Thompson v. Chilton County

• Decision Date: 19 May 1938
• Docket Number: 5 Div. 269.
• Citation: 236 Ala. 142,181 So. 701
• Parties: THOMPSON v. CHILTON COUNTY ET AL.
• Court: Alabama Supreme Court

181 So. 701

236 Ala. 142

THOMPSON v. CHILTON COUNTY ET AL.

5 Div. 269.

Supreme Court of Alabama

May 19, 1938

Appeal from Circuit Court, Chilton County; Arthur Glover, Judge.

Petition for declaratory judgment by John T. Thompson against Chilton County, the individual members of the Court of County Commissioners and the Probate Judge who is ex officio Chairman and Clerk of the Court of County Commissioners. From a judgment sustaining a demurrer to the petition and dismissing it, petitioner appeals.

Affirmed.

Lawrence F. Gerald and J. B. Atkinson, both of Clanton, for appellant.

Reynolds & Reynolds, of Clanton, for appellees.

KNIGHT Justice.

This cause is before this Court on appeal from a judgment of the Circuit Court of Chilton County, sustaining demurrers to, and dismissing a petition filed by appellant against the appellees under the "Uniform Declaratory Judgment Act," approved September 7th, 1935, General Acts of 1935, pp. 777-779.

The demurrers of the appellees to the petition, which were sustained by the lower Court, present for our determination three propositions.

First Has a resident taxpayer such interest in the funds of a county as would authorize him, under the provisions of the Uniform Declaratory Judgment Act, to file a proceeding to prevent the illegal and wrongful expenditure of such funds?

Second Whether or not the petition, in this case, of the resident taxpayer, for a declaratory judgment, presents a justiciable controversy between the petitioner, and the respondents Chilton County, and the Members of the Court of County Commissioners?

Third: Whether or not the local act of the Legislature of 1936, Local Acts 1936, Ex.Sess., p. 4, providing for the appointment of a Road Supervisor, and prescribing his powers, duties and authority over the public roads and highways of Chilton County, takes from the Court of County Commissioners of said county its control over, and general superintendence of the public roads and bridges, and deprives said Court of its legislative, executive and judicial powers in respect thereto?

This Court is committed to the proposition that a taxpayer may maintain a bill to prevent a misappropriation of the county funds. Reynolds, County Treas., et al. v. Collier, 204 Ala. 38, 85 So. 465; Potts v. Commissioners' Court of Conecuh County, 203 Ala. 300, 82 So. 550; O'Rear v. Sartain, 193 Ala. 275, 69 So. 554, Ann. Cas.1918B, 593.

Borchard in his treatise on Declaratory Judgments, at p. 597, observes:

"In most states of the United States, and practically always in American municipalities, a taxpayer is deemed to have sufficient legal interest to prevent by injunction the improper or illegal expenditure of public funds, without invoking the actual or pro forma aid of an attorneygeneral as party plaintiff. A fortiori, therefore, he has sufficient interest to request declaratory relief against such expenditure or activity, whether in the form of a proposed or signed contract, or otherwise. * * *."

This Court in the case of Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273, in an opinion by Justice Bouldin held (page 277): "Controversies touching the legality of the acts of public officials, or public agencies, challenged by parties whose interests are adversely affected, is one of the favored fields for such declaratory judgment, styled in the act and in the authorities, the 'declaration.' Official action, done or threatened, challenged as unlawful, a usurpation of official power, whether lack of authority appears in the terms of the statutes, or because of unconstitutionality thereof, are said to be determinable in this manner rather than force the parties to seek injunctive relief, which involves many questions going to the propriety of such relief."

In the case of Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234, it was observed by Foster, J., in writing for the court (page 236): "The Declaratory Judgments Act confers upon courts of record power to make declaration of such controversies, which we have held is sufficient to do so, when there is subsisting an actual controversy, on which substantial personal or property rights are dependent, and that parties to it are brought into court and heard so that the matter thereby becomes res judicata. Jefferson County v. Johnson 168 So. 450."

The remedy provided in the Declaratory Judgment Act is designed to be alternative, and not dependent upon an absence of remedies. Borchard on Declaratory Judgments, pp. 147, 148; Tuscaloosa County v. Shamblin, supra.

When it is remembered that the Declaratory Judgment Act was designed to supply the needs of a form of action that will set controversies at rest before they lead to repudiation of obligations, the invasion of rights, and the commissions of wrongs, (Green v. Inter-Ocean Casualty Co., 203 N.C. 767, 167 S.E. 38) it would seem that there is no room for doubt that the petitioner had such interest in the subject of the controversy as authorized him to bring the present proceeding.

Likewise, we are of the opinion that a justiciable issue between proper parties is here presented, and, therefore, the inquiry must be directed to the merits of the controversy. Zoercher et al. v. Alger et al., 202 Ind. 214, 172 N.E. 186, 907, 70 A.L.R. 1232; Ward v. Klamath County et al., 108 Or. 574, 218 P. 927; Kirkpatrick v. City Board of Education, 234 Ky. 836, 29 S.W.2d 565.

This brings us, therefore, to consideration of the question of whether the Local Act of 1936, above mentioned, was intended to, and did in fact, and as a matter of law, take from the Court of County Commissioners of Chilton County all control, supervision, inspection and general superintendence of the public roads and bridges of said county, and deprive said court of its legislative, executive and judicial powers in respect to such roads, highways and bridges.

By section 1347 of the Code; Michie's Code, § 1397 (110) the Courts of County Commissioners, or other like governing bodies of the several counties of this state have general superintendence of the public roads, bridges and ferries within their respective counties, and may establish new, and change and discontinue old roads, bridges and ferries in their counties. To this end they are given legislative judicial and executive powers, except as limited in and by the statute. These courts are courts of unlimited jurisdiction and powers as to the construction, maintenance and improvement of the public roads, bridges and ferries, except as their jurisdiction may be limited by the local or special statutes of the state. They are given by law the authority and power to establish, promulgate and enforce rules and regulations, make and enter into such...