Board of Revenue of Jefferson County v. Birmingham Waterworks Co.
| Decision Date | 20 May 1909 |
| Citation | 160 Ala. 152,49 So. 683 |
| Parties | BOARD OF REVENUE OF JEFFERSON COUNTY v. BIRMINGHAM WATERWORKS CO. |
| Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; C. C. Nesmith, Judge.
Action by the Birmingham Waterworks Company against the Board of Revenue of Jefferson County. From a judgment for plaintiff defendant appeals. Reversed, and petition dismissed.
John H Miller and W. K. Terry, for appellant.
London & Fitts, for appellee.
Appeal from order awarding peremptory writ of mandamus requiring the board of revenue of Jefferson county to instruct the judge of probate thereof to certify to the State Auditor that relator Birmingham Waterworks Company, a corporation, had erroneously and through mistake paid to the judge of probate a license tax in the sum set down in the petition.
One of the two invariable tests by which the right to the writ of mandamus is determinable is whether the petitioner has any other adequate remedy to which he can resort to enforce his right. Moseley v. Collins, 133 Ala. 328, 32 So. 131. The act approved September 29, 1903 (Acts 1903, p. 278), now forming sections 2340 to 2344, inclusive, of the Code of 1907, obviously relates to taxes erroneously paid to tax collectors in consequence of assessments of property, and not to taxes otherwise demanded or paid to other officers. Such sections are without bearing in this instance.
By an act approved August 16, 1907 (Acts 1907, p. 639), noted as sections 2345 to 2347, inclusive, in Code of 1907, though not a part of it, because enacted subsequent to the adoption of that Code, additional provision was made for the recovery and refunding of money erroneously paid or collected for taxes whether paid under compulsion or protest or not. In the first section of the act, after stating what moneys are erroneously paid within that section of the act, it is expressly provided that "the same shall be recoverable by appropriate proceedings at law or in equity against the proper parties or their successors, with the usual rights of and upon appeal, and that such payment was not made under compulsion or protest shall be immaterial." (Italics supplied.)
Without entering on a general construction of the act of 1907, it will suffice to say that, if the alleged erroneous payment here in question is not within the provisions of that act and to provide for the recovery and refunding of money so erroneously paid it...
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