Whitten v. City of Atmore

• Decision Date: 27 May 1965
• Docket Number: 3 Div. 155
• Parties: T. P. WHITTEN et al. v. CITY OF ATMORE et al.
• Court: Alabama Supreme Court

Page 764

175 So.2d 764

278 Ala. 70

T. P. WHITTEN et al. v. CITY OF ATMORE et al.

3 Div. 155.

Supreme Court of Alabama.

May 27, 1965.

Windell C. Owens, Monroeville, and J. R. Tucker, Atmore, for appellants.

Brooks, Garrett & Thompson, Brewton, for appellees.

PER CURIAM.

The complainants (appellants here) filed their original and amended bill of complaint in the Circuit Court of Escambia County, in Equity, against the City of Atmore, a municipal corporation, its Mayor and Councilmen, seeking an injunction permanently restraining and enjoining the respondents from entering into any lease or rental contract with the Public Housing Authority of the City of Atmore for lease or rental of City Hall facilities and from transferring any assets of the City of Atmore to said Authority. Also there was a prayer for other, further and different relief as in equity might seem just and proper.

One paragraph of the amended complaint alleges that the said Public Housing Authority 'is now in the process of issuing bonds for the financing and construction of a new City Hall, Police and Fire Department buildings for the City of Atmore, Alabama with the anticipation that these revenue bonds will be paid through the rental of these new facilities to the City of Atmore.'

Another paragraph of the amended complaint alleges that the facilities which the Authority plans to construct do not in fact now exist and that to allow the City of Atmore or its officials to bind the City of Atmore under any lease agreement for facilities that do not now exist is contrary to law and against public policy and would in fact obligate the City of Atmore to pay for rental space that does not exist.

The amended complaint in paragraph 6 avers that the current revenues of the City of Atmore are not sufficient to meet its current obligations and the City of Atmore could not, out of its current revenues, pay an amount sufficient to meet the principal and interest requirements to retire the cost of the proposed new facilities.

It is averred in paragraph 7 of the amended complaint that the creation of the Public Housing Authority of the City of Atmore, Alabama, and the 'purposed lease between the corporation and the City of Atmore for a new City Hall and other building facilities is an attempt by subterfuge, to evade the constitutional provisions as to the debt limit of the City of Atmore. That said attempt to evade the constitutional debt limit by the City of Atmore will create a burden upon the taxpayers residing in the City of Atmore and is illegal in that the cost to the City of Atmore resulting from the construction and rental of said facilities will push the indebtedness of the City of Atmore beyond the constitutional debt limit.'

Mayor H. H. Dees, for respondents, testified:

'Q. Now Mayor Dees, you've heard the various questions asked and discussions made with reference to the building of a city hall and new jail and new fire station in the city of Atmore, I'll ask you if any lease agreement has been yet been (sic) executed between the Building Authority and the City of Atmore or the Utilities Board of the City of Atmore?

'A. None has been consummated at this time.

'Q. To the best of your knowledge has any such instrument been drafted?

'A. It has not.

'Q. Have you even seen a rough copy of same?

'A. I have not.

'Q. Now you were given a subpoena duces tecum to present such...