Commissioners Court v. Rather

48 Ala. 433

Opinion

PETERS, J.

No question was made on the argument at the bar as to the legality of the bonds in controversy in this suit. It is understood that this was admitted, and that they created a legal-debt against the county of Limestone, which ought to he paid. But it was insisted by appellants that mandamus was not a proper remedy to enforce their collection, and that the court of county commission ers of Limestone county had no authority to levy a special tax for theh payment; that the power given by the act of the legislature to issue the bonds and to levy a tax for their payment was a special authority, which was limited both in the manner and the time of its execution; that such limitations were peremptory, and not merely directory; and they can not be disregarded in the exercise of the authority conferred. This raises the sole question in the case. But before I proceed to discuss it, it may be proper to remark that it is the opinion of the court, that the bonds in controversy in this case, which were issued by the court of county commissioners of Limestone county, under the act of the general assembly of this State, entitled “ An act to authorize the court of county commissioners of Limestone county, State of Alabama, to subscribe to the' capital stock of the Tennessee and Alabama Central Railroad Company,” passed over the veto of the goyernor, on the 14th day of December, 1855, create a valid debt against said county, so far as the same remain unpaid. When bonds are so issued by the county under authority of law, and in conformity with law, the rule of judicial decision is abundant and emphatic, that debts so created can not be repudiated.—County Commissioners of Knox County, Indiana, v. Aspenwall et al., 21 How. 539; Woods v. Lawrence County, Pennsylvania, 1 Black, 386; Thompson v. Lee County, Iowa, 3 Wall. 327; Gelpcke v. City of Dubuque, 1 Wall. 175; Mitchell v. Burlington, 4 Wall. 270, 274; Campbell v. City of Kenosha, 5 Wall. 194; The City v. Lamson, 9 Wall. 477; Gibbons v. Mobile & Great Northern Railroad Co., 36 Ala. 410; Stein v. Mayor and Aldermen of Mobile, 24 Ala. 591, and cases cited in appellant’s brief; also, Ex parte Selma & Gulf R. R. Co., 45 Ala. 696.

And these bonds, thus issued under said act, are not such claims against the county of Limestone as are required to be presented for allowance, as prescribed by the Revised Code, within twelve months after the time.they accrue or become payable, else they become barred. — Revised Code, §§ 907, 909. These bonds are not such claims as those referred to in the sections of the Revised Code above cited.. The act authorizing their issuance renders it wholly unnecessary that they should be audited and allowed by the court of county commissioners, and they are not required to be registered as claims of a different character, nor are they to be paid by warrants on the county treasury, drawn by the judge of probate, but altogether in a different way.— Pamph. Acts 1855-56, p. 281, No. 299, § 8; Pamph. Acts 1857-58, p. 331, No. 329, §§ 1,2,3,4; Dale County v. Gunter, 46 Ala. 118.

I will now proceed to' discuss the question of the remedy which has been pursued in this case, and in this connection it will be necessary to notice so much of the statute authorizing the issue of the bonds as shows the duty devolved on the court of county commissioners by that act. These duties are imposed by sections 1, 3, 4, 5, 8,19 and 20 of the act of December 14, 1855.

Under the provisions of this act the county of Limestone subscribed for stock in the said Tennessee and Alabama Central Railroad Company, and issued its bonds to pay for the same, to the amount of two hundred thousand dollars. This appears to have been done before the 8th day of February, 1858, because on that day an act of the general assembly of this State, entitled “An act to authorize the sale of the bonds of the county of Limestone,” was approved, and became a law. These bonds are referred to in said last named act as having been already “ issued by the court of county commissioners of said county in aid of the Tennessee and Alabama Central Railroad Company,” under the act first above quoted. — Pamphlet Acts 1857-58, page 331, No. 329.

It is now the fixed and well settled law of this country, that the law in force at the time a contract is entered into, becomes a part of it, both as to its stipulations and also as to the remedy, which may be resorted to to carry the stipulations into effect. And neither the law governing the stipulations nor the remedy can be so altered after the execution of the contract as to impair any rights, whether of remedy or otherwise, which grew out of the contract on the day it was made. The obligation of a contract extends not only to the stipulations, which the parties have agreed upon, but to the rights belonging to the remedy on the day the contract bears date. The mode of enforcement, the practice, may be altered, but not so as to impair the rights of the parties under the contract, as they existed at the date of its execution.—White v. Hart, 13 Wall. 646; Van Hoffman v. City of Quincy, 1 Wall. 535, 550; Green v. Riddle, 8 Wheat. 92; Ogden v. Saunders, 12 Wheat. 231; Mason v. Haile, 12 Wheat. 373 ; Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; Terrell v. Taylor, 9 Cranch, 43; Sturges v. Crowningshield, 4 Wheat. 122; Beers v. Haughton, 9 Peters, 359; Brown v. Kenzie, 1 How. 319; McCracken v. Haywood, 2 How. 612; Planters Bank v. Sharp, 6 How. 327; also, Gelpcke v. City of Dubuque. Then, there is no such thing as a lapse of the remedy which entered into the contract for its enforcement at its execution. This lives as long as the contract itself, save in such case, as the law declares, that unless it is resorted to within a certain period, it shall not be available at all. In jurisprudence, it is mere sophistry to speak' of an obligation without a remedy. The power to enforce the obligation is its legal virtue. When this is gone, there is nothing left upon which courts can act. New remedies may be added, and the former remedies may be left unimpaired, but where the right depends upon contract, the former remedies can not be taken away, so as to effect injuriously the contract in its stipulations or in the duration or benefits of its remedies. White v. Hart, 13 Wall. 616, and cases supra. It is certainly clear, that the object of the act of December 11th, 1855, above quoted, was three-fold: 1, To authorize the county of Limestone to subscribe for two hundred thousand dollars worth of the stock of the Tennessee and Alabama Central Eailroad Company, to aid in the building of their road. — Sections 1, 2,3,1, and title of the Act, Pamph. Acts 1855-56, pp. 291-2. 2. To authorize the issuance of county bonds for the payment of the stock thus subscribed. Section 8, Acts, supra ; also, Pamph. Acts 1857-58, p. 331. 3. To provide a speedy and certain means to raise the funds for the payment of said bonds as they fell due.-^-Sec tions 10,11, Act of 1855-56. The mode to provide for the payment of the bonds is a part of the remedy. This provision for the payment of the bonds required the court of county commissioners of Limestone county to levy a tax for this purpose, and it made it the duty of the tax collector to collect the tax thus levied, and pay it in redemption of the bonds. — Sections 5, 6,10, Act supra. For the convenience of the county, the payment of the bonds was extended over the period of ten years, at a stipulated eamount for each one of these years. It is no where intimated in the act, that if- the bonds were not paid in the time specified, then there should be no tax levied and collected for their payment. The bonds, taken in connection ■with the act under which they were issued, were a charge upon the county, to be paid by a levy and collection of taxes for that purpose. This is the undertaking and promise stipulated in the act; and the court of county commissioners is the agency through which this undertaking and promise is to be performed and carried into full effect. It is true, that the court could not levy the proposed tax within less time than ten years; because a shorter time is negatived by the language and purpose of the act; and in this way it was forbidden. But it seems equally certain that they are not forbidden to do this after ten years had expired, in the event that the bonds, or any of them, remained unpaid after that time. The object of the tax was to pay the bonds, and the court was authorized and required to see that this was done. In such case, the limitation of the time, without negative words, is not essential. It is merely directory, and it may be disregarded. — 2 Coke Inst. 43; Smith’s Com. on Stat., p. 782, et seq., § 670, et seq.; Walker v. Chapman, 22 Ala. 116; Savage & Darrington v. Walche & Emanuel, 26 Ala. 619; French v. Edwards, 13 Ala. 506; and numerous cases cited in appellant’s brief. The legislative purpose that the bonds should be paid is just as evident 'as the purpose that they might be issued, and the authority to accomplish the latter purpose survives until its functions are fulfilled. The extension of ten years was in favor of the county, for the convenience of its people, and not a limit on the authority of the court. The intention of the legislative body is to govern in the construction of its statutes.—Blakeney v. Blakeney, 6 Por. 109; Thompson v. The State, 20 Ala. 54; Smith’s Com. on Stat. page 789, § 676; also, p. 611, § 451. Here, it seems altogether reasonable to confine the limitation of the time, not to a limitation of authority of the court of county commissioners to provide the means to pay the bonds, but to a limitation in favor of the county, that the indulgence for this purpose should extend over the period of ten years at least. If we do this, and this was evidently one of the objects of the act, then, the power to provide the means to pay did not expire until its purpose was completed; that is, until the bonds were paid or otherwise discharged. It has been held that where there is not in the law an express limitation of the power given to do a certain thing, an inference will not be made which will defeat one of the objects of the law.—Cook v. Hamilton Co., 6 McL. 112; see, also, numerous cases collected in appellees’ brief, But besides this, the 20th section of the act above quoted empowers the court of county commissioners to “do all and other acts and things, not inconsistent with the provisions of this act, which may be necessary and proper to give/wZZ effect to the objects and provisions of this act.” — Pamph. Acts 1855-56, p. 297, § 20. It has already been shown that the objects of the act were to subscribe for the stock, issue bonds to pay for it, and to provide for the payment of the bonds. The doing of these things gives full effect to the law. And until all these things are done, the objects of the act are not carried into full effect. But all have been done, save one; that is, the payment of a certain number of the bonds which are long since due and remain unsatisfied. The power to pay the debt thus created goes along with the power to contract it, and the Hmitation of this power is not to be implied from the limitation that it should be paid by installments. This limitation is only a limitation in favor of the debtor, but not a limitation against the creditor. The county has had the benefit of this limitation, and ought not now to complain if it is compelled to pay the debt, which it is admitted it justly owes. That it is a hard debt to pay, may not be denied. This is not now a matter tbat can be of any weight in this tribunal. It might have been wise to have considered this before the debt was contracted. After that, it is too late to urge it as a plea of any force in a judicial tribunal.

This, it seems to me, is a sufficient answer to the objection that the tax in this case is a special tax, and that the power to levy and collect such a tax is a special authority; and if this authority is limited in the manner and.time of its execution, such limitation is peremptory, and not merely directory. The objects of the act show that this is not its true construction. The objects of the act the court of county-commissioners was authorized and empowered fully to effect; that is, to contract the debt and to pay it.

It was, then, the legal duty of the court of county commissioners to have continued to levy the tax until the bonds were paid. And when they refuse to perform such duty, mandamus is a proper remedy to enforce it.—Tarver v. Commissioners Court, 17 Ala. 527, and cases there cited; 3 Black. Com. 110; Tapping on Mandamus, p. 9, et seq. ; Ex parte Selma & Gulf Railroad, 45 Ala. 696; see, also, Ex parte Selma & Gulf Railroad Co., 46 Ala. 220; Walkley v. City of Muscatine, 6 Wall. 481; also, cases cited in appellees’ brief.

Before .closing this opinion, it is due to the able counsel on both sides of this important cause to acknowledge, that the court has been greatly aided by the candid argument at the bar, and the extended and well prepared briefs, in which the authorities are dilgently and learnedly collated and discussed.

The judgment of the court below is affirmed, with costs.