Opinion
4 Div. 792.
June 27, 1918. Rehearing Withdrawn November 14, 1918.
Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.
Sollie Sollie, of Ozark, for appellants.
W. W. Sanders, of Elba, for appellees.
The foregoing statement of the case will suffice for a general outline of the questions here presented for consideration. The exhibits attached to the bill disclose that the authorities of the city of Enterprise have substantially complied with the statutes in the proceedings thus far taken for the street improvements mentioned above.
In Cramton v. City of Montgomery, 171 Ala. 478, 55 So. 122, it was said that a court of equity does not generally look with favor on bills to prevent the enforcement of municipal ordinances, or concern itself with irregularities in municipal procedure; that the municipality has the undoubted power to pave its streets, and "within the limits prescribed to determine when, where, and how." It was further held that the municipality was in the exercise of a legislative discretion, and that "under these conditions the rule is well settled that 'courts have no jurisdiction to substitute their judgment for that of the municipal body, or interfere with the act or undertaking, because it is not consistent with the judicial reasoning or policy.' "
Much stress seems to be laid upon the fact sufficient notice was not given for the reception of bids; but, under section 1367 of the Code of 1907, the manner and time of this notice is left to the discretion of council. It has been held that, in the absence of statutory requirement, municipal contracts need not be let under competitive bidding. 3 McQuillin on Municipal Corporations, § 1186.
No relationship between the attorney employed by the city and the paving company, to which it is alleged the contract for improvements will be let, was established, and any such relation was specifically denied in the sworn answer.
We think it quite clear that the right to injunctive relief, as sought by the bill, could not be rested upon any averments of fraud.
The bill is without equity upon that feature attacking the ordinances for indefiniteness of description. It would seem upon an examination thereof that they appear to be sufficiently definite to substantially meet the requirements of the statute; but whether, strictly speaking, they are sufficiently definite in all respects, it is quite clear that the averments in this respect would not justify injunctive relief. The parties appeared before the council and made no objections on account of these matters. Upon this question see City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173; City of Birmingham v. Abernathy, 178 Ala. 221, 59 So. 180; section 1380, Code 1907.
The bill avers that the proposed improvements will be of an insubstantial character, will weaken and give way, rendering the property of complainants reasonably inaccessible, and thereby damaging the same, for which they could receive no compensation, because of the insolvency of the city.
If it be conceded, without deciding, that these general averments, in anticipation of any work having been done, or the contract let, would give equity to the bill, yet this would avail the complainants nothing upon this appeal, as the evidence before the court below was very clear and full in support of the specific denials of such averments.
It is next insisted that the complainants are entitled to injunctive relief for the reason that the cost of the improvements will far exceed the special benefits to the property, and that the difference in the amount will constitute a liability against the city of Enterprise, which is already indebted beyond the constitutional limits. The bill avers that the city of Enterprise proposes to issue bonds with which to secure the funds necessary for the prosecution of the work, or the payment of the contract.
The answer denies the indebtedness of the city is in excess of the constitutional limit. But it is averred, even if that be true, the complainants will suffer no injury as taxpayers by reason of the creation of a liability in excess of the enhancement in value of the abutting property on account of the improvement, because, to the extent of such liability, the same would be void as an indebtedness against the city of Enterprise, and thereby could not be enforced as a liability. It is further averred in the answer that the enhancement in value of the abutting property will equal the cost of such improvement.
The city of Enterprise is shown to have a population of less than 6,000 inhabitants. That portion of section 1411 of the Code of 1907 here pertinent reads as follows:
"Any city or town having a population of less than six thousand may, notwithstanding the amount or character of any bonded or other indebtedness, issue such bonds, but the same shall be a lien or charge only against the property improved and against the fund collected from the assessments levied against the property improved, and shall not be the general obligation of the city or town, nor shall such city or town be in any way liable to the holders of such bonds in case of failure to collect the same."
It is thus seen that the bill charges that these bonds shall be issued for the payment of improvements which will become a general liability against the city; but, under the language of the above-cited statute, these bonds shall not be "the general obligation of the city or town, nor shall such city or town be in any way liable to the holders of such bonds in case of failure to collect the same."
There is nothing in any ordinance or proceeding of the council indicating that the city proposes to incur any obligations so far as the payment of the cost is concerned; but, on the other hand, it appears that the intention is to fasten the expense upon the abutting property on the streets to be improved, to the extent of the special benefits thereto resulting. No steps have been taken looking to any deficiency, if one should arise. The averments of the bill, therefore, in this respect are based upon the assumption that, as a matter of law, any such excess in cost over the benefits derived would become a municipal obligation, although no ordinance so provides, no contract has been let, no bid received, and no meeting of the council in response to the advertisement, and no opportunity therefore to impose conditions. Before it could be said with any degree of accuracy what the action of the council would be, the bill was filed, and the city enjoined from entering into any contract whatever, although the city might be able to make a contract whereby the contractor assumed to do the work solely upon consideration of compensation from the assessment, and in case of deficiency the loss fall upon the contractor. The bill in this aspect, therefore, rests upon averments purely speculative. The matter of assessment remains to be fixed by the council, and from any such assessment complainants may appeal to the circuit court, where trial by jury may be had, and further appeal is provided to this court as in other cases.
Complainants by these averments seek to try in advance all these questions in a court of equity, and thereby forestall the statutory provisions in reference thereto, and by these general averments have attempted to fix a liability upon the city, which is wholly speculative and contingent, and in the face of the provisions of the above statute to the effect that the bonds shall in no event become the city's liability. The following authorities are of interest in this connection: German Nat. Bk. v. Covington, 164 Ky. 292, 175 S.W. 330, Ann. Cas. 1917B, and note p. 192; City of La Porte v. Gamewell Fire, etc., Co., 146 Ind. 466, 45 N.E. 588, 35 L.R.A. 686, 58 Am. St. Rep. 359; Beard v. Hopkinsville, 95 Ky. 239, 24 S.W. 872, 23 L.R.A. 402, 44 Am. St. Rep. 237; Addyston Pipe, etc., Co. v. Corry, 197 Pa. 41. 46 A. 1035, 80 Am. St. Rep. 812.
The averments of the bill as to the statement made by the mayor clearly indicate such statements was of no binding legal effect upon the city, and the answer expressly avers that the bonds will only be sold within the limitations prescribed by law. We are of the opinion injunctive relief should not be rested upon this feature of the bill.
It is further averred that the city has employed an attorney, and that his compensation will be included as a part of the cost of the improvements. Whether such expenditure may be said to come within the provisions of section 1365 of the Code of 1907 need not be here determined, as this is a matter to be considered upon the hearing of the matter of assessment, and clearly gives rise to no cause for the injunction sought.
We have reached the conclusion that the trial court correctly decreed in dissolving the temporary injunction, and the decree to that effect is here affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and MAYFIELD, JJ., concur.