Ray v. Wilson

• Decision Date: 01 February 1892
• Citation: 29 Fla. 342,10 So. 613
• Parties: RAY, County Treasurer v. WILSON.
• Court: Florida Supreme Court

10 So. 613

29 Fla. 342

RAY, County Treasurer v. WILSON.

Florida Supreme Court

February 1, 1892

Appeal from circuit court, Brevard county; JOHN D. BROOME, Judge.

Mandamus proceedings by Thomas E. Wilson against S. H. Ray, treasurer of Brevard county, to compel him to pay certain warrants. From a judgment for plaintiff, defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where a clerk of the circuit court is ex officio auditor of his county, and it is his official duty to audit all accounts against the county, in the manner prescribed by the statute and to keep on file in his office the vouchers for all claims audited by him, and the law also provides that all accounts against a county shall be approved by the county commissioners before they are audited by the clerk, warrants or orders in favor of third parties, issued by the clerk under his seal of office, directed to the county treasurer and expressed upon their face to be 'chargeable under head of county expenditures,' or to be payable 'out of any money in the treasury appropriated for county purposes,' are prima facie valid claims against the county.

2. Mandamus lies against a county treasurer to compel the payment of a valid warrant or order drawn on him as such treasurer, and for the payment of which he has the necessary funds applicable thereto.

3. Where an alternative writ of mandamus, brought to compel the payment, by a county treasurer, of county warrants, shows that warrants, regular upon their face, were issued by the proper officer, and for value received, and that the treasurer has the funds for their payment, it is not demurrable.

4. The fact that an ordinary action at law obtains against a county on a county warrant, does not constitute a specific and adequate remedy avoiding amandamus for its payment in favor of the holder of such warrant against a county treasurer having the necessary funds for its payment.

5. A return to a sufficient alternative writ of mandamus must state all the facts relied upon by the respondent with such precision and certainty that the court may be fully advised of all the particulars necessary to enable it to pass upon the sufficiency of the return, and its state ments cannot be supplemented by inference or intendment. A return that the warrants whose payment is sought are spurious, illegal, and void is, being a mere conclusion of law, insufficient, as likewise is a return that the warrants were issued and are held without valuable consideration; such statement being made, not as a positive averment of such fact, but as an inference or argument drawn from or based upon allegations which do not support the inference or argument.

6. Assuming that an order by a board of county commissioners duly entered upon its records, authorizing the issue of county warrants, to be necessary to the validity of warrants of which payment out of the county treasury is sought by mandamus, a return stating that no such order appears upon the records of the board is insufficient. It is not incompatible with the fact that such an order was duly made and entered upon the records, nor tantamount to an allegation that no such order was ever passed and entered.

7. An order of a board of county commissioners requiring that county warrants previously issued shall be presented for re-examination by the board, and providing that all such scrip not presented by a stated day shall be of no effect, or 'repudiated,' is, though published according to the terms of the order, no defense to the payment of warrants not presented.

8. The statement of a return to an alternative writ of mandamus should be positive, and not on information and belief.

9. The delay of the relator in instituting proceedings by mandamus should be taken advantage of by proper pleading in the trial court. It cannot be urged primarily in the appellate court.

COUNSEL Minor S. Jones, for appellant.

Thos E. Wilson, in pro. per.

OPINION

RANEY C.J.

This is an appeal from a judgment awarding a peremptory writ of mandamus requiring the appellant, the county treasurer of Brevard county, to pay certain county scrip or warrants.

The warrants consist of two pieces, each of the denomination of $10, dated October 26, 1876, and purporting to have been issued in the office of the clerk of Brevard county, at Lake View, by John M. Lee, clerk of the circuit court of that county, and ex officio auditor, and sealed with the official seal of such clerk, and in favor of William Shiver or order, and 'chargeable under head of 'County Expenditures," and indorsed by Shiver; and of seven other pieces, six of which are for $20, and one for $10, drawn in favor of the relator, and dated May 2, 1876, at Lake View, in the above county, signed by John M. Lee, clerk of such court, and sealed as above indicated, and payable 'out of any meneys in the treasury appropriated for county purposes.' They are all drawn on the county treasurer, and numbered as indicated in the alternative writ. The alternative writ alleges that these warrants were regularly issued, for value received, and that the defendant has in his hands, as such county treasurer, the necessary funds to pay them, and that they have been presented to him, as such treasurer, for payment, but have never been paid, and that defendant is such treasurer.

By the constitution of 1868, as by the present revision thereof, the clerk of the circuit court was made clerk of the boards of county commissioners and ex officio auditor of the county. Section 19, art. 6, Const. 1868, and section 15, art. 5, Const. 1885. The act of June 6, 1870, (section 31, p. 179, McClel. Dig.,) provides that the clerks of the different counties shall audit all accounts against their respective counties in the same manner as prescribed for the comptroller to audit accounts against the state, and that they shall require the same evidence of the legality of claims against counties as is required to establish claims against the state, and he shall keep on file in his office vouchers for all claims audited by him. By the act of February 16, 1872, (page 316, McClel. Dig.,) the county commissioners were given power to approve all accounts against the counties before the same should be audited by the clerk. The legislature of 1877, (sections 12, 13, pp. 317, 318, McClel. Dig.,) being subsequent to the issue of these warrants, need not be considered.

The alternative writ was demurred to on four grounds, one of which was that the relator had filed no cause of action; which ground was sustained and the others overruled; and, the relator filing the cause of action, the defendant answered as required.

The writ states, in our judgment, a prima facie case of pecuniary liability on the part of the county; or, in other words, sets up a sufficiently valid claim against the county to call for a defense.

Under the above constitutional provision and the legislation of 1870, it is clearly an official duty of the clerk of the circuit court to audit all claims against the county, and these warrants issued by him, under his hand and official seal, are the usual and proper evidence then given a creditor of the auditing of his claims against the county, the vouchers for which are presumed to have been duly required by the clerk or auditor, and to have been filed by him in his office. County and city orders issued by the proper officers areprima facie binding and legal. Such officers are presumed to have done their duty, and the orders constitute a prima facie cause of action, the impeachment of which must come from the defendant. Dill. Mun. Corp. § 502; Commissioners v. Day, 19 Ind. 450; Commissioners v. Keller, 6 Kan. 510; Clark v. City of Des Moines, 19 Iowa, 199, 211; Cheeney v. Town of Brookfield, 60 Mo. 53; City of Cornersville v. Hydraulic Co., 86 Ind. 184. It is, in the absence of any showing to the contrary, to be presumed that the accounts upon which the warrants were issued were approved by the county commissioners under the act of 1872 before the clerk audited them and issued the warrants sued on. It was not necessary to specify the consideration of the warrant in the writ. Commissioners v. Day, supra. An alternative writ is not demurrable, if it states a prima facie case. State v. Mayor, etc., of Jacksonville, 22 Fla. 21. This writ shows that the scrip was issued by the proper officer, and for value received, and that the treasurer has funds to pay it; and the judgment must be affirmed, unless we find either that the relator has another specific and adequate remedy, or that the matters set up in the return are sufficient to bar a recovery in this proceeding. To these questions, in the order stated, we shall address ourselves.

In Com. v. Johnson, 2 Bin. 275, the decision was that mandamus lay to compel road supervisors to pay orders drawn on them in favor of surveyors by justices of the peace, under the provisions of a statute. 'It is said,' observes the opinion, 'that the supervisors may be indicted for neglect of duty. But, if they were indicted and convicted the orders might still be unpaid. It is said, also, that, if they withhold payment without just cause, they are liable to an action. Granting that they are, it must be brought against them in their private capacity, and there is no form of action against them which, being carried to judgment, will authorize an execution to be levied on the treasury of the Northern Liberties. Now it was to this treasury that the surveyors had a right to look when they acted under their commission from the governor.' In Baker v. Johnson, 41 Me. 15, mandamus was granted to compel a county treasurer to pay the account of a sheriff for his services and those of his subordinates in attending court. His bills were audited and allowed by the...