Ramage, Parks & Co. v. Folmar

• Decision Date: 28 March 1929
• Docket Number: 4 Div. 350.
• Citation: 121 So. 504,219 Ala. 142
• Court: Alabama Supreme Court
• Parties: RAMAGE, PARKS & CO. v. FOLMAR, COUNTY TREASURER, ET AL.

121 So. 504

219 Ala. 142

RAMAGE, PARKS & CO. v. FOLMAR, COUNTY TREASURER, ET AL.

4 Div. 350.

Supreme Court of Alabama

March 28, 1929

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Motion for summary judgment by Ramage, Parks & Co. against W. B Folmar, as County Treasurer, and W. B. Folmar & Sons Bankers, as sureties on his official bond. From a judgment denying the motion, plaintiffs appeal. Reversed and remanded.

A. G Seay, of Troy, for appellants.

T. L. Borom and John H. Wilkerson, both of Troy, for appellees.

THOMAS J.

A former appeal is reported as Ramage, Parks & Co. v. Folmar, 214 Ala. 661, 108 So. 580. The proceeding was in accordance with the provisions of the statute. Section 10265, Code.

This appeal presents for decision the rulings on admission of evidence and the rendition of the judgment; the overruling of appellant's motion for summary judgment, as provided by section 10265, of the Code, against an acting county treasurer, under sections 319 and 322 of the Code.

The item of interest from time fixed for payment and damages of 10 per cent. and costs are also sought to be collected, for failure to pay over moneys of the county alleged to be due and withheld after due demand for payment. Section 10266, Code.

Some of the warrants in question, on which movant predicates this motion, were discussed on the former appeal. 214 Ala. 661, 108 So. 580. After the reversal of the cause, the warrants were again presented and refused payment by the defendant acting as county treasurer or disbursing agent for county funds. Among other things, it is averred in the motion "that at each of the said times when said warrants were so presented, there were funds in the treasury to pay the same and that said treasurer failed on such demand and without good excuse to pay the said warrants or any one of them." The condition of the county's finances pertinent to the issues presented in the motion is denied, and it is averred, by way of answer (1) that there were no funds in the county treasury in excess of the necessary moneys for the payment of the "current expenses of the county for the year"; (2) in excess of that required "for the payment of preferred claims against the county," and that the warrants of movants were "not preferred claims"; (3) that "on the 1st day of January, 1925, the Judge of Probate of said county served upon W. B. Folmar, Treasurer of said county, a written notice, or budget, of the expenses of said county for the year 1925, which are preferred claims against said county, requiring him to hold said sums necessary for the payment of said preferred claims, said notice or budget being hereto attached, marked Exhibit 'A,' and made a part of this answer, *** and that there were no moneys in the treasury of said county at the time the warrants of the plaintiffs were presented for payment in excess of the moneys necessary for the payment of said preferred claims, sufficient for the claims of the plaintiffs." The answer purports to set out the financial status of the county and its general fund at the time said warrants were presented; avers at the time the warrants of the plaintiffs were presented for payment, that (there) were a large number of claims registered against the fund from which said warrants were payable, which claims were registered prior to the claims of the plaintiffs, and still unpaid, *** and there were not sufficient moneys in said fund, at said time, not otherwise appropriated, to pay the claims of the plaintiffs."

In the agreement of counsel it is stated: "That plaintiffs are the owners and in the possession of several warrants described in their motion; that said warrants are valid and proper charges against the general road fund of said county; that they are severally registered against said general road fund of said county and given registration numbers as alleged in said motion; that said warrants were duly presented to the treasurer of said county for payment on the 25th day of February, and again on the 2d day of March, 1925, and that at both times W. B. Folmar, who was at such time treasurer of said county. refused to pay said warrants, or any part of them;" that said defendant was the acting treasurer under the statute, and had so acted from September 15, 1915, the date of appointment; that the budget served on the county treasurer for said year embraced items of cost bills for convicts of $4,000 and interest of $18,130 on the issue of road and bridge bonds. This budget was adverted to on former appeal. A levy of 25 cents on each $100 taxable property was admitted, to be used in the payment on bonds, and the surplus "for constructing and maintenance of the public roads." It is further shown that the county had borrowed and secured by "tax anticipation notes" the sum of $50,800, registered January 7, 1925; the sum of $3,791.60 registered January 7, 1925; and $5,500 registered January 27, 1925; and a last note for $390 registered January 27, 1925. All of said notes were made due and payable on February 1, 1925.

The nature of county warrants, as distinguished from a bond that may be issued under the Constitution (sections 222, 224), was the subject of discussion in Littlejohn v. Littlejohn, 195 Ala. 614, 71 So. 448; Marengo County v. Barley, 209 Ala. 663, 96 So. 753; Kimmons v. Jefferson County Bd. of Education, 204 Ala. 384, 85 So. 774; Stone v. State ex rel. Jett-Muths Const. Co., 204 Ala. 13, 85 So. 443, First Nat'l Bk. of Abbeville v. Terry, Briggs & Co., 203 Ala. 401, 404, 83 So. 170.

The action of the county in making temporary loans in anticipation "of taxes" (from funds with a potential existence that are derived from taxable properties, etc.) for the current year was, from time to time, to be governed and tested by the General Acts of 1915, p. 105, or sections 6776-6788, Code. Troy Nat'l Bk. v. Russell Co. (D. C.) 291 F. 185, 188. The effect of Special Session Acts of 1920, p. 10, was declared in Hendrix v. Fountain, 206 Ala. 65, 89 So. 449; Court of County Com'rs of DeKalb County v. McCartney, 207 Ala. 230, 92 So. 439; Gamble v. Com'rs Court of St. Clair County, 207 Ala. 317, 92 So. 902, and before the adoption of the Code on August 17, 1923, p. 128. The gasoline excise tax was passed on February 10, and August 22, 1923.

When the Code was considered and the provisions of article 3, §§ 6776-6788, as to "interest bearing warrants of counties," added by the code committee of the Legislature, there was no excise tax. And the terms of the statute, "in anticipation of the collection of taxes for the year," § 6776; "one half of the income from taxation of said county for the preceding year," § 6777; and requiring said warrants to be "registered by the proper authority in said county in the order in which they are issued and the court of county commissioners, board of revenue or other governing body have set aside and apart out of the taxes for the current year a sufficient amount to retire such warrants. Said warrants shall be paid in the order of their registration and entitled to priority of payment out of the proceeds of the taxes of the current year," § 6778-were intended to apply to anticipated incomes from taxable properties for the year, and not to excise or license taxes.

It may be further noted that the answer of the treasurer gives the amount of the registered claims here pertinent, in the aggregate sum of $6,068.05 (not to embrace movant's warrants registered as claim numbers 827 and 828, in the amounts of $474.62 and $980); that the registered claims were in the aggregate of $16,496.92, if made to embrace movant's warrant No. 849 for $2,610 and the amount of registered claims is $27,285.05, if there is included the last claim of movant on which the motion is predicated.

The agreed statement of facts fixed the total amount of registered claims against the county's general fund at $60,645.85.

The classification of the registrations of claims here pertinent should be thus stated:

$ 6,068.05 Total registration prior to first two of movant.

1,454.62 First two of movant's registered claims.

3,396.95 Total registration between first two and second two of movant.

5,586.34 Second two of movant's registered claims.

9,098.46 Total registration between second two of movant and his last one.

1,689.63 Last one of movant's registered claims.

----------

$27,294.05 Balance necessary and available to pay all of movant's warrants.

The financial statement of the county exhibited is that on January 1, 1923, that municipality issued bonds, and the proceeds of the sale thereof were $151,941.60, and credited to the general fund; that the proceeds from the gasoline excise tax were kept separately from the general and other road fund, and were expended for current supplies, machinery, and work for and done on the public roads of the county; and that no part of said fund was or may be used in the payment of registered warrants "against the General Road Fund." The amounts received from the gasoline excise tax fund are recited, but, not being available for payment of such registered claims of the class of which were movant's registered claims, need not be recited. The agreed statement of facts, however, states these several sums as: In general fund $22,888.48, to road fund $13,410, gas excise tax to March 2, 1925, $2,187.36, and to July 1, 1925, $6,698.39, on which date the gas excise tax had been expended pursuant to law.

It is here necessary that we consider the one item of rejection of evidence over due exception of appellant. The record recites, as to this:

"The movants them exhibited copy of a warrant drawn on the Treasurer of the County, No. 744, the same being marked Exhibit C', which warrant being read is as follows, to wit:

"

...