Carter v. Town of Muscle Shoals , 242 Ala. 519 ( 1942 )

Suit on a promissory note by the assignee of one of a series of promissory notes given by the defendant, the Town of Muscle Shoals, Alabama, a municipal corporation.

The plaintiff in the court below, appellant here, attached to and made a part of his complaint a resolution of the city council of Muscle Shoals purporting to authorize and deliver the notes in payment of legal services rendered in resisting a petition filed under and by virtue of the provisions of sections 2326 et seq., Code of 1923, Title 37, section 17 et seq., Code of 1940, seeking to dissolve the municipal corporation, Muscle Shoals, Alabama.

Sections 2326 et seq., Code of 1923, Title 37, sections 17 et seq., Code of 1940, are as follows:

"§ 17. (2326) Municipal corporations now existing or hereafter incorporated having a population of eleven hundred inhabitants, or less, may be dissolved as hereinafter provided."

"§ 18. (2327) Three-fourths of the qualified voters residing within the corporate limits of any municipal corporation having a population of eleven hundred inhabitants, or less, may, in writing, petition to the probate judge of the county in which the same is situated, for a dissolution of such corporation."

"§ 19. (2328) Upon the filing of such petition, such probate judge shall set the same down for hearing and give thirty days' notice of such hearing by written notices stating the date and purpose of such hearing, the same to be posted at the courthouse of the county and also in a public place in the municipality sought to be dissolved, and upon the day set for the hearing, the probate judge shall hear such petition and the evidence in support of the same."

"§ 20. (2329) If upon such hearing, it appears to such probate judge that three-fourths of the qualified voters of such municipal corporation are in favor of the dissolution of the same, he shall make a decree dissolving such municipal corporation, and thereupon such municipal corporation shall be dissolved, and shall cease to exist."

The demurrer to the complaint proceeds upon the theory that the town has no authority to contract for legal services to resist a petition filed in pursuance of the foregoing Code sections. The authority of the town to make such a contract is the primary question here presented for consideration.

Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged or entirely withdrawn at its pleasure. State v. Gullatt, 210 Ala. 452,98 So. 373.

In the case of Colvin v. Ward, 189 Ala. 198, 66 So. 98, this Court said: "It is established that a municipal corporation may exercise these, and only these powers: Those granted in express terms, those necessarily implied in, or incident to, the powers expressly conferred; and those indispensably necessary to the accomplishment of the declared objects and purposes of the municipality. New Decatur v. Berry, 90 Ala. 432, 7 So. 838, 24 Am. St. Rep. 827; Cleveland Furniture Co. v. Greenville, 146 Ala. 559,41 So. 862; City of Eufaula v. McNab, 67 Ala. 588, 42 Am.Rep. 118; Ex parte Mayor, etc., Florence, 78 Ala. 419."

The right to dissolve, within the prescribed limits, is conferred upon the qualified voters residing within the corporate limits of the municipal corporation. A municipality of the class here involved comes into being by the will of the people voluntarily expressed at an election held for that purpose. The procedure to dissolve it is by the will of three-fourths of the qualified electors voluntarily expressed by petition to the probate judge of the county in which the municipality is situated. The municipality itself cannot intervene.

The question of a dissolution is for the qualified electors. That power is expressly reserved to them. There is no such power given the town council, and no implied power could be exercised that would not come within the objects and purposes for which the corporation was created, and not reasonably necessary and proper for the discharge of the functions committed to them. Tharp v. Blake, Tex.Civ.App., 171 S.W. 549.

The obligation sued on is ultra vires and void. Since all persons dealing with a municipal corporation are held to a knowledge of its powers and of the powers and authority of its officers, an assignee of a contract ultra vires the corporation can take nothing thereunder. Pearson v. Duncan Son, 198 Ala. 25,73 So. 406, 3 A.L.R. 242; City of Eufaula v. McNab, 67 Ala. 588, 42 Am.Rep. 118. The defect appears on the face of the complaint, and, in my opinion, the demurrers were properly sustained.