Rhodes v. Marengo County Bank

• Decision Date: 12 May 1921
• Docket Number: 2 Div. 764
• Citation: 205 Ala. 667,88 So. 850
• Parties: RHODES v. MARENGO COUNTY BANK.
• Court: Alabama Supreme Court

88 So. 850

205 Ala. 667

RHODES v. MARENGO COUNTY BANK.

2 Div. 764

Supreme Court of Alabama

May 12, 1921

Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.

Petition by Roy G. Rhodes, for mandamus to be directed to the Marengo County Bank, as county depositary for Marengo county requiring it to pay a certain warrant issued by the commissioners' court of said county, payable to one B.F Whitcombe, and properly assigned to petitioner. From a decree denying the writ, petitioner appeals. Reversed and remanded.

While Act Sept. 22, 1915 (Laws 1915, p. 573), authorizes the transfer of any surplus of the general fund to road fund, a transfer of a portion of the general fund to the road fund cannot be justified under that act, where the county was much indebted, and there were warrants having priority unpaid.

The facts found by the court trying the cause, and directed to be here reproduced, are as follows:

That the contract, upon which the warrant in this proceeding is based, was made and entered into by the said B.F. Whitcomb and the commissioners' court of Marengo county, Ala., in the year 1917, and prior to the issuance of the said warrant and that the same was fully performed by the said Whitcomb on his part; that thereafter the said Whitcomb did present to the court of county commissioners of said county a claim for the said work in building the said county bridge, duly itemized and verified, as required by law, and that thereupon the said court did make an order allowing the said claim, and directing the judge of probate to issue to him a warrant for the said claim, and the interest thereon, in all respects as provided for by the said contract, at a regular term of the said court; that thereupon the said probate judge did issue the warrant, which is attached to the petition in this cause, and that the said Whitcomb did, on the 4th day of April, 1917, have the said warrant registered against the general fund of Marengo county by the county depositary of the said county, and that he thereafter indorsed, transferred, and delivered the same to the petitioner in this cause, who is the present owner and holder of the same, and is entitled to collect the same. The court further finds that the said petitioner did, on the 3d day of March, 1921, duly present the said warrant to the Marengo County Bank, as county depositary, and that the said bank was then the county depositary, and did demand payment of the same, and that the said depositary did decline to pay the same, assigning as ground therefor, in writing, the cause set forth in the petition in this case, and no other. The court further finds that the said bank, as such depositary, did have in its hands at the time of the said presentation and demand sufficient funds, belonging to the county, and in the general funds thereof, with which to pay the same, and which could have been lawfully applied to such payment, unless the appropriations made by the said commissioners' court of Marengo county for a budget system, made on the 17th day of January, 1921, and the 23d day of February, 1921, true and correct copies of which are attached to and made a part of the return in this proceeding, and made under the authority of the act approved September 25, 1919, authorizing the counties to adopt the budget system, and found on page 722 of the General Acts of 1919, were lawfully made, and operated to transfer all the money in the general fund to the said funds named in the said orders, for the special purposes named in the same, and which withdrew the same from the said general fund, though not actually transferred at the time on the books of the county depositary. The court ascertains and finds that the said act, approved September 25, 1919, authorizing the commissioners' court to adopt a budget system (Acts 1919, p. 722), and to transfer and to appropriate the same to the expenses of the county, is a valid and lawful act, in so far as the petitioner's said warrant is concerned, issued prior to the said act, though said orders put it out of the power of the county depositary to then pay the same.

The court further finds that the county of Marengo was, on the dates the said orders were made, and now is, largely indebted, and that it is practically four years behind in the payment of warrants registered against the general funds of the said county, most of which bear interest at the rate of 8 per cent. per annum, until payable, in the order of their registration, and that the said indebtedness is largely more than $50,000, and the warrants lately issued are being sold at a discount of from 15 to 33 per cent., even where bearing interest at 8 per cent. per annum, and that adopting the budget system, as provided for in the said act of 1919, would enable the county to pay cash, approximately, for work, labor, material, and other county expenses, and operate a large saving to the said county, and be highly beneficial to the county, and that the orders of the said court were made in good faith, and with the purpose of protecting the interest of the said county the court ascertains, and so holds, that the said act of 1919, in so far as it relates to the warrant in this proceeding, and the said orders of the commissioners' court, in so far as they affect or relate to the petitioner's said warrant in this case, were and are valid and legal in all respects, though the court further finds that the necessary and logical effect of the said orders of the commissioners' court necessarily postpones the time of payment of the said warrant, and makes the time wholly indefinite and uncertain as to when the same will be paid.

The court further finds that the said two orders of the commissioners' court furnish a valid and legal excuse to the said Marengo county bank, as county depositary, for its refusal to pay the said warrants, as alleged in the petition and admitted in the answer or return to the writ, and therefore the said petitioner is not entitled to the peremptory writ of mandamus to compel the payment of the said warrant as against the said bank, as county depositary.

I.I. Canterbury, of Linden, and B.F. Elmore, of Demopolis, for appellant.

William Cunninghame, of Linden, for appellee.

SAYRE J.

Application by appellant for a writ of mandamus to compel the respondent bank, as county depositary for Marengo county, to pay a warrant drawn by the commissioners' court in favor of B.F. Whitcomb, and by him assigned to appellant. The parties agree that it shall be considered for the purpose of this case that appellant has the same right to relief that his assignor would have had in the absence of an assignment. In the trial court the application was denied, after which this appeal. The facts are stated in the trial court's opinion and judgment, which will be...