Norwood v. Goldsmith

• Decision Date: 19 May 1910
• Citation: 168 Ala. 224,53 So. 84
• Parties: NORWOOD v. GOLDSMITH, TREASURER, ET AL.
• Court: Alabama Supreme Court

53 So. 84

168 Ala. 224

NORWOOD v. GOLDSMITH, TREASURER, ET AL.

Supreme Court of Alabama

May 19, 1910

Rehearing Denied June 30, 1910.

Appeal from Circuit Court, Lowndes County; J. C. Richardson, Judge.

Action by Joseph Norwood against Robert L. Goldsmith, Treasurer of Lowndes County, and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

See also, 50 So. 394.

Troy Watts & Letcher, for appellant.

Marks &amp Sayre, for appellees.

MAYFIELD J.

Appellant is a taxpayer, and appellee Goldsmith is county treasurer of Lowndes county. The other appellees are the sureties on the official bond of Goldsmith. The Legislature, by a local act for Lowndes county, approved Aug. 2, 1907 (Loc. Acts, p. 684), levied a special annual tax of one-fourth of 1 per centum upon all the property in the county subject to taxation; and provided that the tax so levied should be assessed and collected as were other county taxes, and further provided that the tax collector of that county should collect the tax so levied for the year 1907, though the tax had not been actually assessed by the assessor. The tax collector, in pursuance of this act, collected of appellant the sum of $289.08 as a special road tax for the fiscal years of 1907 and 1908.

On September 29, 1903, the Legislature passed a general act (Gen. Acts 1903, p. 278) which provided for the refunding of taxes erroneously paid, and for the presenting of claims for such taxes, to the commissioners' court, for allowance (among other things); and on August 16, 1907, another similar act was approved, which provided for the refunding and recovery of back taxes paid under mistake of law or of fact, or under color of law (Acts 1907, p. 639). These two acts are now embraced in the Code as article 16 of the chapter of Taxation (Code, §§ 2340-2347), section 2346 of which reads as follows: "In case of any petition or application for the refund of any money paid as aforesaid, filed with any mayor and aldermen, or any other municipal or other board, court of chancery, or other authority having the control of the administration or the supervision of the receipts or disbursements of any taxes collected under, or under color of, any law mentioned in the preceding section, it shall, upon proper proof, pay or order paid all such money so erroneously paid, and the tax collector, custodian, disbursing officer, or agency under it must obey such order, and also pay such costs as may in such petition or application or suit be awarded, adjudged, or decreed in favor of such person making such erroneous payment; but this section shall not apply to assessments where owners of property received special benefits, or where taxes were due, but irregularly assessed thereon."

The appellant, conceiving that the taxes had been wrongfully collected of him, because the act under which they were collected was unconstitutional and void, presented his claim to the commissioners' court, and it was audited and allowed by the court on the ground that the local act under which it was levied and collected was unconstitutional and void, the court directing the probate judge to issue a warrant upon the county treasurer for the amount of the taxes paid by the appellee under such special act. A warrant was accordingly issued to the appellee who presented it to the county treasury for payment, and payment thereof was refused. Appellant then applied for a mandamus to compel the county treasurer to pay the warrant. This application was denied (see 50 So. 394). The appellant then moved the circuit court (as authorized by section 5938 of the Code) for a summary judgment against the treasurer and his official bondsmen for failure to pay such claim. The appellees answered the motion, alleging, as a special defense, that the warrant was issued without authority of law, for that the local act had never been judicially declared to be void or unconstitutional by a court of competent jurisdiction; that the commissioners' court had no power or jurisdiction to so adjudge the act; and formally denying the allegations of the motion. The appellant, movant in the court below, demurred to the answer, on the grounds (1) that it neither denied, nor confessed and avoided the grounds of the motion; (2) that the answer was merely a conclusion of law; and (3) that if the act was void a judicial declaration thereof was not necessary to authorize the allowance of the claim or to authorize the issuance of a warrant thereof. There appears to have been no ruling upon the demurrer to the answer, and the motion was heard upon the evidence by the court without a jury. Judgment was rendered against the movant, and for costs, from which he appeals.

The evidence seems to have been agreed upon, and is as follows:

"Plaintiff introduced in evidence a certain warrant issued by the board of revenue of Lowndes county, in words and figures as follows:

No. 9,433. The State of Alabama, Lowndes County.

Board of Revenue.

March 8. Term, 1909.

Treasurer of said County:

Pay Jos. Norwood or bearer Two Hundred Eighty"Nine & 08/100

Dollars for paid as special Road Tax in years 1907 and 1908 under

color

[Arms of an Act, Local Laws 1907, p. 684,

of which law is unconstitutional, out

Alabama.] of moneys in the Treasury created by the collection of such tax.

Issued 8 day of March, 1909.

Countersigned:

A. Douglass, Clerk.

$289.08. C. P. Rogers, Jr., Chairman.

"It was admitted that said warrant was issued by said board for the refund to plaintiff of the money collected from him as special road tax under an act approved August 2, 1907, entitled 'An act for the improvement of public roads of Lowndes county,' referred to; that demand had been made upon the defendant Goldsmith for the payment of said warrant as alleged in the motion herein; that defendant Goldsmith had refused to pay said warrant; that at the time of said demand there were sufficient funds in the hands of defendant as such treasurer with which to pay the same.

"Defendant Goldsmith testified, in substance, that he was county treasurer of Lowndes County; that said warrant was presented to him for payment on March 8, 1909; that he refused, as such treasurer, to pay said warrant for the reason that the special road tax was collected by law, put in his hands as a special road fund, and its payment out of his hands directed by law; and that the warrant was drawn against that fund contrary to said act of 1907 referred to, and also that the board of revenue had no authority to draw said warrant.

"This was substantially all the evidence."

The prime and pivotal question for decision is the constitutionality of the local act (Loc. Acts 1907, p. 684), which levied and assessed and provided for the collecting of the special tax for roads, etc. If this act is valid, then confessedly appellant has no rights in the premises; if void, then he has, and then the other questions--as to the liability of the respondents, as to whether appellant has pursued the proper remedy, as to the validity of the warrant, etc.--will have to be decided. The local act in question is void, for that to be valid it must violate or override the Constitution of the state, which, of course, it cannot do.

What was said in the case of Montgomery City v. Reese, 149 Ala. 190, 43 So. 116, is equally applicable and true in this case, and is decisive of this question: "Section 105, art. 4, of the Constitution, provides that 'no special, private or local law, except a law fixing the term for holding courts, shall be enacted in any case which is provided for by general law, * * * and the courts, and not the Legislature, shall judge as to whether the matter of said law is provided for by a general law. * * * Nor shall the Legislature indirectly enact any such special, private or local law by the partial repeal of the general law.' It is apparent that the subject-matter of the two acts is substantially the same; and it is equally apparent that the inhibition contained in the section of the Constitution quoted was violated by the enactment of the special or local law," etc. It may be that the act is unconstitutional for other reasons, but as to this we do not decide. The act being void, it follows that the special tax in question was improperly levied, assessed, and collected; and that appellant is entitled to recover back the amount which he had thus paid into the county treasury, and which the treasurer testifies he now holds in his official capacity.

The next question is, has appellant pursued the proper course and remedy to recover it? If it was the duty of the county treasurer to pay the warrant when presented for payment, then appellant has pursued the proper remedy, though it may be he had others--as to which we intimate no opinion, because unnecessary. It is sufficient that the one pursued is proper it is not necessary that it be the exclusive one. The action is summary, and is brought under section 5938 of the Code, which reads as follows: "If any county treasurer fail, on demand, and without good excuse, to pay an allowed claim against the county, when there are funds in the treasury to pay the same, judgment may be obtained against him and his sureties, or any or either of them, on five days' notice, on motion in the circuit court of the county, in the name of the party to whom the claim is payable, his legal representatives, or assigns, for the amount of the claim, with interest from the time of the demand, and 10 per cent. damages and costs." Every requisite and condition in the statute necessary to the judgment for movant, being alleged, and proven without dispute, it should have been so rendered for him, unless the treasurer was shown to have had "a good excuse" for such failure. The excuses...