Fitts v. Commission of City of Birmingham , 224 Ala. 600 ( 1932 )

The only question considered in the majority opinion is whether or not the contract was one within the implied powers of the municipality.

It is well settled by the decisions of this court that municipal corporations can exercise those powers only which are granted in express words or fairly implied to those expressly granted and those essential to the declared objects and purposes of the corporation, and not those which are simply convenient, but not indispensable.

As to the right and authority of a municipal corporation to expend public revenue to obtain or oppose legislation before the State Legislature or the Congress, there is a sharp conflict in the authorities. In the early cases by the Massachusetts court, it was held that the town had no right to expend public funds for the compensation of or expenses to one appearing before the legislature, even for legitimate purposes; as did the Maine court in Thompson v. Inhabitants of Pittston,59 Me. 545; and such was the holding of the Kentucky court, Henderson v. City of Covington, 14 Bush (Ky.) 312; and the Washington Court, State ex rel. Port of Seattle v. Superior Court of Washington and for King County, 93 Wn. 267,160 P. 755, L.R.A. 1917B, 354; and the Oklahoma Court, W. S. Field v. City of Shawnee, 7 Okl. 73, 54 P. 318.

On the other hand, some of our courts have taken a broader view as to the powers of municipal corporations, and have upheld claims of this character. The Connecticut court, in the case of Farrel v. Town of Derby, 58 Conn. 234, 20 A. 460, 7 L.R.A. 776, upheld the authority of the town under its general implied powers to employ a representative to attend the General Assembly to look after the interest of the town as the same might be affected. The court, proceeding upon the theory that procuring and defeating certain measures might affect the general welfare of the town and the taxpayers and citizens thereof, and as this was within the inherent power of the municipality, the expense of having the interest of the town so protected was necessarily incident to the power of enjoying this protection. The court had before it the Massachusetts and Maine cases, and declined to follow them. It is also well to note that the rule declared in the early Massachusetts cases has been changed by statute. Davis v. Commonwealth, 164 Mass. 241, 41 N.E. 292, 30 L.R.A. 743. The Connecticut case finds support in the cases of Bachelder v. Epping, 28 N.H. 354; Meehan v. Parsons, 271 Ill. 546,111 N.E. 529; In re Taxpayers Freeholders, 27 App. Div. 353,50 N.Y. S. 356.

In the more recent case of Valentine v. Robertson, 300 F. 521, the United States Circuit Court of Appeals considered this question in connection with the former cases, and demonstrated that the weight and perhaps better authorities favor a narrow or literal construction of the authority of the municipality.

While there is a division of authority, this court has pursued the policy of a strict construction of the power of municipalities to expend public funds or to incur debts and liabilities. Colvin v. Ward, 189 Ala. 198, 66 So. 98, and numerous cases there cited. This rule of strict construction has also been applied as to counties. Stone, County Treasurer, v. State ex rel. Armbrecht, 220 Ala. 437, 125 So. 653.

I find nothing in the Act of 1915, p. 296, § 6, giving the governing body of the city of Birmingham express authority to expend funds for the purpose here involved. While the delegation of the police power is broad, I do not think that it is essential to the proper and necessary exercise thereof to have incurred the expense in question, and the trial court erred in denying the equity of the bill of complaint upon the theory that the city had the implied power to expend funds for the purpose of compensating counsel to represent it before the Legislature, as charged in the bill of complaint.

Aside from the foregoing, I cannot escape the conclusion that the averments of the bill clearly bring the case within the principle "that agreements for the procurement of favors from public officials in the discharge of public duties by personal solicitation or influence as considerations to be addressed to them over and above the merits of the actions sought" are void as against public policy. Bush v. Russell, 180 Ala. 590,61 So. 373, 376; Anderson v. Blair, 202 Ala. 209, 80 So. 31; 13 C. J. 430, § 368, and authorities cited under note 55, page 429.

I therefore respectfully dissent.