Hays v. Ahlrichs , 115 Ala. 239 ( 1896 )

HEAD, J.

Under the Code of 1886, sections 3612 and 3613, appeals from courts of chancery in advance of final decree, are allowed only from decrees sustaining or overruling demurrers to bills, pleas to bills, motions -to dismiss bills for want of equity, and from orders- sustaining or dissolving injunctions. We will-, therefore, in this case, consider only the rulings, assigned as error, which are of the character of those stated, viz.: The order dissolving' the injunction, and the orders sustaining demurrers to the original bill.

It is very clear that the judge of probate, in his official capacity, has no authority to maintain a bill of this character. It is not a part of his official functions ór duties to sue for the correction or prevention of public abuses committed or threatened by other officers or individuals. On his part this bill is filed in his official capacity only. As, thus suing, he cannot maintain it, those joined with him cannot. The demurrer for misjoinder was properly sustained.

The bill, in the fifth paragraph thereof, attempts to set up collusion, in the making of the contract for the building of the vault, between Ahlrichs, the contractor, and his co-respondents. The averment of collusion is thus: “That said contract or agreement was made by collusion or agreement between said Ahlrichs and co-respondents, or some of them, in order to give said Ahlrichs an undue advantage in the erection of the vault, over any other persons, to the great damage and injury of the county.” The objection taken to this averment by the demurrer touching this point is, that-it does not set out facts constituting collusion, but states only the conclusion of the pleader. The demurrer is well taken. The charge fails to show how the purpose of some of the commissioners to give Ahlrichs an undue advantage over others was injurious to the county. Indeed, it does not follow from the charge, as made, that Ahlrichs secured any advantage over others even, nor how the making of the contract with him would or could secure' to him an undue advantage over others, if such advantage was of any materiality to the case. The bill does not-show, by any sort of averments, that the scheme of building a vault, or the plan adopted, was fraudulent, These, so far as the complainants inform us, were inspired .by honest motives. The bill, in this regard, merely complains of the exercise of the discretionary powers of the commissioners’ court, and proposes that no vault at all, or one of a different and cheaper character, should be built. As to those matters, so long as- the commissioners act within the limit of their authority, and in good faith, their action cannot be assailed. See authorities collected in note to McCord v. Pike, 2 Am. St. Rep. on page 93; Railroad Co. v. Dunn, 51 Ala. 128. These considerations determine that the fifth and seventh, as well' as the sixth, grounds of demurrer were well taken.

We do not mean here to lay down any rules as to how far contracts of this character, made by the commissioners, acting out of a lawfully authorized term,of court,, are valid; or to what extent the action of the commissioners’ court, had in lawful term time, in reference to such contracts, may be assailed for fraud or other cause. The assignments of error do not raise those questions in a way that we can properly decide them. The bill charges illegality of the contract because not made or authorized at a lawful term of the commissioners’ court, and the demurrer to it, in that aspect, was overruled by the chancellor. So, the question is not before us.

The seventh paragraph of the bill shows no private interest of Schlosser in the contract. As a commissioner and citizen he may have felt an interest in the matter, and by reason thereof may have influenced the other, commissioners to make the contract, and 1ns judgment may have been so at fault that he induced the making of the .contract against the interests of the county,. This state of facts would consist with the averments of this paragraph. The eighth ground of demurrer was, therefore, properly sustained.

The weakness and incompetency of the commissioners can not be inquired into in a collateral proceeding of this kind. If they were unfit for their offices, resort must be had to some other method of dispensing with their services. It can not be done by attacking their official acts, after they have performed them, on the ground of general unfitness and incompetency. ■ The demurrer to the eighth paragraph of the bill was properly sustained. The ninth paragraph of the bill, as the demurrer to it points out, does not show, with sufficient definiteness;' what false and fraudulent representations were made by Ahlrichs and Schlosser, as to the character, quality and cost of the materials for the vault ; and, under familiar rules of pleading, the demurrer was properly sustained.

We will add, in this connection, that it may be well to inquire, in the further prosecution of the suit, under what circumstances, if any, tax-payers may maintain a bill against the members of the court of county commissioners, who are charged with no’fraud or collusion, or excess of legal authority, -to, rescind a contract entered into by that court, through the inducement of false and fraudulent representations on the part of the other' contracting party, and one member of the court. The demurrer does not raise the question, and we express no opinion upon it.

, There was no error in any of the rulings of the chancellor, upon demurrer, now before us for review.

The answers (which are sworn to) fully and unequivocally deny each and every allegation of the bill, upon which a conceivable equity for the relief sought could be predicated, and the injunction was,' hence, properly dissolved.'

The commissioners’ court may lawfully adjourn a regular term to some future day, before the. beginning of the next regular term ; and acts done at such adjourned term are of the same validity as if done .on the day- of the regular meeting prescribed by law.—Lewis v. Intendant, etc., 7 Ala. 85.

There is no error in any of the rulings of the chancellor before us for review, and his .,decree, torching these matters, is affirmed,. . ,

Affirmed,