Mayor of Birmingham v. Rumsey & Co.

STONE, J. In the court below there was a general exception to the three charges, numbered 1, 2, and 4. Under a uniform rule, this exception can not avail, unless each of the charges is tainted with error. We are not prepared to say there is error in either of them. The first is clearly free from error. It asserts, that the corporate authorities of the city of Birmingham had power as such to purchase á fire-engine, hose-carriages and attachments, and thereby fasten a legal charge or liability on the city. It is contended for appellant, that, at the time this contract was entered into, the corporate authorities were without power in the premises. Birmingham was incorporated as a city, having apparently large dimensions, by act approved December 19,1871. Pamph. Acts, 229. That statute conferred the power “to make all by-laws and ordinances, of whatever kind, and upon whatever subject to them may seem right and proper for the good government of said city.” A second statute, approved February 26, 1872 (Pamph. Acts, 233), after empowering the city government to establish gas-works and water-works for the city, or, by contract, to have the city supplied with gas and water, contains this general clause : “and to do every matter and thing which'they may deem necessary for the good order and welfare of said city.” Grood government, and good order and welfare of a city, imply much more than mere preservation of social order. Sanitary regulations, 356 and appliances for extinguishing fires, to an extent reasonably commensurate with the city’s wants, to be judged of by the corporate authorities, are certainly within the purview of good city government. We do not wish to be understood as affirming that any specific grant of power is necessary to the performance of this very necessary police function. . We hold it is inherent in every city government, as one of its incidental powers, unless taken away by statute. — 1 Dillon, Mun. Corp. § 94; Robinson v. City of St. Louis, 28 Mo. 488. 3. It .is also assigned as error, and here urged as ground of reversal, that the Circuit Court, after rendering judgment against the city, ordered execution to issue for its collection. We do not hesitate to declare, 'that city property, owned or used by the corporation for public purposes, such as public buildings, public markets, hospitals, cemeteries, engine-houses, fire-engines and their apparatus, and other property, real or personal, of kindred utility, can not be taken in execution for debts of the city. But, if the city owns private property, not useful or used for corporate purposes, such property may be seized and sold under final process, precisely as similar property of individuals is seized and sold. 2 Dillon, Mun. Corp. § 446. If there be none, or an insufficient amount of such property to satisfy the debts of the corporation in judgment, then the creditor’s coercive remedy is mandamus, to compel a levy, assessment, and collection of a tax, to pay the judgment. — 2 Dillon, Mun Corp. § 685 ; Herman on Executions, § 364. The Circuit Court did not err, in ordering execution to issue on the judgment rendered in this case. Should the process be abused by a levy on property of- the corporation used for public purposes, the law affords the city ample means for arresting such unauthorized use of the execution. The judgment is affirmed.