Farson, Son & Co. v. Bird

• Citation: 72 So. 550,197 Ala. 384
• Decision Date: 06 July 1916
• Docket Number: 7 Div. 819
• Court: Alabama Supreme Court
• Parties: FARSON, SON & CO. v. BIRD, County Treasurer

72 So. 550

197 Ala. 384

FARSON, SON & CO. v. BIRD, County Treasurer

7 Div. 819

Supreme Court of Alabama

July 6, 1916

Appeal from Shelby County Court; E.S. Lyman, Judge.

Application for mandamus by Farson, Son & Co. against Joe E. Bird, County Treasurer. From judgment for respondent, petitioner appeals. Affirmed.

G.W.L Smith, of Brewton, for appellant.

Haynes & Wallace and Saxon & Acuff, all of Columbiana, and Rushton Williams & Crenshaw, of Montgomery, for appellee.

PER CURIAM.

This is an application for mandamus to compel the treasurer of Shelby county to pay certain county warrants held by petitioners which warrants are past due.

It is well-settled law that mandamus will lie to compel a treasurer to pay a special claim out of a special fund, and in some cases it will lie, though an action might be maintained against him for such failure. Sessions v. Boykin, 78 Ala. 328; Wyker v. Francis, 120 Ala. 520, 24 So 895.

There is a class of claims, however, as to which it is held that mandamus will not lie against a county treasurer for failure to pay, even though he have the funds in hand and ought to pay, because our statutes have provided a summary and adequate remedy against the county treasurer and his bondsmen. Arrington v. Van Houton, 44 Ala. 284; Hines v. Salter, 154 Ala. 248, 45 So. 587; Norwood v. Goldsmith, 162 Ala. 171, 50 So. 394; Brown v. Gay-Padgett Co., 186 Ala. 561, 65 So. 333.

The rule announced in the above line of cases is here sought to be avoided, by making the application in the alternative that is, if mandamus will not lie, that the application or petition be then considered a summary motion such as is provided for by the statute. It is alleged, however, that both the treasurer and his bondsmen are insolvent, and that therefore the summary motion would be not adequate, but abortive.

It is unnecessary now to decide whether the application for mandamus and the summary motion may be united, or whether the facts averred here are sufficient to warrant such joinder, if allowable, or whether the insolvency of the treasurer of all his bondsmen would give the right to mandamus when such right would not otherwise exist, because the case can, and should, be disposed of on another ground, which goes, as this record shows, to the rights of the parties, whether the remedy be one or the other of the above mentioned.

Neither remedy is availing, under the facts as here alleged, unless the county treasurer as such has funds in his hands liable to the payment of the demand, and which he ought, as treasurer, to pay thereon. Mandamus will not lie unless he has funds actually in hand which he ought to apply as payment. He may have wrongfully paid out funds on other demands, which he should have kept and applied exclusively to petitioners' demand; yet this fact would not warrant mandamus unless he has funds actually in hand, and therefore can pay them on petitioners' demand. Mandamus would be useless if he did not have funds in hand with which to pay, and courts never do the useless thing of awarding a mandamus which could not be obeyed. Mandamus will not lie, to make him pay, out of his individual funds or out of public funds not liable to the particular claim or demand sought to be enforced by mandamus. A county treasurer, as such, cannot be compelled by mandamus to pay out of his individual funds or out of the general funds of the county, a claim against a special, and not the general, fund. He is liable for breaches of his official duty in the wrongful payment of the county funds, as on claims for which the particular fund was not liable; but the remedy against him is not and cannot be by mandamus.

The real case made by the petition is that in the years 1905-1907, Shelby county, acting through its governing body the commissioners' court, which body is clothed with limited Legislature, judicial, and executive functions, decided to build and furnish an expensive county courthouse. To this end the commissioners entered into contracts, chiefly with B.C. Bynum Construction Company, and possibly with other companies in part. The work and materials were to be paid for in interest-bearing county warrants, maturing in annual installments, some of the payments being deferred for several years then to come. The commissioners then agreed to levy annually a special tax of one-fourth of 1 per cent., as authorized by subdivision "a" of section 215 of the Constitution, and by the statutes provided to make the constitutional provisions operative, and that the courthouse warrants so issued, together with the interest thereon, should be paid out of this special fund thus raised and to be raised. Subsequently, there was a change of the governing body of the county, from a court of county commissioners to a court or board of revenue, and a consequent change in the personnel of the officers; and instead of carrying out the contract to make the special levy to pay the courthouse warrants theretofore issued and which were maturing, and would continue to mature for several years in...