This action was brought by the appellants, resident taxpayers of the City of Birmingham, Alabama, to enjoin that city and certain of its officials (appellees here)
In March, 1962, the State of Alabama and Jefferson County entered into an agreement, and Jefferson County and the municipalities of Birmingham, Homewood, Mountain Brook and Vestavia Hills entered into another agreement, whereby the City of Birmingham agreed to pay $525,000 to Jefferson County. Jefferson County was to add this to the sums paid to it by the other municipalities, add a contribution of its own, and pay the aggregate sum to the State of Alabama, which would use it, together with matching federal funds, for the acquisition of rights of way and construction costs of the project. Provision was thus made for $3,750,000 of the total estimated cost of $11,700,000. This $3,750,000 was to be used to pay for the first of three phases of the proposed expressway.
By their complaint, the complainants sought a temporary and permanent injunction to prevent the proposed construction. The original complaint was amended four times and demurrers to it filed and re-filed. Respondents also filed an answer and amended answer. Ruling on the demurrers was reserved subject to a finding of the equity of the bill. The court heard the evidence ore tenus for six days; note of testimony was filed and the cause submitted for decree on July 12, 1962. On July 16, 1962, the trial court entered its decree overruling application for injunction pendente lite, and denying writ. From that decree this appeal was perfected.
There is but one real issue in this case; that is, whether or not the proposed expressway may be built with the proceeds of the funds raised pursuant to the above-quoted authorization. Stated more simply, the issue is whether or not the construction of a new facility was contemplated when the electorate approved a bond issue "for the purpose of improving highways in the City of Birmingham." It is undisputed that bond proceeds may be used only for the particular purpose authorized by the voters, and the use of the same for any other purpose constitutes an unlawful diversion of the funds. Court of County Revenues for Lawrence County v. Richardson, 252 Ala. 403, 41 So.2d 749; Southern Ry. Co. v. Jackson County, 189 Ala. 436, 66 So. 570.
It is appellants' contention that in order that there be an "improvement" there must presently exist something to improve, and that, therefore, the proceeds from bonds voted for the purpose of "improving" highways can be applied only to the betterment of highways established and existing when the bond issue was approved by the electorate.
This particular question has never been presented to this court, but it has been decided in other jurisdictions. Appellants rely largely upon Wolff Chemical Co. v. City of Philadelphia, 217 Pa. 215, 66 A. 344, decided in 1907. Although we think it can be distinguished from the instant case, we concede that it holds that a bond issue "for continuing the improvement of the boulevard from Broad street northeastward" did not include the spending of any money for the payment of damages to property owners for the taking of their
Appellees rely on Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65, decided in 1932. There, the voters in St. Louis approved bonds, the proceeds of which were to be used "For the acquisition of land and the construction of additions and extensions and equipment of public hospitals" (emphasis supplied). Meyering, a taxpayer, sought to enjoin the city from using some of the money to acquire land and build a new hospital. The city answered, demurrer to the answer was overruled, the taxpayer declined to plead further and appealed from the order dismissing his bill. The opinion was written by a commissioner who later became the famous Chief Justice Hyde of the Supreme Court of Missouri, and all the Justices concurred in the holding that the city was authorized to build separate new hospitals. The court said:
The court, Chief Justice Russell writing, ruled against the taxpayers and held that the county "had the right to use the bonds for paving the relocated portion of the Route No. 49," (the same as the Dixie Highway).
In Brimer v. Municipality of Jefferson City, 187 Tenn. 467, 216 S.W.2d 1 (1948), taxpayers sought to enjoin the city from participating with Jefferson County, the State Highway Department and the Federal Government in the costs of acquiring rights of way through the city for the relocation of the highway running from Knoxville to Morristown. The charter of Jefferson City gave the city full authority over streets to "grade, pave, or otherwise improve," streets "or have the same done." The taxpayer charged that relocation of the highway "is not for the city" and that the city should not be burdened with this expense. The court said:
This court has also approved similar contracts, King v. City of Mobile, 273 Ala. 109, 134 So.2d 746.
We come now to consider some of the evidence before the trial court. The highway or expressway here involved is referred to as the Red Mountain Expressway, which would be an additional highway to U. S. 280 and U. S. 31 to help alleviate the congested traffic in south Birmingham over Red Mountain. This traffic was described by Commissioner Connor, Commissioner of Public Safety, as the worst traffic situation in Birmingham, and Commissioner Waggoner, who administered the Department of Public Improvements, including streets, testified that it was the number one traffic need in the city. Commissioner Waggoner also testified that the northern end of the expressway would be along the present alignment of 26th Street, that the construction of the access roads included in the Expressway Program would constitute an improvement to the streets and highways of the city and that some streets will be improved by the elimination of deadends, bad curves and grades.
These commissioners were called by appellants, and their expert witness, Engineer Hendon, who with others had prepared the Red Mountain Expressway Preliminary Engineering Analysis for the state, Jefferson County, Birmingham, Homewood, Mountain Brook and Vestavia Hills, and had formerly been County Engineer for Jefferson County, testified that efforts had been made since the middle 1930's to get a road across the mountain. He testified that the Expressway "is the most needed highway facility in the metropolitan area; second, it will in our judgment improve all the major
Appellees' expert, Engineer Schmied, who also participated in the study and preparation of the analysis, testified that the Expressway is designed in conjunction with the existing streets in Birmingham, that other existing streets could then function at desirable levels and carry excess traffic; that it formed a relief to existing streets; that the traffic level is expected to double by 1980; that access roads will connect several deadend streets and those roads become a permanent part of the street system, and these access roads improve all those deadend streets by connecting them where no useable streets exist now. He said, "We are building a new facility and we are improving existing streets." He testified in particular that U. S. 31 and U. S. 280 would be improved by the building of the Expressway and that approximately 8,000 linear feet of existing streets and alleys were included in the rights of way limits of the project; and that in his opinion "it definitely would be an improvement," both to the streets and from the improvement to the movement of traffic. We quote one statement of the witness:
There was no testimony that the streets and highways in Birmingham would not be improved by the construction of the Expressway, and both lay and expert witnesses of both parties testified that the streets of the city would be improved by the construction of the Expressway.
The philosophy of this court on questions like the one here presented was stated by Dowdell, C. J., in Thomason v. Court of County Commissioners, 184 Ala. 28, 63 So. 87. There, the voters of Marshall County were to decide whether the county governing body "shall issue bonds in behalf of the county for the purpose of constructing, improving, and repairing the public roads of the county, * * *." The taxpayer sought an injunction because the notice of the election, as well as the order calling it, contained provisions not authorized by law, in that the words "improving and repairing" were used when the statute only used the word "constructing." The court said:
In view of the cited authorities, we are constrained to hold that proceeds of the bond issues for the purpose of improving highways and streets in Birmingham, contemplates not only existing streets, but new streets and relocation of streets to provide for the future needs and growth of the city and any new street or highway built in the city which helps the flow of traffic and reduces traffic on congested streets improves the streets and highways of the city. We think the emphasis ought to be, not on the streets or highways themselves, but the usefulness to the inhabitants of the municipality, and the public. (We are not to be understood as even intimating that the proceeds of a bond issue for the improvement of a designated street or streets could be used for another street or other streets generally.)
In passing, we note that the record discloses that two other street projects, the 19th Street Underpass and a portion of the Georgia Road, were constructed out of the bond money, and in each instance, they were built on an entirely new right of way where no street or right of way ever existed. It is only fair to say that the record does not show that these projects were contested, although it is common knowledge that each made a tremendous improvement in Birmingham traffic.
We advert to one more principle. Each case for injunctive relief must be considered in the light of the rule that an injunction, whether permanent or temporary, cannot, as a general rule, be sought as a matter of right, but the power to grant or refuse it rests in the sound discretion of the court under the circumstances and facts of the particular case. Corte v. State, 259 Ala. 536, 67 So.2d 782; State ex rel. Gallion v. Simonetti, Inc., 270 Ala. 66, 116 So.2d 572.
The trial court did not abuse his discretion in denying the application for a temporary injunction.
In view of the application of this last stated principle, the other argued assignments of error need not be discussed.
The decree is due to be affirmed.
SIMPSON, GOODWYN, MERRILL, COLEMAN and HARWOOD, JJ., concur.
LIVINGSTON, C. J., dissents.
LIVINGSTON, Chief Justice (dissenting).
It is clear to me that the construction of the proposed expressway would unquestionably be the construction of a "new" facility as opposed to the "improvement" of an old one. The testimony and exhibits make it abundantly clear that the new highway would utilize existing facilities only incidentally, and any "improvement" to the existing streets would be strictly secondary in nature.
In Wolff Chemical Co. v. City of Philadelphia, 217 Pa. 215, 66 A. 344, the Supreme Court of Pennsylvania was confronted with an issue strikingly similar to the one presently before us. In that case, a municipal bond issue was approved by the voters of the city "for continuing the improvement of the boulevard from Broad street northeastward." The city authorities then attempted to use the proceeds of the bonds to "open" the boulevard. In holding that
The Pennsylvania Court went on to say that it was problematic whether or not a majority of the voters would have voted the funds to open the boulevard, saying:
In the case of Harding v. Board of Supervisors of Osceola County, 213 Iowa 560, 237 N.W. 625, bonds were approved "for the purpose of providing the funds for draining, grading and hard surfacing the primary roads of the county." There were existing at the time of the approval of the bond issue, certain roads which bore the designation "primary roads." An attempt was made after the bond issue was approved to use the money provided for the paving of another road; presumably it would then have become a "primary road." In preventing the bond funds from being used for such a purpose, the Iowa court stated:
Another case in point is that of Marks v. Richmond County, 165 Ga. 316, 140 S.E. 880. In that case, a resolution was passed by the county board of commissioners specifying work that had been done on the highways of the county and calling for an election to approve a bond issue for "[p]aving with hard surfacing and improving the
The cases of Thompson v. Town of Frostproof, 89 Fla. 92, 103 So. 118; City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97; Thompson v. Pierce County, 113 Wn. 237, 193 P. 706; and State ex rel. Ramsey County v. Babcock, 186 Minn. 132, 242 N.W. 474, are of similar import.
Counsel for the appellees has ably attempted to distinguish all of the above-cited cases from the case at bar. Admittedly, some of them do differ in some respects from the present case. I am convinced, however, that the rationale of those cases is logical and sound and should be followed. Appellees rely strongly on the case of Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65. There, a proposition was submitted to the voters of the City of St. Louis proposing certain bonds, the proceeds of which were to be used "[f]or the acquisition of land and the construction of additions and extensions and equipment of public hospitals * * *." Action was brought to prevent the city from using the proceeds of the bonds thus authorized for the construction of a new hospital. The Supreme Court of Missouri allowed the bond funds to be so used. One unique factor was present in that case, however. It appears from the report of the case that while it did not appear on the ballot that the funds would be used in part for a new hospital, the electorate was apprised of this fact before the election. Thus, it might well be said that the voters of St. Louis did approve of the use of the bond funds for construction of an entirely new facility. The same cannot be said of the instant case, for while the Red Mountain Expressway had been under consideration for some time, there is no evidence that the general public understood that it would be included in the bond issue here under consideration.
Appellees contend that the existing streets of Birmingham would be improved by the proposed expressway because it would reduce traffic on them and hence lessen wear. While this may be technically true, it is clear to me that this is not an "improvement" within the intended meaning of the word as used in the proposal here being construed. It appears to me that when the average voter read the word "improvement," he thought of a physical addition to or modification of a street, such as paving, grading, etc., not a mere lessening of use.
The rule of law argued by appellees that the appellate court will not reverse the judgment of a municipal body having discretionary powers unless the action of such body is fraudulent or corrupt, has no application in this case. In my judgment, the city had no discretion to use the bond funds for an unauthorized purpose.
It is my conclusion that the decree of the trial court was laid in error and should be reversed. I, therefore, respectfully dissent.