Cleveland School Furniture Co. v. City of Greenville , 146 Ala. 559 ( 1906 )

ANDERSON, J.

“It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.” — New Decatur v. Berry, 90 Ala. 432, 7 South. 838, 24 Am. St. Rep. 827; 1 Dillon on Munic. Corp. § 89; Smith v. Newbern, 70 N. C. 14, 16 Am. Rep. 766; Cook County v. McCrea, 93 Ill. 236; Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Eufaula v. McNab, 67 Ala. 590, 42 Am. Rep. 118; City of Mobile v. Electric Street R. R., 141 Ala. 442, 38 South. 127. The city of Greenville had no authority to execute the note sued on or to make the debt, which it evidences, a legal charge against the general fund of the municipality. No such authority was given the municipality by its charter. — Acts 1870-71, p. 121. Nor by section 2950 of the Code of 1896 and Acts 1886-87, pp. 629, 1009. —Police Jury v. Britton. 15 Wall (U. S.) 556, 21 L. Ed. 251; Blackman v. Lehman, Durr & Co., 63 Ala. 550, 35 Am. Rep. 57; Garland v. Board of Revenue, 87 Ala. 223, 6 South. 402; Wolff v. Taylor, 98 Ala. 257, 13 South. 688; Webb v. City of Demopolis, 95 Ala. 131, 13 South. 289, 21 L. R. A. 62.

In deciding that the suit cannot be maintained against the municipality, we do not wish to be understood as holding that the claim in question could not be paid out of the fund provided by Acts 1886-87, p. 1012, § 10, under the direction of- the board of education. Since the power to contract this debt was not granted in express words, we cannot hold that it is a power to be implied as incident to the objects and purposes of the corporation. Eduactional institutions are not regarded as necessarily belonging to municipal government. “They are important and contrilmte greatly to the well-being and prosperity of any town or city, as do public buildings, charitable institutions for taking care of the sick, and other like institutions, but all such are of a class and constitute subjects, not germane to municipal organization.” — Wolff v. Taylor, 98 Ala. 254, 13 South. 688.

The matters set up in the replication as an estoppel are facts that should appeal to the moral sensibilities of the board of education, or even to parents, whose cliildren have and doubtless will continue to use the desks and seats, but cannot estop the defendant by acts of ratification from repudiating or disputing an ultra vires act or contract. — Wetumpka v. Wetumpka Co., supra; Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118.

The trial court committed no error upon the ruling on the pleading; and, as the special pleas were proven, the general affirmative charge was properly given for the defendant.

The judgment of the circuit court is affirmed.

McClellan, O. J., and Haralson and Denson, JJ., concur. Tyson, Dowdell, and Simpson, JJ., dissent.