First Nat. Bank of Abbeville v. Terry, Briggs & Co.

• Decision Date: 19 June 1919
• Docket Number: 4 Div. 811
• Citation: 203 Ala. 401,83 So. 170
• Parties: FIRST NAT. BANK OF ABBEVILLE v. TERRY, BRIGGS & CO.
• Court: Alabama Supreme Court

83 So. 170

203 Ala. 401

FIRST NAT. BANK OF ABBEVILLE v. TERRY, BRIGGS & CO.

4 Div. 811

Supreme Court of Alabama

June 19, 1919

On Rehearing, October 23, 1919

Appeal from Circuit Court, Henry County; H.A. Pearce, Judge.

Petition for writ of mandamus by Terry, Briggs & Co. against the Bank of Henry; the First National Bank of Abbeville being substituted as respondent. From an order awarding the writ respondent appeals. Reversed and remanded.

R.W Miller, of Abbeville, and W.W. Sanders, of Elba, for appellant.

Chapman & Lewis, of Dothan, for appellee.

McCLELLAN J.

This proceeding originated in a petition for a writ of mandamus to require the depository of Henry county, the Bank of Henry, to pay out of a special, distinct fund, the road and bridge fund, in its hands, certain warrants of the county of Henry drawn against that particular fund. Subequently, the appellant, the depository succeeding the Bank of Henry, was substituted as respondent. The agreed statement of facts affords the evidence presented to the trial court for its consideration and upon which its conclusion awarding the writ was rested. The several warrants designated in the petition were warrants contemplated by contracts made by the county of Henry, through its court of county commissioners, with several contractors to repair or construct public roads and bridges in the county.

On February 9, 1915, the county entered into a contract with J.G. Brown to build the Eufaula and Abbeville road; on the same date, with Watley Bros. & Chambliss, to build the Abbeville and Marianna road; on March 25, 1915, with J.G Brown, to build the Abbeville and Franklin road; on the same date, with J.G. Brown, to build the Abbeville and Clopton road; on April 6, 1915, with C.E. Simmons & Son, to build the Columbia and Newton road, and with the Southern Bridge Company, to build certain steel bridges in Henry county. While these contracts bore an estimate of the probable amount of the obligation they each sought to impose upon the county, yet it appears from them that the actual amount of their obligation was to be dependent upon the work as done and as approved by the engineer, upon which the court of county commissioners should proceed to audit and allow the respective claims for the work done by the several contractors.

It appears from the agreed statement of facts that the services thus contemplated were performed according to the contracts, and that the claims for the respective sums stated in the warrants in question were audited and allowed by the court of county commissioners, thus disclosing conformity to the command of Code, § 146, which requires the audit and allowance of claims of the character here involved. Smith v. McCutchen, 146 Ala. 455, 41 So. 619. It is further recited in the agreed statement of facts that the warrants in question were issued by the judge of probate under the order of the court of county commissioners, necessarily implying, nothing to the contrary appearing, that they were signed by that official. It is further recited in the agreed statement of facts that at the time this proceeding was instituted the petitioners, appellees, were in possession of and owned the warrants in question, through formal assignment thereof, for value received, by those to whom they were issued; disclosing the right, unless otherwise qualified, in the petitioners to have their warrants satisfied out of the special fund derived from the levy of the special tax for road and bridge purposes and pledged in the contracts to the payment of the obligations thereby assumed on the part of the county. The recital of the agreed statement of facts that the ownership thus admitted was, in effect, subject to the asserted legal condition that the stated assignment of the warrants "passed the legal title out of the parties to whom they were issued," did not, of itself, serve to qualify the right of the petitioners to have the sums called for by the warrants paid to them as the owners of the warrants. This proceeding is not an action on the warrants. See Savage v. Mathews, 98 Ala. 535, 537, 13 So. 328; Littlejohn v. Littlejohn, 195 Ala. 614, 71 So. 448. Its purpose is to require the performance of a ministerial duty on the part of the depository to deliver the special funds, so garnered, in redemption of the pledge so made.

It appears from the agreed statement of facts that these warrants were presented (unnecessarily, we think) to and registered by the county treasurer (Code, § 211), and that the records of that office were destroyed by fire in November, 1916. Code, § 151, provides:

"Claims against a county in which the records have been destroyed by fire are barred if not registered in the proper office of the county within twelve months."

The object of this requirement, and the bar made consequent upon the failure to observe its exaction, was to impose upon those holding allowed claims to register them in the proper office upon the sole condition that the records have been destroyed by fire. It may be quite doubtful whether this requirement had reference to registration with the county treasurer. It is not now necessary to determine that question. Under Code, § 147 the requirement is that--

"All claims passed upon and allowed, according to this section, must be entered in the order in which they were allowed, in a book kept for that purpose, and filed for future reference, within two weeks after the term at which such allowances were made."

Nothing to the contrary being shown, it must be assumed that the record required by section 147 was properly kept. If that record has not been destroyed, which fact is not shown, there remains a record that precludes the possibility of the existence of the single condition upon which the exaction of Code, § 151, is rested. It results that the bar asserted as upon the failure of the holders of these warrants to register them within twelve months after the fire which destroyed the records of the county cannot avail to deny the petitioners the relief sought.

According to the agreed statement of facts, the contracts under which the warrants here involved were issued Were entered into at the times respectively stated. In due course, the work thereunder having been done, the claims supporting these warrants were audited and allowed and the warrants issued in accordance with the direction of the court of county commissioners. The act approved September 15, 1915 (General Acts, 1915, pp. 348-350) abolished the office of county treasurer in Henry, among other counties, and created county depositories-- contractees (Compton v. Marengo County Bank, 82 So. 159)--in partial substitution therefor. But the act creating depositories did not go into effect until January, 1917, some time after these road and bridge contracts were consummated, and after the court of county commissioners had audited and allowed the claims for which these warrants were issued. There is nothing in the act creating the depositories that indicates a purpose to affect, embarrass, or impair rights that had been validly acquired before the act of 1915 went into effect in January, 1917. To attribute to the act creating depositories an operation that would avoid the theretofore lawfully accomplished audit and allowance of claims, and, in consequence, reflect upon the validity of warrants regularly issued upon such audit and allowance, would require the reading of the act to a retroactive effect--an effect that is never attributed to an act unless the Legislature has expressed a clear intention to that end. Dickens v. Dickens, 174 Ala. 305, 311, 56 So. 806. There is no merit in the contention that the asserted changes in responsibility and duties wrought by the act creating county depositories imposed upon those holding these warrants different obligations, in substance or method, that, if undischarged, would justify the depository in refusing payment of the...