Abbildungen der Seite
PDF
EPUB
[ocr errors]

that the plans were defective and insufficient; that the Falls City Construction Company had taken forcible possession of the lots upon which the building was to be constructed, and refused to deliver them to the board. There were prayers that the defendants be required to restore the lots, and that they be restrained from interfering with the possession and control of them by complainants; that they be restrained from proceeding to build the courthouse. or in any manner enforcing or attempting to enforce the contract; as against W. L. Stevens, that he be restrained from proceeding with his application for mandamus in the circuit court to compel the president of the board to sign the warrant, and praying for the cancellation of the contract between Stevens and the board. Upon execution of a bond for $10,000, injunctions as prayed for were issued. The injunction as to the Falls City Construction Company was so modified as not to require surrender of the lots.

Upon petition of Falls City Company, Johnson, and Stevens, the case was removed to the United States District Court. Motions to dismiss the suit were filed by the Falls City Company and by Stevens on July 19, 1915.

On August 15, 1915, an agreement of settlement was made, signed by attorneys for all the parties. For Stevens, the agreement was “executed by his attorneys of record, Parks & Prestwood.” The agreement saved all claims and rights of Stevens, except “Stevens waives damages on injunction bonds." On September 1st, Stevens, by other attorneys, filed a “motion and objection," objecting to the dismissal of the suit pursuant to the agreement, and denying that he had executed or authorized the execution of the agreement.

On October 23, 1915, Stevens filed an answer and counterclaim. The counterclaim alleged that on the 1st of September, 1915, he filed with the board of revenue of Covington county a petition, and claimed that he had earned under this contract 5 per cent. commission on $144,500, three-fourths of which was to be paid at the time of the letting of the contract by warrants on the county treasurer, bearing interest at 6 per cent., and the remainder during the period of the erection of the courthouse, the total sum amounting to $7,225; also a claim for damages sustained as the result of the county's having filed a bill in the chancery court against him and others, which was removed to the United States District Court, and wherein he was charged with bad faith and fraudulent conduct under his employment, the amount of this actual and exemplary damages being $22,775, the total amount of his claim being $30,000 ; that he alleged that he had been allowed the sum of $4,198.14 for part of the services rendered, and that the board had delivered to him a 6 per cent. interest-bearing warrant, maturing February 1, 1916, signed by four members of the board, but not by W. S. Simmons, the president; and that, on this account, the warrant had been of no value to him, and that he presents the same to the president again, with the request that it be signed. The counterclaim alleges that the allegations and prayers of this petition to the board were true; that it had been regularly forwarded to the board of revenue by registered mail; that it had been sworn to by him, and that all the formalities of the law had been complied with; and that the board, although having had ample time to determine what action should be taken, failed and refused to take any action whatever. He alleged in his counterclaim the truth of the statements of this petition to the board, and prayed for judgment for the amounts claimed, $7,225 and $22,750. He further alleged that, since the filing of the suit, Covington county had compromised with the Falls City Construction Company by paying them a sum of money to be relieved from the contract; that the company had surreudered possession of the lot upon which the courthouse was to be constructed; that a new contract had been let for the construction of the courthouse at $75,000, and that the county would issue warrants evidencing indebtedness for this amount, payable in 15 years : that the county was creating other indebtedness, the result of which would be to postpone the payment of the debt due him—and prayed that an injunction issue, restraining the board from entering into any contract, or issuing warrants, for the construction of a courthouse, and prayed for a temporary re straining order pending trial. In the alternative to a judgment for the $7,225, he prays that, if the $4,198.14 be held not due, plaintiff county, through the

[ocr errors][ocr errors]

(256 F.) f its board of revenue, be required to recognize and sign said warhat the treasurer be required to register the same. mber 9th, Stevens filed a petition, which was allowed, that he be: to withdraw his plea to the jurisdiction and motion to dismiss filed On November 12th, plaintiff filed a motion to dismiss its suit in with the agreement of August 13, 1915. The court denied defends' motion for injunction pendente lite, and dissolved a temporary

order theretofore granted. Plaintiff's motion to dismiss its suit
2.
-1 judge, upon hearing of the case, acquitted the board of revenue
as of any collusion, corruption, or fraud. Judgment was entered for
r the amount of his warrant, with interest at 6 per cent. from De-

1914, and for $3,026.86, balance due on contract on the bid of
The claim for damages for libel and upon the injunction bond was
b. Appeal by county, and cross-appeal by Stevens.
Powell, of Greenville, Ala. (Powell, Albritton & Albritton, of
a, Ala., on the brief), for appellant and cross-appellee.

L. Smith, of Brewton, Ala., and R. E. Milling, of New Or-
1. (Foster, Milling, Saal & Milling, of New Orleans, La., on
), for appellee and cross-appellant.
- WALKER and BATTS, Circuit Judges, and EVANS, Dis-
ge.

0

e

CS, Circuit judge (after stating the facts as above). Dismissal. ill in this cause was filed June 21, 1915; the petition to reas filed July 5th, and on July 19th, the defendant Stevens filed

to dismiss the bill for several grounds there indicated. On 13th, an agreement was entered into, signed by all the parties, e of Stevens being signed by Parks & Prestwood, as attorrecord, by which it was agreed that the Falls City Construcmpany should receive from the county $10,500 in compromise Element of its claim and cancellation of its contract for the ction of the courthouse and surrender the lots. It was agreed

bills should be dismissed by the county, and it was stipulated e rights of Stevens with reference to his suit to compel the n to sign his warrant, and any claims which he might have the county, would not be affected. It was, however, agreed tevens waives damages on injunction bonds.” Shortly after cution of this agreement, Stevens undertook to repudiate it, that Park & Prestwood had no authority to agree to the disof the suit. At the time of the making of this agreement, the above referred to, filed by Stevens on July 19, 1915, asking the o dismiss the case, was pending. This motion had been signParks and by G. W. L. Smith, who has throughout been the atfor Stevens. Parks & Prestwood had also represented Stevens Merrill suit, and in the mandamus proceeding pending in the ourt. The evidence indicates that they were representing Stevthis case. Parks & Prestwood, as attorneys in the case, had a o secure the dismissal for which Stevens was at the time praya motion on file. It may be, however, they were without au

to bind Stevens to a waiver of damages on injunction bonds, e ruling of the trial judge is sustained.

[1] Necessity for Filing Account with the Board of Revenue.Complainant contends, with reference to the several items entering into the counterclaim of Stevens, that they cannot be entertained by the court, because not filed with the board of revenue in the manner and under the conditions required by the statute. The contention of the defendant is that these provisions of the Alabama law which require the filing of claims with the county board may regulate the jurisdiction of the state courts, but cannot affect the right of a person having a claim against the county to maintain an action in the federal court. A number of authorities are adduced which are assumed to sustain this proposition. It is, of course, not within the power of the Legislature of any state to deprive the courts of the United States of the powers and jurisdiction which the Constitution and the laws have given them. On the other hand, a state may determine the conditions and circumstances under which its counties may incur liabilities. The counties are administrative units of the state, receive all of their powers from the state, and can incur no liabilities except under the terms and conditions imposed by the laws of the state. County boards are created to administer the financial affairs of the counties; and law have been passed in Alabama, as in most of the states, requiring that claims against the county be presented to such boards, and those bodies given an opportunity of considering and determining the validity of and providing for the payment of them, before suit. Any law which undertakes to limit subsequent action upon claims of this character to a state court would, of course, be in conflict with the rights and powers of the federal courts, and would not be sustained. But the usual, reasonable, and altogether proper regulations, requiring that a claimant against the county should give the county an opportunity of discharging an indebtedness before subjecting the county to the trouble and expense of litigation, will be sustained by the federal courts, as they should be by all courts. Cases which appear to be in conflict with this proposition are those in which, by the issuance of bonds, or other evidences of indebtedness, the county boards have already definitely determined the liability of the county.

The proper application of these principles will not, however, require that futile, foolish things be done. The county is in no position to contend that anything more than the purposes of the law should be accomplished. If any action shall have been taken by the county board which will be equivalent to rejection of the claim, or which make clear that the filing of the claim would be futile, the claimant will be excused from following the forms of the law.

The claims asserted in the counterclaim are as follows:

(1) A claim for 5 per cent. on the amount of the accepted bid for the construction of the courthouse, amounting to $7,225. It is alleged, with reference to this claim, that a warrant for $4,198.14 had already been issued, and that, if its legality be established, the $7,225 is to be correspondingly reduced.

(2) A claim for $1,998 for attorney's fees, based upon the injunction bond given herein.

[ocr errors][ocr errors]

(256 F.) - $22,775 for damages for libel, based upon allegaigs in this case. to the first of these claims, the warrant for $4,198.14 e action of the board of revenue. No further action any other board, was necessary before taking such e required to enforce the claim. The complaint llegal the contract on which the warrant was based, rain the prosecution by Stevens of a suit to compel e board to sign the warrant. This suit of the counthe result of action by the county board, and would necessary any presentation of the claim, even if it en passed upon. erclaim for the balance, there was also a lack of a claim with the county board. It had, prior to that lution to the effect that the contract of Stevens, unn was made, was void. It would not consist with orise to require that, under such circumstances, a pery present a claim based upon the contract. The conthe payment of this balance as the work progressed; der which he made the claim, and the contract with mpany, by which the amount of the claim and the ere to be determined, have both been repudiated by county by this action rendered itself liable to suit ontract, subject to such defenses as may be legally

nce to the claim for attorney's fees, the claim is inction bond filed in this case. It is an incident to

been voluntarily entered into by the county. When e, it must carry all the necessary burdens and risks amages be established against the principal on an an injunction suit, the judgment will as naturally for costs against a losing litigant. There was no the claim with the board. or damages for libel, based upon the allegations in t in this case was not filed until September, 1916. on by the board of revenue, and 90 days had not ailing of the claim when the counterclaim was filed nendment to the counterclaim, filed after the exfrom the date of the receipt of the claim by the and alleging that fact, would appear to have the e claim had been then for the first time filed as a claim, however, as presented to the board of revesingle amount for "actual and exemplary damages,”

meet the requirement of the statute for an itemiz

id Warrant for $4,198.14.-One of the items reIt's counterclaim is $4,198.14, allowed by the board r 5, 1914, as 3 per cent. on the gross amount of the

A warrant was prepared, which was signed by all he board except the president, who refused to sign.

The resolution under which this warrant was issued provided for payment in February, 1916, and a notation on the warrant showed it payable at that time. The defendant set up that, by reason of the refusal of the president to sign the warrant, he had been unable to register the warrant or use it. He prayed for judgment on the warrant, that the county, through the president of its board of revenue, be compelled to sign the warrant, and that the treasurer of the county be required to register it. He prayed, in the alternative, that he have judgment for the $7,225, which was 5 per cent. on the bid of the Falls City Company as finally accepted. To the demand for judgment on the warrant for $4,198.14, the plaintiff pleaded that there was no allegation that it was due, and the fact that it was shown not to be due at the time the counterclaim was filed. The obligation, if it be one, matured before the trial, and the amendment filed by defendant May 15, 1917, in a statement of the claim included the item :

“Due by county warrants bearing 6 per cent. interest from December 5, 1914, $4,198.14."

[ocr errors][ocr errors][ocr errors][ocr errors]

This statement would doubtless be a sufficient allegation that the warrant was due. But the warrant is not executed as required by law, and cannot itself be the basis of a suit. Local Acts of Ala. 1911, pp. 231, 232.

The order of the board of revenue approving the claim is open in the state court to the objection that an allowed claim cannot be sued upon. Suit to require the president to sign the warrant, or to compel the treasurer to register it, might be maintained; but the allowance itself has the force of a judgment, so long as it remains without attack in the proper way.

In the present case, the judgment asked for against the president or the treasurer cannot be given, because neither is a party. It seems however, that in a suit of this character, in the federal court, judgment can be given for the amount of the claim, notwithstanding it has already been allowed; judgment being an essential prerequisite to mandamus or other executory process. County of Greene v. Daniel, 102 U. S. 187, 26 L. Ed. 99. Again, the answer of defendant to plaintiff's action, wherein it undertakes to nullify the effect of the allowance and the warrant, presents an issue, the determination of which will have substantially the same effect as a suit upon the warrant. If the county fails to nullify the order and warrant by a failure to sustain its charges of fraud and nonperformance of contract, the judgment will necessarily carry the inference of the validity of the claim. If defendant should undertake, by mandamus in the state courts, to enforce his rights, the validity of his claim would be held a thing adjudicated.

That the county may institute suit to cancel an allowed claim, even where a warrant' has been issued, is thoroughly established; and if, in this case, the allegations of its bill are sustained by the evidence, either with reference to fraud or to failure of consideration, judgment canceling the warrant and nullifying the claim would have to be given.

The case of Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 South. 971, arising out of the facts involved in this case

« ZurückWeiter »