Board of Revenue of Montgomery County v. Southern Bell Telephone & Telegraph Co.
| Citation | 200 Ala. 532,76 So. 858 |
| Decision Date | 07 June 1917 |
| Docket Number | 3 Div. 283 |
| Parties | BOARD OF REVENUE OF MONTGOMERY COUNTY v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. |
| Court | Supreme Court of Alabama |
Rehearing Denied Nov. 22, 1917
Appeal from City Court of Montgomery; Gaston Gunter, Judge.
Application by the Southern Bell Telephone & Telegraph Company for mandamus to the board of revenue of Montgomery county, to compel said board to draw its warrant on the county treasurer in a certain sum upon the certificate of the judge of probate, reciting that the appellee had made erroneous payments of franchise taxes for certain tax years named therein. From a decree granting the writ, respondent appeals. Affirmed.
John R Tyson and A.H. Arrington, both of Montgomery, for appellant.
Steiner Crum & Weil, of Montgomery, for appellee.
The trial court did not err in declining to quash the preliminary writ to show cause. It is unlike the one considered in the case of Longshore v. State ex rel. Turner, 137 Ala 636, 34 So. 684. There the writ commanded the respondents to appear and show cause why they have neglected and refused to discharge the duties enjoined upon them under the ordinance of the constitutional convention. It did not command them to show cause against the issuance of a peremptory writ coercing the action desired, but the command was that they show cause not why they should be compelled to act, but why they have not acted as if the purpose and end of the proceeding was to punish them for past pretermission of duty, and not force them to discharge of duty in the future. Here the writ commands that cause be shown why they may not be compelled to act, and not why they have not acted.
It has been repeatedly held that mandamus to the auditor or board of revenue was the proper remedy to enforce the issuance of the warrant after the issuance of the certificate by the probate judge as directed by the statute, and that where the probate judge had issued such a certificate as the statute directed, it was not subject to audit by the board, but it was its duty to issue the warrant. Bigbee Co. v. Smith, 186 Ala. 552, 65 So. 37; Smith v. Tenn. Coal Co., 192 Ala. 129, 68 So. 865; Lovelady et al. v. Loveman, 191 Ala. 96, 68 So. 48; Allgood v. Sloss Co., 196 Ala. 500, 71 So. 724; Turner v. Anniston Co., 75 So. 465.
It is also well settled that the respondent could not invoke the statute of limitations. It was suggested in the opinion in the Allgood Case, supra, that laches was available against mandamus, notwithstanding there was no statute of limitations against the enforcement of these claims. We do not think, however, that there was any laches in seeking the mandamus in this case, as it was filed a very short time after the issuance of the certificate. If the petitioner was tardy in procuring the certificate so as to render it guilty of laches, this was a question that addressed itself to the probate judge and not these respondents.
We do not think that the court held or intended to hold in the ...
To continue reading
Request your trial
-
Appeal of Martin
...whether a city or county may challenge a tax statute on constitutional grounds answer in the negative. Board of Review v. Southern Bell Tel. & Tel. Co., 200 Ala. 532, 76 So. 858 (1917); City of Sebring v. Wolf, 105 Fla. 516, 141 So. 736 (1932); C. Hewitt and Sons Co. v. Keller, supra; Balti......
-
Baltimore County v. Churchill, Ltd.
...63, 127 N.W.2d 809, 813 (1964); Sweeney v. State, 251 N.Y. 417, 419-420, 167 N.E. 519, 520 (1929); Board of Revenue v. Southern Bell Tel. & Tel. Co., 200 Ala. 532, 533, 76 So. 858, 859 (1917). However, whether the subdivisions have standing to complain of a violation of the constitution of ......
-
Board of Education of Jefferson County v. State, 6 Div. 750.
... ... So. 558; Board of Rev. of Montgomery County v. Southern ... Bell Tel. & Tel. Co., 200 ... ...
-
Helms v. Alabama Pension Commission
...so found. Lovelady v. Loveman, Joseph & Loeb, 191 Ala. 96, 68 So. 48; Board of Revenue of Montgomery v. So. Bell Tel. & Tel. Co., 200 Ala. 532, 76 So. 858. And since the act of which provides that the county commissioners must be satisfied with the proof, this court seemed to recognize the ......