Lovelady v. Copeland

• Decision Date: 11 January 1917
• Docket Number: 6 Div. 404
• Citation: 198 Ala. 625,73 So. 948
• Parties: LOVELADY et al., Board of Revenue v. COPELAND, Clerk.
• Court: Alabama Supreme Court

73 So. 948

198 Ala. 625

LOVELADY et al., Board of Revenue v. COPELAND, Clerk.

6 Div. 404

Supreme Court of Alabama

January 11, 1917

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Petition by W.B. Copeland, as Clerk, against R.F. Lovelady and others as members of the Board of Revenue of Jefferson County, for mandamus to compel the issue of warrants for court costs. From a judgment awarding the writ of mandamus as prayed, the defendants appeal. Affirmed.

W.K Terry, of Birmingham, for appellants.

Cabaniss & Bowie and Burgin & Brown, all of Birmingham, for appellee.

THOMAS J.

The appeal is from a judgment awarding the writ of mandamus against the appellants, as the board of revenue of Jefferson county, to compel the issue of warrants for the court costs in cases where the defendants are convicted of misdemeanors in said county and sentenced to hard labor for the fine and costs.

The appellants' demurrer to the petition was overruled. The answer filed raised the questions presented by demurrer: (1) That mandamus was not the proper remedy; and (2) that petitioner was not entitled to the relief prayed. Thus there was presented the question of the construction of the local act for Jefferson county approved February 1, 1915. Local Acts 1915, p. 3. Sections 1 and 4 of this act provide (following the enacting clause):

"Section 1. That in all cases in Jefferson county Alabama, where convicts have heretofore or shall hereafter be sentenced to hard labor in said county and shall by the board of revenue or other proper official or body be directed and required to work out said sentence and costs at hard labor upon the public roads of said county such board of revenue shall immediately or at its next session pay over to the clerks of the courts of said county where said convicts were sentenced, by warrant drawn on the treasurer of said county and payable out of the general fund or the road fund, as they may prescribe, a sum of money sufficient for the payment of such of the items of the costs of conviction in his case, or cases, if sentenced in more than one case, as each convict has been or shall be sentenced to an additional term or terms of hard labor of the county to pay. ***

"Sec. 4. That the board of revenue of said county be and it is hereby directed to draw its warrants on the treasurer of said county, payable out of the general fund of said county or road fund as they may prescribe, for an amount sufficient to pay the costs of conviction in the case of such convicts as have been sentenced to hard labor for the county and who since April 1, 1913, have been required to work out such costs upon the public roads of said county, and upon the receipt of the money for such costs the clerks of such courts shall pay the same to the persons entitled thereto."

It will be observed that the act has a prospective, and a retrospective, effect, as related to costs where convicts "have heretofore or shall hereafter be sentenced to hard labor in said county and shall by the board of revenue," etc., "be directed and required to work out said sentence and costs at hard labor upon the public roads of said county," and as related to the payment of "the costs of conviction in the case of such convicts as have been sentenced to hard labor for the county and who since April 1, 1913, have been required to work out such costs upon the public roads of said county."

Is mandamus the proper remedy? Appellants thus state their contention:

"The first question presented by the demurrer is that mandamus is not the proper remedy in such cases, as the appellee had another adequate and complete remedy, to wit, suit against the county upon his claim. State ex rel. Ellis v. Board of Revenue of Jefferson County et al., 172 Ala. 190 . In the case of Ellis, just above cited, on page 192 [of 172 Ala., on page 180 of 55 South.], the court uses this language: 'County boards *** may be compelled by mandamus to act upon claims against the county presented to them for allowance (that is, they may by this writ be compelled to act--to allow or to disallow); but they cannot by such writ be directed which of the two they shall do, if the board has any discretion, judgment, or choice in passing upon such questions.' "

An inspection of the act discloses that the board of revenue have a discretion in these two particulars: (1) As to working the convicts upon the public roads at all; and (2) out of which of the two funds, the general fund or the road fund, they will by their warrants authorize the payment of the costs. The board have exercised the discretion as to working the convicts upon the public roads of the county. The petition does not seek to compel, and the judgment appealed from, following the prayer of the petition, does not require, the exercise by the board of their discretion as to which of the two funds, "general" or "road," such warrants for costs will be drawn upon. It is only sought to compel the board by mandamus to act in the exercise of this discretion, and to draw their warrant, as they may deem expedient, on one or the other of the two funds, in discharge of their duty to pay costs, imposed by the statute.

The positive mandate of the statute to draw such...