The Birmingham age-herald., 1916-01-29
CITY HAS POWER ID BUILD ELECTRIC
 LINE ID WARRIOR
Cannot Be Done in COnjunc- tiOn With County and Cannot Be Leased
 to Others

According to the opinion of City At torney Ullman, the city of Birming- ham has the right to build an electric or steam railway from this munich pality to the Warrior river. MT. Ull- mans opinion, which goes clearly into the subject admits that the city can issue bonds for the construction of the railway but has not the authority to lease it, or to build it in conjunction with county or with a private concern. He says that civic owned railroad would be a public utility within the comprehension of the law.
 City Attorney Ullman's opinion fol- lows:
 Referring to the attached file in regard to the construction of the mu- nicipally owned railroad from the War rior river to the nearest point on the Birmin gham Railway, Light and Power company's system in Birmingham, which you have referred to me for in vestigation a to the legal phases of the same, to see if there are any ob- stacles in the way of the city and coun- ty building such line, and if so what the obstacles are and the best way of overcoming them, I beg to advise that l have examined the question and have the following report to make:
 Municipal corporations have the power to exercise only such rights as are specifically enumerated in the char ter or act of the legislature creating or conferring powers upon them and such incidental powers as are necessary and Indispensable to the exercise of the eX- press powers granted
 By section of the act of the legis- lature known as the omnibus bill (see acts of 1915, page 295), the city of Bir- mingham has the power to establish, purchase, build, erect, own, maintain and operate a public utility
 q am of the opinion that the power herein granted is broad enough to au- thorize the city to construct, operate, maintain, own and build railroad for the use of the city and its inhabitants from the Warrior river to the city linn its or any point within the city. The act provides in express terms that the powers granted shall include the right to establish, build and maintain such plants or parts thereof anywhere out side the city limits and to acquire by condemnation any property needed for any such purpose. By force of the budget bill passed by the last legisla- ture, appearing in the acts of 1915, pages 320-321. the expenditures of the city are limited to it's estimated in- come and the city is prohibited from expending or contracting in any one
  revenue collected and estimated in good faith to be due and payable during that year into the treasury of the city.
 By section of that act it is provided that expenditures not exceeding 900 in any one year for betterments of permanent nature or acquisitions of prop erty of a permanent nature, although not authorized by vote of the qualified voters of the city and bonds issued or other ob- ligations incurred which are authorized by the vote of the qualified voters of the city, in pursuance of the law, and the proceeds of the sale or pledge of such bonds or other obligations are expected from the prohibitions of the act and the proceeds of the sale or pledge of such bonds shall not be counted as a part of the revenue of the city within the pro- visions of the act. Therefore, the whole question is as to whether not the city has the power to issue bonds for the pur- pose of building a railroad or acquiring the necessary rights of way for that pur- pose. The power to issue bonds for mu- nicipal corporations is derived from an act of the legislature of 1915, appearing or page no of the acts of the legisla- ture, and section 1 of that act enumerates the purposes for which bonds may be is sued by vote of the people. Subdivision provides that bonds may be issued for the purchase of real estate necessary for any improvement authorized by law or for the site of any building or in- provement to be used for public purposes. Section 201s of the act provides that bends may be issued for the purpose of providing for the payment of any ob- 1igation of any municipal corporation, whether arising from administration or from the acquisition of any property for public use or the construction of any inn provement or otherwise. or whether said obligation shall have matured or not at the time of the said issue, and while the act does not mention railroads, I am of the opinion that such public utility is fairly within the intent and meaning of the subdivision last above quoted. sub ject always to the constitutional lnita- ton that the bonded indebtedness of the city shall not exceed 71a per cent of the assessed value of the real estate lying within the corporate limits.
 T find no authority however which would authorize the cny to construct such railroad in conjunction with the county, nor do I find any authority which would permit the city to lease the rail- road so constructed to any other corpora tion to be operated by it for profit or otherwise.