Brown v. Gay-Padgett Hardware Co.

• Decision Date: 23 April 1914
• Docket Number: 726
• Citation: 186 Ala. 561,65 So. 333
• Parties: BROWN, County Treasurer, v. GAY-PADGETT HARDWARE CO.
• Court: Alabama Supreme Court

65 So. 333

186 Ala. 561

BROWN, County Treasurer, v. GAY-PADGETT HARDWARE CO.

No. 726

Supreme Court of Alabama

April 23, 1914

Rehearing Denied June 4, 1914

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Mandamus by the Gay-Padgett Hardware Company against Dallas Brown, as County Treasurer of Jackson County, to compel the payment of warrants. From a judgment granting relief, defendant appeals. Reversed and remanded.

John F Proctor, of Scottsboro, for appellant.

Bouldin & Wimberly, of Scottsboro, for appellee.

MAYFIELD J.

Appellee applied to the circuit court for a writ of mandamus, to be directed to appellant, as county treasurer for Jackson county, commanding and requiring him to pay certain warrants issued by the probate judge of Jackson county in pursuance of an order of the commissioners' court of said county. These warrants were issued to various holders for various claims against the county. One claim was for road tools supplies, and materials, furnished pursuant to a prior order of the court setting apart $300 to pay for such tools and supplies so furnished. One of the claims was for the salary of the keeper of the county poorhouse, another was for fees or compensation due the sheriff for obtaining from the internal revenue collector the names of persons to whom had been issued federal licenses to sell liquors, and still another was for a book or filing case furnished to the office of the probate judge of said county.

It is averred that all of these claims have been duly allowed by the commissioners' court, and that the warrants were issued, in pursuance of such allowance, upon the county treasurer, commanding him to pay the amount named in each to the holder thereof. It is also shown that all of said claims and warrants have been duly assigned and transferred to the petitioner, and by him severally presented to the county treasurer for payment, and that payment thereof was refused. It will be noticed that some of these claims or demands allowed, and for which warrants were issued, were claims against the general fund of the county, and that some were claims or demands against a special fund set aside for that purpose. The petition for mandamus alleges that payment of each was refused upon the sole ground that:

"They were debts sought to be created or sought to be incurred against the county, and at the time they were so created or incurred the county was indebted in such a sum that it was not and is not now empowered to incur or contract any indebtedness whatever, because the prior indebtedness of said county exhausted the debt limit fixed by section 224 of the Constitution of Alabama."

It is not necessary or proper for us to now pass upon this question, for the reason that since the passage of the statute (section 5938 of the Code) providing summary remedies against county treasurers, it has been uniformly held by this court that mandamus will not lie to compel a county treasurer to pay county warrants which are presented to him, even where there is money in the treasury subject of their payment. This question was first decided squarely in the case of Arrington v. Van Houton, 44 Ala. 284. In that case speaking of registered claims, it is said:

"These claims are each required to be presented to the county treasurer, and registered and numbered as prescribed by law. This is required of all claims which are allowed and authorized to be paid by the county treasurer. Rev.Code,§ 926, cls. 2, 3. And after they are so presented, registered and numbered, they become and are allowed claims against the county treasurer, and when there are funds in his hands, out of which they are authorized to be paid, he becomes bound to pay them, as required by law. If he fails to do this, upon demand, he may be sued at law for the same, by notice and motion against him and his securities, and judgment obtained against them in the name of the party to whom the claim is payable, his legal representatives, or assigns, for the amount of the claim. Rev.Code, §§ 930, 4343, 4222, 4221. This affords a sufficient remedy at law, without the necessity for resort to the extraordinary remedy of mandamus. When this is the case, a mandamus will be denied, as there is another specific and sufficient remedy provided by law. Tarver v. Commissioners' Court of Tallapoosa County, 17 Ala. 527; Ex parte Robbins, 29 Ala. 71; Shep.Dig. p. 696."

In the case of Speed v. Cocke, 57 Ala. 209, the same doctrine and practice was announced. In that case it was said:

"If, as the petition avers, the county treasurer had disregarded the order of registration of the claim of the relator, paying other claims in preference to it over which it was

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