County of Mobile v. Kimball

APPEAL from the Circuit Court of the United States for the Southern District of Alabama.

By an act of the General Assembly of Alabama, entitled 'An Act for the improvement of the bay and barbor of Mobile,' approved Feb. 21, 1860, the collector of customs for the port of Mobile, the mayor of the city of Mobile, and the president of the board of revenue for the county of Mobile, and their successors in office, were appointed ex officio a board to be styled the Board of Harbor Commissioners, for the purpose of causing the bay and harbor of Mobile to be deepened and improved. To aid the board in the performance of its powers and duties, the president and commissioners of revenue of the county were authorized and required from time to time, and as the same might be called for by the board, to issue the coupon bonds of the county, and to hand them over to the board to be sold. The proceeds were to be applied to the work as its necessities might require, and as authorized by the act. The whole amount of bonds was limited to $800,000. No steps were taken under the act. Another act was passed, Feb. 16, 1867, entitled 'An Act to provide for the improvement of the river, bay, and harbor of Mobile.' The president of the court of county commissioners of revenue of Mobile County, the mayor of Mobile, the president of the Bank of Mobile, the president of the Mobile Chamber of Commerce, and one citizen of the county of Mobile, to be appointed by the governor of the State, and their successors in office, were thereby constituted a board for the improvement of the river, harbor, and bay of Mobile. The president and commissioners of revenue of Mobile County were, by the second section, required to issue bonds for $1,000,000, payable as they might deem proper, to be delivered to the board whenever the latter might require them; and the court was required to levy and cause to be collected such tax as might be deemed proper to pay them.

The third and fourth sections are as follows:--

'SECT. 3. The said board for the improvement of the river, harbor, and bay of Mobile are hereby authorized to receive such bonds and apply them or the proceeds of them to the improvement, cleaning out, deepening, and widening of the river, harbor, and bay of Mobile, or any part thereof, or the making an artificial harbor, and such improvement, cleaning out, deepening and widening or any part thereof or all of it; or the making an artificial harbor shall be made in such manner as the said board may direct, and for that purpose they may make any rules and regulations and assess the dues or tolls to be collected on vessels or water-crafts, and do any act they may deem proper to effect the objects of this act.

'SECT. 4. That, in addition to the foregoing powers, the said commissioners are vested with the authority to purchase and condemn lands according to the provision of sect. 13 of an act for the improvement of the bay and harbor of Mobile, approved Feb. 21, 1860, and to take and receive all moneys, papers, books, records, and surveys, and all property pertaining to said commissioners, in said act, and the city of Mobile shall be vested with the title of all lands made by the deposits of all excavations in the progress of this work as provided for in said act, and the commissioners designated in this act, and all officers, clerks, and employees, shall be subjected to and be held liable to the duties, penalties, and punishments provided for in the fifteenth section of the said act.'

The harbor board was organized under the provisions of this act, and on the 24th of June, 1872, it entered into a contract with Kimball and Slaughter for dredging a channel through Dog River Bar, in the bay of Mobile. The work was to be commenced by the first day of August, 1872, and completed on or before June 1, 1873. The harbor board agreed to pay the contractors 49 1/2 cents per cubic yard of material excavated and removed, and payments were to be made in bonds of the county of Mobile issued under this act, at the rate of 82 1/2 cents on the dollar.

The work under the contract was completed March 15, 1873, and on the following day it was accepted by the engineer in charge, whose action was approved by the board.

Prior to June 1, 1873, the court of county commissioners had issued to the harbor board two hundred bonds of $1,000 each. The president of the harbor board admitted, June 5, 1873, that Kimball and Slaughter were then entitled to seventeen bonds of $1,000 each, and he delivered a written statement to that effect. The board delivered eleven bonds to them, July 29, 1873, leaving due to them six bonds.

Kimball and Slaughter, in their bill filed against the county of Mobile, claim and aver that, after the delivery to them of the eleven bonds, the board had neither bonds, money, nor other means to pay them, and that all the two hundred bonds delivered to it had been applied to the purposes for which they had been issued.

An act of the legislature of April 19, 1873, limited to the sum of $200,000 the issue of county bonds to the board, and required the latter to file a statement of its receipts and expenditures with the judge of probate of Mobile County.

On the 25th of November, 1873, the complainants presented to the court of county commissioners their claim for six bonds of $1,000 each, or their value in money at 82 1/2 cents on the dollar. The claim was rejected.

The bill avers that on the 8th of December, 1873, the complainants filed their bill in the Chancery Court at Mobile, against the county of Mobile, to compel it to deliver, through the commissioner of revenue, six bonds to them, or to require it to pay the moneyed value of the bonds, and the interest due thereon; that a decree was rendered for the complainants, which, on appeal to the Supreme Court of Alabama, was reversed, mainly upon the ground that it did not sufficiently appear that the harbor board had not fully accounted for the two hundred bonds, of $1,000 each, delivered to it by the court of commissioners of revenue of Mobile County. The Supreme Court adjudged that the bill be dismissed without prejudice.

The following act of the legislature of Alabama was passed:--

'An Act to close the Accounts and settle the Contracts made by the Board for the Improvement of the River, Harbor, and Bay of Mobile.

'SECT. 1. Be it enacted by the General Assembly of Alabama, that it shall be and is hereby made the duty of the president and commissioners of revenue of Mobile County to inquire into the validity and propriety of all claims which may be presented to them for work and labor done and materials furnished or services rendered on any contract or agreement with the said board, made or executed between the fifteenth day of June and the first day of July, in the year eighteen hundred and seventy-two, for the improvement of the river, harbor, and bay of Mobile, under the act approved February sixteenth, eighteen hundred and sixty-seven, entitled 'An Act to provide for the improvement of the river, bay, and harbor of Mobile:' Provided, such claim be presented to said president and commissioners within six months after the passage of this act; and upon the same being satisfactorily proved and shown to be still due and unpaid, it shall be the duty of said president and commissioners to provide for the payment thereof as of other claims against the county.

'Approved Feb. 23, 1876.'

Under this act the complainants, April 3, 1876, presented to the court of county commissioners their claim for six bonds, or their value at 82 1/2 cents on the dollar. The claim was rejected.

The complainants pray in their bill that the county be required to deliver to them six bonds of the county of $1,000 each, or pay their value at 82 1/2 cents on the dollar, with interest from the completion and acceptance of the work.

The cause came on to be heard upon the pleadings and proofs, and a decree was rendered in favor of the complainants. The county then appealed here.

The remaining facts and the assignment of errors are set forth in the opinion of the court.

Mr. John T. Morgan for the appellant.

Mr. C. W. Jones for the appellees.

MR. JUSTICE FIELD delivered the opinion of the court.