
    Matkin et al. v. Marengo County et al.
    
    
      Bill in Equity to enjoin Removal of Court Bouse.
    
    1. Court of county commissioners; authority for building new court house. — A court of county commissioners has sole and exclusive power and authority in the matter of determining the necessity for a new court house for a county and having the same located within the corporate limits of the town established as the county site; and in the exercise of their discretion in such matters, their acts, when free from fraud, corruption or unfair dealing, can not be questioned or controlled by any-judicial tribunal.
    2. Removal of coitrt house; construction of Sec. of the Constitution of 1901. — Section 41, of the Constitution of 1901, which provides “that no court house or county site shall be removed except by a majority vote of the qualified electors of .said county voting at an election held for such purpose,” prohibits the removal of a court house of a county from the town or city where it is located at the time of the adoption of the Constitution, except in the manner provided in said section; but said section does not prohibit the court of' county commissioners from erecting a new court house within the .town or city constituting the county site, on a lot other than that upon which the old court house is located, without having first submitted the question to the vote of the people of said county.
    3. Same; court of county commissioners; validity of order made at an adjourned term. — At a regular May term of the court of county commissioners of Marengo county the matter of building a new court house for sia-id county was continued until the June term of the court. At the June term of the court said -,;l... '-matter was-continued -until .the adjourned term of the ponrt in Jyly., Reid: That ,th,e order of filie court made, .at. the ad- ( journed term of the court,in July, providing for.the.building . of á new court; house was mady at a time and term when, the' ”' 'court of county commissioners had the right to exercise the '' ' ‘j)owhr' vested in it by the'statute regarding the building of a •; -'liew court house,'and said order wias valid'. .'
    Appeal from tlie Chancery Court'of 'Marengo.
    Heard before the Hon. Thos. H. Smith.
    The appellants, Titos. D. Matkin and Preston B. Glass, resident tax payers of Marengo county, filed a hill against Marengo county, Samuel P. Pro-well, individually, and as, judge of probate,of -said county, and, against: the court' of county commissioners, and the members thereof ¡individually, aud.F...M., Dodson, and W. T. Hand, in which is was averred that the court of county commissioners of Marengo ■ county, had, for the purpose of erecting a new court-house thereon,'secured a lot outside of the corporate limits of Linden, as such limits existed at the time of the establishment of the county site of Marengo county in said town, and had made a contract with Dodson & Hand to. erect such" new court house., The purpose of the bill, was to enjoin the removal of the court house of Marengo county from its then present location to the lot so purchased for that purpose and t'o have delivered' upi and cancelled the contract made by the county commissioners for the erection of said court; house on said' new location, and to have delivered up and cancelled the county warrants alleged to have been issued by the court of county commissioners for the purpose of erecting said new court house.
    On the filing of the bill a preliminary injunction was issued. The defendants answered the bill and. demurred thereto, and also moved the court to dissolve the temporary injunction upon the denials of the answer and for the want of equity in the bill.
    On the submission of the cause upon the demurrers and the motion to dissolve the injunction, the chancellor rendered a decree overruling the demurrers and overruling the motion to' dissolve'the injunction. From this the respondents appeal and assign the rendition thereof as error.-- - -• ■
    • In the- Supreme Court the decree of- the chancellor was affirmed. — Marengo Gounty v. Matkin, 134 Ala,.-. 275. After the affirmance of the decrfee the complainants filed a -supplemental bill in which they -made special reference to the original bill and averred that the court of -county commissioners' Of’ Marengo connty had rescinded its former -action in the selection-of-the lot described in-the original hill.for -the- erection1- of the-court house thereon, and had subsequently, by a resolution of said court of ¡county commissioners!; procured! another lot situated Avitbiu the limits of the toAvn of -Linden as it- existed at the time of-its establishment as -the connty site of Marengo- county, and had entered into another contract with Dodson & Hand for the erection of- the neAV court house on said lot, and a neAV court house building Avas being erected upon tbe lot so-selected. The orders-and the proceedings of- the -court of county commissioners in selecting -said lot and in making said contract are set forth in the supplemental bill, and- it is shown by said orders that they were adopted - by- the commissioners court, at a meeting of said court-held on July 9th, 1902. It was averred in said supplemental bill that while the lot AA-hich Avas selected by the court of county commissioners as the lot on which to erect a new court- house was within the corporate limits of the town of Linden as they existed Avhen Linden was established as the connty site of 'Marengo county, it was a separate and distinct lot from the one: upon AAdiich the court house Avas located at tire, time of-the filing of the bill. That the Avarrants Avhich Avere authorized by the court of county -commissioners at their meeting on July 9, 1902, to he issued for the payment of the contractors were not issued or authorized as required by law; that the meeting of the court of county commissioners held on July 19, AAras- a- meeting adjourned from -the May term of said court; that at the May term of said court the matter -of purchasing another lot and erecting a new court house Avas adjourned until the June term of the court, and at the June term of the court it Avas continued until the July term of the court, at which time action Avas taken ■thereon. It was further averred in the supplemental bill that no election, had been held for the removal of the court house from the then present location to the new lot upon which the new court house was to be built, as provided by section 41 of the Constitution, 1901, which provided that no court house or county site should be removed except by a majority vote of the qualified electors óf said county voting at an election held for such purpose; and. that under said section of the Constitution the court of county commissioners have no right to remove the court house from the present site to the lot where it was proposed to build- a new court house. It was further averred 'that since the filing of the original bill no special taxes have been' levied as provided by section 215 of the Constitution of 1901, and no debt has been authorized as provided by section 222 of said' Constitution, and no general law has been passed as provided for in said section. It was then averred in the supplemental' bill that except as therein alleged “the facts upon which the complainants base their rights to relief remain substantially as they were when the original bill was filed.”
    •’ The prayer of the supplemental bill was that the removal of the court house of Marengo county from its present site be enjoined; that the building of the new court house upon the lot purchased by the court of county commissioners for that, purpose be enjoined; that said contract for the building of a new court house be' delivered up and cancelled, and that the further negotiatiion or their use of warrants authorized to be issued by the order of the court of county commissioners be enjoined, and there was a prayer for general relief.
    ’ The respondents filed a sworn answer, in which they averred that after the affirmance of the decree’ of the chancellor by the Supreme Court in the original case, they abandoned the purpose of erecting the court house on the lot first selected and proposed another lot within the corporate limits of the town of Linden as they existed at the time of the establishment of the county site of Marengo county at Linden; and it was upon this lot within said corporate limits of Linden that they proposed to build the new court house; that acting within the power and authority conferred upon them by law, after determining that the old court house was not sufficient for the needs of the county, they had entered into another contract for the erection of a new courthouse; that this action, was taken at a meeting of the court of county commissioners on July 9, 1902, after a regular adjournment of said court from the May term, 1902, of said court; that said contract had been entered into and a large paid, of the work had been done and a large amount of money had been paid upon said contract. It Avas then averred in the ansAver that no election had been held by the qualified voters of Marengo county for the building of a new court house, or as to the removal of the said court house upon the lot upon which the new court house was being built, and that m> such election as required under the new Constitution had been held, and that said court of county commissioners has the right to build the. neAV court house on the lot which they had acquired for that purpose Avithout holding an election. In said answer the respondents denied the averments contained in the supplemental bill as to the status of the funds in the county treasury. The respondents demurred to the supplemental bill, and to, each separate portion, and. the prayer thereof upon the following grounds:
    “First That it appears from the same that the site of the said new court, house to be built for Marengo county is located Avithin the county seat of Marengo county. Second. That it appears from the same that the said new court house is not to be removed outside of or from the county seat- of Marengo county, Alabama. Third. That it appears that said court house is not to be removed from the county seat of said county. Fourth. That the facts stated in said bill do not give the honorable court jurisdiction of the subject matter of this suit. Fifth. That the alleged action of the court of county commissioners of Marengo county was a valid exercise of the authority vested by law in said court. Sixth. That it does not appear that said court of county commissioners for Marengo county, Alabama, in the matter complained of, exercised the authority vested by law in said court. Seventh. That it is not shown in or by said supplemental bill that said commissioners court has i-s-sued any -warrants- in violation of daw or. in excess of its authority. ■ - Eighth.' That it- does not appear that said conrt: has or intends to exceed its- authority in the issue 'of warrants.” ■
    The respondents also- made-a motion -to dissolve the 'preliminary inj-unotion upon the ground that the. suppler' mental bill was -without equity, and upon.the- following additional grounds: “First. -The allegations in said supplemental bill of complaint did not authorize the granting and issuance of said injunction. • Second. -T* e answer of- these respondents-, which is- sworn to, deny 'the material allegations: of-said bill. Third. It appears from-said supplemental- bill and sworn answer that said injunction should' be dissolved, Fourth. The allegations .of said hill, upon which said injunction was granted, are denied in and-by said sworn answer. Fifth. It appears •from the-denials of said- sworn answer that-the allegations of said supplemental bill upon which injunction issued aré not true.” ■ • ■ .
    On the .-submission of -the, cause upon-the demurrers, ■and upon the motion to • dissolve the injunction, the •chancellor rendered a decree dissolving the injunction and sustaining the demurrers. From this- decree the complainants appeal and assign the rendition thereof •as error.
    Gunter & Gunter, Wi-uliam H. Tayloe and W;i.tram -Ounning-itame, for appellants.
    It is respectfully submitted that the action of the commissioners court .in purchasing, a new site for a court house and contracting for the erection of a new court-house thereon is void, because, the commissioners court: is a court of limited jurisdiction, whether exercising-judicial or quasi legislative powers. — 3 BrickelPs Digest, 183, §§ 95, 96, 97; 2 Mayfield’s Digest, 941, §§ 114, 122.
    No- court house or county- site can he removed, esc. Constitution, § -41; 8 Am. & Eng. Encyc. 20 (new ed) ; 7 7b. 10, 12; Moffatt v. State, 40 Ind. 217-;- Jachsun '% State, 102 Ala. 76; In re Allison, 16 Am. St-. Rep.-224 and notes; Marengo County et al. v. Mathm, ,134 Ala. 275. • ,
    
    Tlie regular terms of the commissioners court are prescribed by law. — Code, §§ 955, 3977; ■ Special'terms .can only be held as prescribed by. §§ 956 and 3977 of the Code. Adjourned terms are simply continuations of the regular terms, and- cannot be had after, next regular term. In other words, the May- term, if lawfully held, could -not be adjourned beyond the regular June term. 7 Ala. 85; Hays Vi Ahlrichs, 115 Ala. 239. The acts of the court held at a .time and place not authorized by law are absolutely void — 20 Ala. 446; 42 Ala-. 404; 12 A. & E. Ency. Law, 29.6; LeirÁs v. Allred, 57 Ala. 630; 67. Ala. 163; Boynton v. Nelson, 46 Ala.. 501-; 84 Ala. 66; 1Ó2 Ala. 215; 63 Ala. 383. And a void judgment may be collaterally attacked. This is said to be “horn book law,” in 12 Amer. & Eng. Ency. Law 147-50, notes 2, 3; Lewis v: Allred, 57 Ala. 628; 56 Ala-. 279. '
    The commissioners court is a court of record. — Code of 1896, § 951. . .....
    Mallory & Mallory, -Canterbury & Gilder, W.- W. Lavender and J.- M. Miller, contra.
    
    The-court of-county commissioners of -Marengo county, had. authority - without the vote of the people to locate the new>.>cour-t. house within the original county -site.- Court of county commissioners has sole and full authority in the, -matter of determining the necessity for a new Court house- for a county, and in having the same erected and--in providing the means for the same, and that in these matters ■ they act in, at least, a quasi legislative capacity, and, their acts, within the bounds of their legal. authority and conforming- to- thel requirements of, the statute, cannot be questioned, reviewed or annulled by any court.-.. Code, 1896, § 1409; 'Hays v. Ahlrich, 115 Ala. 248 ; Commissioners v. Herne, 59 Ala. 37; Hill v. Bridges, 6 Por. 197; Moore v. Hanoooh, 11 Ala. 245; Parnell v. Commasr. sioners, 34 Ala. 278; Commissioners v.- Boioie,- 34 Ala.-461; Aslcew v. Hale, 54 Ala. 638. • . ■ •
    It appears from the bill and answer that the action of the court of county commissioners of Marengo county was had at a regular term of said court., and at an adjourned term thereof, and no question can be raised as to- the. regularity of the court. — Lewis v. Intendent, etc., 7 Ala. S5; Hays• et al. v. Ahlrichs, 115 Ala. 249.
    The county seat is not the lot on which county buildings are located, but it is the town in which such buildings are located. It is not the buildings- themselves, but the- town or municipality in which the buildings are located. It is the seat of government of the county, the town or municipality in which the county or other courts are held, and where; the county officers have their offices, and where the county business is transacted. — 7 Amer. & Eng. Ency. Law (2d ed.), 1012-13 and 1017, and citations; Wlmllon v. CircAtit Judge, 51 Mich. 503; Moffatt v. State, 40 Ind. 217; In re Coumty Seat, 4 Pa. Dist. Rep. 310-19; Doolittle v. Comity Court, 28 W. Ya. 158.
   DOWDELL, J.

The present appeal is prosecuted from the decree, of the chancellor dissolving- the temporary injunction theretofore granted in the case, and the rendition of this decree constitutes the only assignment of error on the record. The two principal questions, and indeed- the vital questions, involved in the controversy, and urged in argument by counsel, are, first, whether the court of county commissioners have the .power to remove or change the court house, from one lot to- another and different lot within the. limits of the territorial area designated by law and constituting the county seat, without, first having submitted the question to the vote of the people, under section 41 of the Constitution. Second, whether the orders of the court which were made in the case in reference to the removal of the court house, were made at a time and term when it had a right to exorcise the power, supposing the power to be in the court.

By an act of the general assembly approved February 8, 1871, it was provided,, among other things, “that the •court house of Marengo- county be, and the same is hereby, removed from Demopolis to Linden, in said county, and that the same be permanently located at Linden, in said county;” and it was also provided in said act for the removal of the records, and furniture belonging to the county offices within a specified time. By this act the town of Linden became the court house site, or the county seat of government for the county of Marengo. No particular lot upon which to erect the court house building and other public buildings for county purposes, was designated. This was left to Hie court of county commissioners, whose duty it was under the general statutes to erect such buildings, and the exercise of their powers in the location, of such buildings was only limited to the territorial boundary of the town of Linden, as it existed at the time of the passage of the act of removal. The same: general statutes which then existed, investing the court, of county commissioners with the power, and imposing upon that court the duty, of erecting a new court house and jail, remain the law today, unaffected by any constitutional provision, in so far as the power and duty of building such new court house and jail is concerned, whenever by them deemed necessary. — §§ 1405-1409 of Code of 1896.

There is a limitation put by the Constitution upon the poAvers of the commissioners’ court, in the matter of the levy of a special tax for such purposes (section 215 of the Constitution), and also, a limitation in the matter of the issuance of bonds. — § 222 of the Constitution. But as sliOAvn by the’ bill and the denials of the SAVorn ansAA'er, in neither of these respects has there been any violation by the court, of county commissioners of the < •onstitutional provisions.

‘his a general rule in all cases involving the location, erection, repairs, removal, or furnishing of county buildings, such as court houses, jails and public offices, the court of county commissioners exercise a discretion which can not be controlled by any judicial tribunal, in the.absence of fraud, corruption or unfair dealing.” — 7 Am. & Eng. Eney. Luav (2d edi), 996, and authorities there cited. Under our statutes, there can be no doubt of the proposition, that, the court of county commissioners has sole and exclusive power and authority, in the matter of determining the necessity for a new court house for the county and having the same erected, and that in these, matters they act in, at least,, a quasi legislative capacity, and their acts, Avhen free from fraud, corruption,: or unfair dealing/ 'cannot be controlled • or questioned’ by any other court. — Vide, §§ 1405-1409, Code, 1896; Hayes v. Ahlrick et al., 115 Ala. 239. See also'the following cases construing the court’s powers and discretion in niatters’ of public roads, and in which the principles declared seem applicable here": Commissioners v. Hearne, 59 Ala. 37; Hill v. Bridges, 6 Port. 197; Moore v. Hancock, 11 Ala. 245; Parnell v. Commissioners, 34 Ala. 278; Commissioners V. Bowie, 34 Ala. 461; Askew v. Hale, 54 Ala. 638.

Coming to the question 'first stated above/ as to the power'of the court of county commissioners-to: remove the court house from the present 'site or lot in the town of Linden- to another and different site or lot within the territorial limits of said town as they existed at the time of the permanent location of the court houses in the town of Linden by the act of February 8th, 1871, we think'it may be asserted, that no one would question the power and authority of the court of commissioners, in'the event of a change of the seat of government in a particular county, from one town,' municipality, oír district to am other in such county, under the provisions of section 41 of the Constitution, to' select the particular site or lot for the erection of the public buildings thereon, within tlie territorial limits of the town, municipality or district, to which the removal was made, and this without any submission of such selection toa vote’of the people. Section 41 of the Constitution reads as follows: ’’ “Nb court house'or county site shall be removed except by a majority vote of the qualified electors óf Said county voting at an election- held for such purpose, and when an election has been once held no other election- shall be held for such purpose until -the expiration of' four years,” etc. The terms court house sité and county site.(in their ordinary use' mean the same thing, and are falten and understood to signify the seat of government' of the county, and in this sense cannot be restricted and corn-fined to the particular lot, or the ground by 'measure1 meht, upon which the necessary public buildings1 áte erected. We :said on the former appeal in this case, Marengo County et al. v. Matkin et al., 134 Ala. 275, 32 So. Rep. 069: “It has been deciaíréd ás a. general principie that, twhen.a city or towrn is selected as .the county seat, the boundaries, of such ..city. or town, as1-they then exist, become-.the boundaries ..of .the county seat,’”, etc. The principle is. the same, whether it be. the county seat or site, or ¡the court house site, although the.latter be -a court house located in a town ,or city,, other than the county seat, as isi often done for the convenience of the people.

We judicially know that in a number of the counties of this State, besides the court house at the county seat, there are court houses for the holding of the circuit and chancery courts located in other towns or cites within the county. A knowledge of the existence of these conditions is sufficient to account for and explain the particularity of the. framers. of the Constitution in the language employed in sectioh 41, that' “nó court house or county site,” etc. The construction contended for by counsel for appellants, that “court house” site should be held to- mean the particular lot upon which the building is erected, is- too narrow7' and unsupported by sound reason, and if adopted, would likely lead to greater public detriment in possible cases, than mere inconvenience.

Our conclusion is, -and Ave so decide, that it Avas, and is, intended by section 41, that no court house shall be removed from the town or city, where located at the time of the adoption of the Constitution, -except as provided in said' section, and not, that a new court house may not be erected within .such. town or city on a lot other than that upon Avhich the old is located, whenever determined necessary by the court of county commissioners, Avithout first having submitted such question to a vote of the people.

Nothing appears from the record to the contrary, but that the orders of the court of commissioners relative to the building of the new court house w^ere properly made at an adjourned term of the court on the 9th day of July from, the regular May term of said court. The fact that the June term of the court, as prescribed by section 3978 of the Code, intervened between the regular May term, and the adjourned term of July 9th, did not interrupt the continuance of the regular May term to this later date. The June term provided for in sections 3977, 3978, while in one sense, is a regular term, and so denominated by the statute, still is limited by the statute-to the transaction of business relating solely to taxation, and is in no sense a regular term of the court for the transaction of business generally. Tt woul.1 not. for a moment be contended, if the orders in the present case had been made at such June term, that they would have been valid.

We find no error in the record, and the decree of the chancellor will he affirmed.  