Intendant of Livingston v. Pippin , 31 Ala. 542 ( 1858 )

STONE, J.

— The provisions of the act incorporating the town of Livingston, which confer on the intendant and council their chief powers — those which bear on the questions presented by this record — aré found in section 7 of that act, and are as follows :

“Section 7. The intendant and council shall have power to pass all such orders, by-laws and ordinances, respecting the street or streets, market-buildings, pleasure carriages, wagons, carts, drays and police of said town, that shall be necessary for the security and welfare of the inhabitants thereof, and for preserving health, peace, order and good government within the said town; and to assess a tax on the inhabitants thereof, not exceeding one third the amount of the State tax which is paid for property of the same kind; * * * * to affix fines against persons violating their by-laws or ordinances, not exceeding twenty dollars for each offense; * * * to assess a tax on licenses to retailers of spirituous liquors, and billiard-tables kept for use in said town, not exceeding on the former ten dollars, and on the latter fifty dollars in any one year.” — Pamph. Acts 1834-5, p. 133.

There was an amendment of this act of incorporation, approved January 31, 1840, which declares, that “ so much of the above recited act, as fixes the amount of taxes to be raised at one third the State tax, be, and the same is hereby, repealed.” This act further provided, “Thatthe intendant and council shall have power to lay and collect a tax on real estate, negroes and other property, sufficient to defray the ordinary expenses of said corporation: Provided, they shall, in no one year, lay and collect more than three times the amount of the now county tax, together with such poll tax as the intendant and council may deem proper.” — Pamph. Acts 1839-40, p. 123.

It is contended that the act of 1840 is restrictive of the powers conferred by the original act of incorporation; that, conceding the corporate authorities, under the former act, had power to sink an artesian well, yet the latter statute takes away that power; that it can not be supposed the legislature contemplated that the intendant and council should incur a debt, which, under their power to levy taxes, they could not pay; that they have no authority to levy taxes, except to pay the ordinary expenses of said corporation; and that the expenses of an artesian well can not be classed as ordinary.

The solution of this question depends on the proper construction of the words, “ ordinary expenses.”

It is well settled, that corporations, which owe their existence to the act of the legislature which called them into being, can only exercise the powers which are expressly granted to them, such implied powers as are necessary and proper to carry into effect the powers expressly granted, and such incidental powers as pertain to the purposes for which the corporation was created. — See Central Plank Road Co. v. Mayor and Aldermen of the City of Montgomery, at last term; Ex parte Burnett, 30 Ala. 461; Angell & Ames on Corp. (5th ed.) §§ 110, 111, 112.

These implied and incidental powers are unwritten, and vary with the varying objects of the corporation. They may be, and frequently are, abridged and restricted by the express language of the act of incorporation; and, when so abridged or restricted, the positive language prevails over the implications and incidents.

Ordinary expenses are the expenditures which are necessary to cany into effect the ordinary powers of the corporation. These terms are used in contradistinction to extraordinary expenses, which would be a necessary means of carrying into effect extraordinary powers. Under the rule above laid down, the implied and incidental powers of corporations must be classed as ordinary powers, because they pertain to all corporations, unless they are taken away by legislation. Under the same rule, it is only powers expressly granted that can properly be styled extraordinary; and hence, extraordinary expenses are-those which are incurred in carrying into effect express and extraordinary powers. These principles result necessarily from the rules universally observed in construing the powers of corporations.

Looking into the act incorporating the intendant and council of the town of Livingston, we find no express grant of power which can properly be classed as extraordinary. Hence we hold, that the words “ ordinary expenses,” found in the act of 1840, have no field to operate on, and are simply supererogatory.

The intendant and council of the town of Livingston have the ordinary public powers which are conferred on municipal corporations. The express grants of power are copied in the opening of this opinion. Nothing is more important, as a sanitary and police regulation, than an abundant supply of water. Its uses are too well known to require notice here. Ve hold, that the corporate authorities had the power, as such, to procure water on the public square of the town of Livingston.

If it be contended, that the intendant and council should not have incurred the expense of an artesian well, but should have contented themselves with the cheaper modes of accomplishing the object, we answer, that this question can not be .raised in this form. The corporate authorities, having the power to procure the supply of water, were themselves the judges of the mode and manner best calculated to accomplish that object. — [Lawless v. Reese, 4 Bibb 307.] The propriety of their election, and the binding efficacy of their contract, can not be questioned collaterally. If their proposed expenditure was an abuse of their powers, any of the corporators had an ample remedy by injunction. — See Christopher v. Mayor of New York, 13 Barb. Sup. Ct. 567, and authorities cited. It needs no argument to vindicate the superior claims of this mode of redress, over the defense attempted in this case. See authorities cited in Smith v. Prattville Manufacturing Co., at last term.

It is contended, that the defendant’s demurrer should have been sustained, because there is a misjoinder of counts in the complaint. This objection rests on section 2235 of the Code, which declares, “ that a contract upon which it is necessary to assign- a special breach can not be united in the same complaint with a contract on which no such breach is necessary.” We think it a full and sufficient answer to this objection, that a suit on this contract, to recover for work and labor done under it, not only does not require a special breach, but in fact does not require a special count. When a contract, though special, is executed by one party, and nothing remains to be done but a payment of money, a recovery may be had on the common counts. — See Vincent v. Rogers, at last term, and authorities cited.

It is further objected, that the complaint does not aver that the contract declared on was executed by any person or persons authorized to bind the corporation. "We do not think this objection is sustained by the record.

The demurrer to the fourth plea was properly sustained, because that plea assumed to answer the whole complaint, when, in fact, it answered but a part of it. — Standefer v. White, 9 Ala. 527.

The other questions presented by this record are believed to be covered by the principles of this opinion.

There is no error in the record, and the judgment of the circuit court is affirmed.