mobile, for State Department of Docks &amp Terminals, amici curiae.

STAKELY Justice.

W. G. Austin, Jr., as a citizen and taxpayer and in behalf of the other taxpayers and citizens of Mobile, Alabama, filed a bill in equity in the Circuit Court of Mobile County against the City of Mobile and the members of its Board of Commissioners to restrain them from paying to the State of Alabama, Department of State Docks and Terminals, the sum of $350,000. Attached to the bill of complaint and made a part thereof is a copy of a resolution adopted by the Board of Commissioners of the City of Mobile on October 1, 1946, providing for payment of $350,000 to the State of Alabama, Department of State Docks and Terminals.

W. O. MacMahon, a citizen and taxpayer of Mobile, filed a petition to intervene as a party complainant. The court entered an order allowing the intervention. The respondents demurred to the bill of complaint including the amendment thereof separately filed by the intervener. The court sustained the demurrer. Hence this appeal.

The resolution in substance recites that the State of Alabama, Department of State Docks and Terminals has determined upon a program to expand the system of Alabama State Docks situated in the City of Mobile by constructing additional wharves and docks on the west shore of the Mobile River between the present area of the State Docks and the North side of Dauphin Street all at an estimated cost in excess of $4,000,000; that this program will be a very substantial benefit to the City of Mobile and to its industrial enterprises, its merchants and its citizens generally and will greatly increase the trade and commerce carried on and through the Port of Mobile and will provide a substantial improvement to its harbor.

The resolution then recites that it is within the powers and functions and to the interest of the City of Mobile to develop or aid in the development of its port and to improve and extend sea walls, dikes, levees and embankments within the limits of the city for protection against streams, rivers, waters, floods, tides and storms and in the improvement of the drainage system and the system of sanitary and storm sewers within the city and in the improvements of streets, the construction of viaducts and the elimination of traffic hazards and grade crossings; that the expansion program of the Alabama State Docks will include many of the improvements above enumerated and within a large section or area of the City of Mobile.

The resolution then shows that in order to induce the State of Alabama to engage in the expansion program, the City of Mobile offered to the state to grant to it the financial aid of $350,000, as set out in the resolution.

After reciting as aforesaid the purposes of the grant, the resolution provides that in consideration of the facts recited and of the great public benefit which the city and its citizens will derive from the program and for other good and valuable considerations the city grants said sum to the state 'in payment and satisfaction of the commitment of the City of Mobile made to the State of Alabama in inducement of the development of the Port of Mobile through the said expansion program of Alabama State Docks system.' The resolution directs the mayor to pay over this sum 'out of monies in the General Fund of the City not otherwise appropriated upon obtaining appropriate assurances from the State that the funds will be used to apply toward cost of additional lands or facilities embraced in said expansion program.'

It is urged that the City of Mobile cannot lawfully participate in the enlargement and expansion program of the State Docks by contributing the payment contemplated by the resolution because (1) Section 94 of the Constitution of 1901 prohibits such payment, (2) there is no express statutory authority for such payment and (3) although the City of Mobile could itself build the seawalls, wharves and docks, viaducts, sewer, drainage and other improvements, contemplated in the program, the City of Mobile cannot aid the state in so doing since title to the facilities and the management thereof of will vest in the State of Alabama. Two further contentions are advanced by the intervener, which we shall refer to later. We consider all the contentions unsound.

Section 94 of the Constitution of 1901 reads as follows: 'The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise.' Under the resolution it is contemplated that payment be made to the State of Alabama, Department of Docks and Terminals. Beyond controversy under the Mibile Port Amendment to Section 93 of the Constitution of 1901, the proposed payment will be made to an agency of the State of Alabama, which means payment to the State of Alabama itself. State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581. The payment will therefore not be in any sense to either an association or a corporation, within the meaning of Section 94 of the Constitution of 1901, because an association or corporation within the meaning of Section 94 of the Constitution of 1901 has reference only to private associations and corporations. Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695; Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516; Garland v. Board of Revenue, 87 Ala. 223, 6 So. 402. Section 94 of the Constitution of 1901 is not applicable.

In discussing the powers which a municipal corporation possesses and which it can exercise this court has often used these words: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.' * * *.' Cleveland School Furniture Co. v. City of Greenville, 146 Ala. 559, 41 So. 862, 863; City of Bessemer v. Huey, 247 Ala. 12, 22 So.2d 325. The City of Mobile has the specific power and authority under § 470, Title 37, Code of 1940, to 'Construct and maintain wharves and construct buildings and other improvements on wharves and collect wharfage dues thereon.'

The legislature in § 513, Title 37, Code of 1940, has, among other things, specifically delegated the following powers to municipalities in the field of public improvements. 'All cities and towns in this state may design, or cause to be designed, contract for, and execute, or cause to be executed, the construction of * * * and also for the constructing, acquiring, improving and extending of sea walls, dikes, levees and embankments within the limits of the municipality for protection against streams, rivers, waters, floods, tides, seas, and waves, in such manner * * * as such city or town may prescribe. * * * The construction or reconstruction of sanitary sewers or sanitary sewer systems * * * [improving any street, avenue, alley, highway or other public place] * * * the construction or reconstruction of storm water sewers, main trunk storm sewers and storm water sewer systems * * *.'

We think it is indisputable that the city has broad powers with reference to the construction of wharves, docks, sea walls, dikes, levees, embankments against streams, rivers, waters, floods, etc.; broad powers with reference to the construction of sanitary and storm sewers for improvement of public health and drainage in its area; also broad powers in connection with the improvement of its streets and in the construction of viaducts and in the elimination of traffic hazards in grade crossings in its area. All of these things are among the objectives in the expansion program of the State Docks for which the grant of money is contemplated, as shown by the resolution by the commissioners.

The appellants do not appear to question seriously the power and authority of the City of Mobile to expand and develop its seaport facilities. What they do earnestly contend is that lacking specific statutory authority therefor, the City of Mobile is not authorized to make a contribution to the expansion of seaport facilities when the title to the property is not in the City of Mobile, even though the property is located...