
    Commissioners Court of Perry County et al. v. Medical Society of Perry County et al.
    
    
      Bill in Equity for an Injunction.
    
    1. Right of medical society to maintain HU against commissioners court and others, to enjoin payment of fees for vaccination. The Medical Society of the County of Perry, alleged to be “a corporation organized under the charter of the Medical Association of the State of Alabama,” and certain named persons, “members of said society and practicing physicians of Perry county,” as individuals, can not maintain a bill in equity against the commissioners court of Perry county, the judge of probate and treasurer, respectively, of said county, and a certain named person whom the commissioners court had employed to vaccinate the citizens of Perry county, for the purpose of restraining the defendants from collecting money out of and through the commissioners court for vaccinating persons, under the contract made and entered into between them, and from issuing a warrant for the payment of such sums and from allowing said amount, or paying said sum out of the treasury of said county.
    2. Same; right of individual complainants. — Nor can the individual complainants in such a bill, considered apart from the • Medical Society, maintain the bill and be entitled to the relief sought, where it is not alleged and shown that they were citizens and tax-payers of said county, or that they were property owners and tax-payers therein.
    3. Same. — The medical society of a county has no such interest •in the disposition the lawfully constituted authorities of ,a county may make of any funds, and can not, therefore, be damaged or in any wise prejudiced by any appropriation of 17 such funds, authorized or not, which the commisisoners court of said county may determine upon; and, therefore, such medical society can not maintain a bill to enjoin the county officers from the disbursement of county funds; and especially is this true where it is not alleged or shown that the payment proposed will, in any way, injure the said society; or that said society is not interested in the money proposed to be paid which will be lost by such payment, or would in any respect, be affected in its property or rights by such payment.
    Appeal from the Chancery Court of Perry.
    Heard before the Hon. Titos. H. Smith.
    The bill in this case was filed by the 'appellees against the appellants. The purpose of the bill and the facts of th case are sufficiently stalld in the opinion.
    The defendants demurred to the bill upon the following grounds: “1. The stating part of said bill of complaint is not divided into section's and numbered eon'seotutively 1, 2, 3, etc., as required bv the rules of chancery practice. 2. For that it does not appear by said bill that the complainants or either of 'them have any right to bring said suit, for that said bill does not allege that said Medical Society of Perry County is a corporation organized under the laws of Alabama, and that the other complainants have an interest in the subject-matters of 'said bill of complaint. 3. For that it does not appear, by said bill that the said complainants, J. B. Hatchett, O. L. Shivers and F. B. ‘Thompson, have'been injured by itbe subject-matter •of said bill of complaint. 4. For tliat it appears by said bill that the said Commissioners Court of Perry County had jurisdiction of the subject-matter of said bill, and that the payment of the money for vaccinating the people of Perry county, under the facts stated in the bill, ivas within the discretion of the said Commissioners Court of Perry county. 5. For that it appears by the said bill of complaint that the said Hendon was acting under said employment with said Commissioners Court and was protecting thereby the lives and health of the citizens of Perry -county. 6. F-or that it appears by the said bill of 'complaint that the said Hendon had performed work and labor for the county, under and by virtue of said contract of employment bv and between said Hendon and said Commissioners Court, and said bill of complaint does not allege that said work was of no value and does not allege, how much work had been done by said Hendon, under said employment, at the time of the filing of said bill of complaint. 7. For that said complainant does not allege that the said Hendon had not performed any work under said contract of employment. 8. • For that said bill does not allege that the said Hendon had not vaccinnated any of the people of Pferry county at the time stated in said bill; when it 'was necessary to vacinnate 'the people of Perry county living near the persons infected with said smallpox. 9. For that ‘ the bill' of complaint is inconsistent and contradictory in that in one part of said bill it alleges, in substance, that the appointment of said William T. Hendon to vaccinate the peo-" pie of Perry county, by the Commissioners Cotirt' Of Perry count}’, crippled and injured the 'said complainant, the Medical Society of Perry County, in the performance of its duties, and in other parts of said'bill states that said appointment of said Hendon by said court was illegal- and void. 10. For that the said J. B. Shivers, as judge of probate of said county, had no such interest in the matter of litigation in this suit as will permit him to be a party thereto. 11. Because the Commissioners Court of Perry County can not be made a party defendant to this suit. 12. Because no community of interest is shown between said complainant, the Medical Society, and the other complainants.”
    From a final decree overruling the demurrer and granting the relief prayed for, the defendants appeal, and assign the rendition of -said decree as error.
    W. T. Hendon and Lomax, Chum & Weil, for appellants.
    The complainants in this case had no standing in the chancery court, and were not entitled to the relief prayed for.
    Under the widest 'construction of the power conferred upon the Medical - Society and the Board of Health, it cannot be contended that it is a part of the ■official functions or duties of either body to “sue for the correction or prevention of public abuses, com: mitted or threatened, by other officers or individuals,” and such is [the dear, manifest and only purpose of the bill in this case. — Hays v. Ahlrichs, 115 Ala. 239. There is no averment that either of the complainants is a property holder or tax payer, and, without such averment, they cannot be bear'd to invoke the aid of equity for the purpose sought in their bill. The detained. — Railroad Go. v. Dunn. 51 Ala. 128; McGord v. Pike, 2 Am. St, Rep. 85, and authorities cited in note.
    Again, there is no sufficient averment in the bill that the Medical Society of Periy 'County is a corporation nor that the. Board of Health is a corporation, and the sworn answer denies the corporate existence of both these bodies, and under the authority of Echloss & Kahn v. Montgomery Trade Go., 87 Ala. 411, this required proof at least of the incorporations of both concerns, and there; being no proof of either, they must fail in their suit. But, pretermitting this matter for the present, the in sufficiency of the averments of the bill in this regard, was squarely raised by the demurrers, and such .demurrers should have been sustained, and, if sustained, such action was fatal to the bill in its present shape. Schloss & Kahn v. Montgomery, supraj Ex parte Gollins, 49 Ala. 69; Reid v. McLeod, 20 Ala. 576; Moore v. Burns, 60 Ala. 269.
    The people afflicted with the disease, and those liable to become infected, were poor and indigent, and, unless taken care of by the county, would have been unable to secure the. necessary assistance, medicine and attention. These facts being true, it is submitted, that they furnish a complete answer to the bill of complaint, and demonstrate that the complainants had no right to injunctive relief. It is, at best, but an effort on the part of a quasi public body, charged by statute with certain specific duties and upon which the power of an executive body lias never been conferred under the statute, seeking by injupction to restrain tlie action of the legally constituted Court of County Commissioners in attempting to perform a contract made by said court in the exercise of its public functions for the care of the poor and indigent people of the county and in paying out money of the, county, over which the said court has exclusive control, upon a claim for work and labor actually done and which is just, equitable and past due, because the making of said contract and the payment of said money had not been assented to beforehand by the parties complainant, whose assent thereto was neither authorized nor required by law. Surely under such a state of facts, there can be no office for the writ of injunction, and the decree of the chancellor making said injunction perpetual should be reversed, and a decree here rendered dissolving the injunction and dismissing the bill. — Brasher v. Miller, 114 Ala. 485; Hays v. Ahlrichs, 115 Ala. 239; City of Selma v. Mullens, 46 Ala. 411; Benton v. Taylor, 46 Ala. 388; Henry v. Cohen, 66 Ala. 382; Grayson v. Latham, 84 Ala. 546; Somerville v. Wood, 115 Ala. 534; Savage v. Matthews, 98 Ala. 535; Code of Alabama, 1896, §§ 3 and 5; Code of Alabama, §§ 2431, 2432; 3 Brick. Dig., 352, § 303, and authorities there cited.
    J. H. Stewart and Francis L. Pettus, contra.
    
    As to the appointment of officers and servants to carry out the provisions of chapter 58 of Code of Alabama the reading of section 2432 is in itself sufficient argument. The law provides this Medical Board shall have the exclusive right of appointment. This statute necessarily prohibits the commissioners court, with which this board must act in the enforcement of these laws, from making such 'appointments. Resident tax-payers have the right to invoke the interposition of a court of equity to prevent the illegal creation of a debt which they in common with the other tax-pavers may be compelled to pay. An injunction is the proper remedy, and tax-payers need not allege any special damage. — 10 Am. & Eng. Ency. of Law, 962, 963; N. O. & M. R. R. Go. v. Dunn, 51 Ala. 131. These author!ties hold that- Shivers, Hatchett and, Thompson may, by bill, enjoin the illegal creation of a debt by the commissioners court or payment of an illegal debt by said court. — Hays v. Aldrichs, 115 Ala. 239.
    When a person, without the direction or assent of the, proper authorities .of the, county, voluntarily performs servicies for the comity, he has no legal demand against.the county for compensation therefor. — 7 Am. & Eng. Ency. of Law, 947. Parties dealing with counties must take notice of the limit which the people of .'their, discretion have prescribed for. the county. In debtcdness and no plea of ignorance or hardship can be allowed to .prevail. — 7 Am. & Eng. Ency. of Law (lst.ed.), 931. The phrase, -municipal corporation, is used in two distinct senses. in our State Constitution. In. its more general sense it may be made to include both towns and counties and 'other public corporations created by government for political purposes.; — Dunn v. Commissioners, 85 Ala. 144.
    . The commissioners court is a court of record of limited statutory jurisdiction intrusted to the county. Com. Court v. Moore, 53 Ala. 25.
    If tlie court- allows a claim not properly and legally chargeable to the county, or whi-clx it was not authorized to allow, it exceeds the .powers with which it is intrusted under tlie act of incorporation, and its acts are 'ultra vires and void. — Com. v. Moore, 53 Ala. 25.'
    . The commissioners court in auditing and allowing claims against the county perforins an executive and not a judicial act. — Ih. 53 Ala. 25.
    .The commissioners court was prohibited from any contract with Dr. Hendon for the performance of .the services described in the bill; and the making of such contracts was and is given exclusively to the county board of health. The court, therefore, can only pay such persons as were engaged by the board of health. Any other contract made by any other person or board is invalid and void. — Code of 1896, § 2433.
   McCLELLAN, C. J.

This bill ivas filed and prosecuted to final decree in their favor by The Medical Society of Perry County,-O. L. Shivers, J. B. Hatchett and E. B. Thompson. The capacities in which these parties sue appear from the opening- statement of the bill, which is as follows: “Humbly -complaining showeth unto your Honor, your orators, The Medical Society -of tlie County of Perry — a -corporation organized under the charter of the Medical Association of the State of Alabama — that it is and constitutes a .component part of said Medical Association of the State of Alabama, also O. L. Shivers, J. B. Hatchett and E. B. Thompson, who -are practicing physicians of said county and members of said Medical Society and constitute -the Board of Health of said -county, who sue as individuals in this proceeding.” The respondents to the hill are itlie Commissioners Court of Perry county, J. B. Shivers and W. W. Crawford, judge of probate and treasurer, respectively, of said county, and William Hendon, Jr. The hill -proceeds on the theory that the medical society of the county liad the exclusive right and power to appoint or employ persons to vaccinate the people and fumigate the houses, etc., etc., in prevention of the spread and stamping out the contagion of smallpox, which had broken out in one section of the coiinty, and’ that the commissioners court had no such power or authority; and avers that notwithstanding such want of power in said court that body bad employed William Hendon, Jr., to perform that service at' a salary or wage of fine hundred dollars per month, and that said Hendon ivas proceeding to perform his part of the contract, etc., etc. The prayer of the bill is as follows: “That said William Hendon he enjoined from performing said contract, * * * that said J. B. Shivers, as judge of probate and said commissioners’ court, and said W. W. Crawford, as treasurer of said county, he each enjoined by -writ of injunction, * * * from issuing, allowing said claim to said Hendon for such illegal services, from issuing any warrant on the county treasurer .for the -amount of said services and from paying said warrant or claim out of the funds in the hands of said county treasurer belonging to the county of Perry, and that said Hendon, be restrained from collecting said claim for his services .performed under said illegal contract out of the funds belonging to Perry county; and that at the final hearing that each said parties be perpetually restrained by the decree of this court from paying said claim or collecting the same; and’ that complainant may have such other, further and different relief as may consist in equity and good conscience and to your Honor may seem meet and just in the premises.” A preliminary injunction was issued on the. filing of the bill. The bill was demurred to on many grounds, all the ’ respondents answered, the evidence was taken and the cause was submitted on bill, demurrers, answers and testimony for final decree. The chancellor overruled the 'demurrer, granted the final relief specially prayed and decreed “that the injunction issued in this cause to restrain the respondents * * * from collecting money out of and through the Commissioners Court for vaccinating persons under a contract made and entered between them, and from issuing a warrant for the payment of such sum, 'and from allowing said amount and from praying said sum but of the treasury of said county, be made perpetual.” It was averred in the answers and proved on the hearing that Hendon completed the performance of his contract on the day the bill was filed; so that no case was made for an injunction perpetually (restraining him from further services under the contract, and no such relief was granted, the preliminary injunction ’going only to prevent payment to- him for services rendered under the contract out of the county treasury, and the final decree only perpetuating the preliminary injunction. It is, therefore, manifest that the case involves only the question whether the Medical Society of Perry County and O. L. Shivers, J. B. Hatchett,and E. B. Thompson “members of said society and practicing physiqians of Perry county” as individuals have any standing in a court of equity to restrain tlie commissioners court, tlie probate judge and tlie treasurer of Perry county, or any of them from paying out moneys belonging to tlie county under any circumstances whatever. AVe are clear to the conclusion that these complainants have no such standing or- right, and that on the final hearing the relief prayed should have been denied and the hill should have been dismissed wholly regardless of the validity vcl non óf the contract, between the commissioners'’ court and Hendon. It is too plain for argument that the Medical Society of Perry 'County — even assuming it to be a corporation with capacity to sue and to he vested with the statutory powers and duties in respect of public health, questions none of which we decide here — 'lias as such no interest whatever in the dispositions the -constituted county authorities may make of county funds, and cannot be daiw.g d or in anywise prejudiced by any appropriation of such funds, authorized -or hot, which the commissioners court may determine upon. Whatever may he the powers in other respects of the medical society of a county under the statute, it is clear beyond cavil that they have no power in their corporate, capacity, if they áre corporations, “to sue for the correction or prevention of public abuses committed or threatened by” county officers in the disbursement of county funds. Hays et al. v. Ahlrichs et al., 115 Ala. 239. The bill makes no attempt to show that this medical society will he in any way injured by this proposed payment to Hendon. It does -aver that the commissioners court by making the contract with Hendon “has crippled and injured this hoard of health in the performance of its duties under the laws of this State.” But the bill does not seek 'to annul the contract and no such relief is granted. On the answer and proof the contract had been fully executed, and however much the. making of it may have crippled and injured the board of health it is impossible to conceive how relief by injunction could be 'had. You cannot enjoin the making of a contract which has been already made, and yon cannot restrain the performance of a contract after it lias been fully performed. . And, moreover, the conclusion of this complainant that it has been “crippled and injured in the performance of its duties under the laws of this State” by the action of the commissioners court in making this contract ivould be entirely insufficient as pleading to show any crippling or injury. The facts must be stated. It is nowhere alleged nor in any way Shown that the payment proposed to be made to Hendon will even ci'ipple or injure this complainant, and it is in no way shown nor attempted to be shown that the medical society lias any interest in the money to be paid Hendon -which would he lost by such payment, or any interest in the question of such payment, or would he in any respect affected in its property or lights by such payment. The society is without interest in the case made at the hearing, and should not have been awarded relief.

This is sufficient to dispose of the case, even -though the individual complainants were entitled to prosecute this bill, on the principle that all the complainants must recover or none can. But the individual complainants, considered apart from the medical society, have no title to the relief sought and'granted. They, too, so far as the hill shows, are without interest in the premises. It is not alleged that they are citizens and tax payers of Perry county, nor that they are property owners and taxpayers therein. They cannot he injured by illegal uses of the county’s money and have no equity to restrain such uses.

The decree below is reversed and a decree will he here rendered denying relief and dismissing the bill.

Reversed and rendered.  