Terrell v. Marion County

• Decision Date: 19 February 1948
• Docket Number: 6 Div. 559.
• Citation: 34 So.2d 160,250 Ala. 235
• Parties: TERRELL et al. v. MARION COUNTY.
• Court: Alabama Supreme Court

34 So.2d 160

250 Ala. 235

TERRELL et al. v. MARION COUNTY.

6 Div. 559.

Supreme Court of Alabama

February 19, 1948

Horace C. Wilkinson, of Birmingham, for appellants.

Fite and Fite, of Hamilton, and Arthur Fite, of Jasper, for appellee.

LAWSON Justice.

This is an appeal from a decree of the circuit court of Marion County, in equity, overruling demurrer to a bill filed by appellee, Marion County, against appellants, Gera Terrell and her husband, Houston Terrell, to annul and vacate a sale of land and to cancel a conveyance thereof.

Section 177, Title 12, Code 1940, provides as follows: 'The court of county commissioners have control of all property belonging to the county, and may, by an order to be entered on its minutes, direct the disposal of any real property which can be lawfully disposed of, and direct the probate judge to make titles thereto; and a conveyance made by the probate judge in accordance with such order invests the grantee with the title of the county.'

No case has come to our attention wherein an equity court has been called upon to cancel a conveyance of county lands executed in accordance with the terms of the above-quoted statute.

In the case of Corning v. Patton, 236 Ala. 354, 355, 182 So. 39, 40, which was started by petition for common law certiorari to quash the proceedings of the County Commission of Jefferson County, providing for a lease of property formerly used as a courthouse, it was held that the said county governing body had the authority under § 209, Code of 1923, § 177, Title 12, Code 1940, to lease county property when a sale was not advisable and it was no longer needed or used for county purposes. As to the right to review the action of the county governing body in the execution of such a lease, it was there said: 'Indeed, the action of the board, when acting within its authority as to the nature terms, price, etc., of the lease, is largely within its discretion, and in the absence of fraud, corruption or unfair dealing their action will not be disturbed.' This rule, of course, is also applicable to a sale of county property.

In a number of cases where injunctions were sought to restrain county governing bodies from entering into contracts relative to the location, erection, repair, removal, or the furnishing of the county buildings, it has been held that in the performance of such duties, they exercise a function that is quasi-legislative and their acts in such matters, when free from fraud, corruption, or unfair dealing, cannot be controlled or reviewed by any other court.--Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971; Matkin v. Marengo County, 137 Ala. 155, 34 So. 171; Hays v. Ahlrichs, 115 Ala. 239, 22 So. 465; Talley v. Commissioners' Court of Jackson County, 175 Ala. 644, 39 So. 167; Town of Eutaw v. Coleman, 189 Ala. 164, 66 So. 646.

In Board of Revenue of Covington County v. Merrill, supra, it was held that improper action of a county governing body might be controlled by an equity court only in 'those cases where, from fraudulent or corrupt motives, or in unfair dealings, to secure a personal benefit to the members thereof, or to some third person, the court or board take the questioned action.' An example of collusion or unfair dealing, such as would warrant the interference of a court of equity, is stated in the case of Long v. Shepherd, 159 Ala. 595, 48 So. 675, as where 'for the purpose of defrauding the public and for their individual benefit, under color of official right and as a cloak to hide fraud,' such a court or board, by virtue of an official contract or act, 'attempt[s] to have public funds applied, not for the use and benefit of the public but for their own personal benefit, or for that of a third party with whom they contract.'

In paragraph 7 of the bill it is averred that the sale of the lands to defendants and the deed executed pursuant to such sale was a gross abuse of discretion vested in the probate judge and the members of the commissioners' court and that therefore the sale and deed should be cancelled.

A court of equity will not cancel a deed executed by a governing body of a county or city for abuse of discretion as distinguished from fraud. In such matters county and city governing bodies have much the same powers. In the case of Van Antwerp v. Board of Com'rs, 217 Ala. 201, 115 So. 239, an equity court was called upon to avoid for illegality and to enjoin the execution of a contract entered into by the Board of Commissioners of the City of Mobile with the Superior Incinerator Company of Texas, for the construction and installation of two incinerators for the City of Mobile. One of the grounds for relief was abuse of discretion in awarding this contract. In writing to this question for the court, Mr. Justice Bouldin said:

'A municipality is a unit of government. The governing body is vested with certain legislative, judicial, and administrative powers. In making contracts for municipal plants for public safety and convenience, within charter power, they act in a quasi legislative capacity. Acting upon a subject-matter committed to them and proceeding according to the forms required by law, the legislative discretion is vested in them, not in the courts.

'The courts deal only with the question of legality vel non. Many cases have been before this court in which the acts of governing bodies of counties and cities have been attacked as illegal because of alleged abuse of discretion, arbitrary action having no due regard to the public interest and the public trust committed to them.

'In all such cases it becomes manifest at once that, if entertained, the court must enter upon an inquiry whether the contract was in fact well advised, the result of fair judgment having a basis of reason. These are matters committed by law to the governing body of the city. Great care must be exercised by the courts not to usurp the functions of other departments of government. No branch of government is so responsible for the autonomy of the several governmental units and agencies as the judiciary. Accordingly, it has been many times declared the courts cannot and will not interfere with the discretion vested in the governing body of a municipality.

'So, it must be regarded as settled that the court will not interfere by injunction except in case of corruption, fraud, or bad faith, the equivalent of fraud.

'It may well be said all cases of arbitrary action, that is to say, action based on no sound basis of reason, but expressive of a will to rule without due regard to the public interests involved, have an element of bad faith. But abuse of discretion of this character does not warrant relief.

'The case before us well illustrates the reason of such rule. The basic charge here is that the Mobile commissioners arbitrarily selected the more costly of two equally efficient incinerator plants. Necessarily, the court is invited to pass upon the relative merits of the products of two rival manufacturers and their adaptation to the needs of Mobile.

'Patently, this is the matter committed by law to the commissioners. To usurp that function, the courts would find themselves the general supervisors over the governing bodies of cities, an impossible task, subverisive of all autonomy in government.' Page 206 of 217 Ala., page 243 of 115 So.

While the case above referred to and quoted from dealt with a bill wherein an injunction was sought as well as annulment of the contract, the rule there stated is applicable to a case such as this where an equity court is called upon to cancel a conveyance executed by a governing body of a county. The averments of paragraph 7 of the bill do not state a ground for cancellation of the deed by a court of equity.

In paragraph 6 of the bill relief is predicated on the averments that 'the said purported sale of said lands to defendants in this cause and the execution of the said deed to Gera Terrell were in bad faith upon the part of the said Probate Judge and some of the members of the Commissioners Court of Marion County.' Bad faith which will authorize interference in matters of this kind by a court of equity must amount to or be the...