State ex rel. Haas v. Stone

• Citation: 240 Ala. 677,200 So. 756
• Decision Date: 27 February 1941
• Docket Number: 1 Div. 136.
• Parties: STATE EX REL. HAAS v. STONE, COUNTY TREASURER.
• Court: Supreme Court of Alabama

200 So. 756

240 Ala. 677

STATE EX REL. HAAS v. STONE, COUNTY TREASURER.

1 Div. 136.

Supreme Court of Alabama

February 27, 1941

Rehearing Denied March 20, 1941.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Proceeding by the State of Alabama, on the relation of F. E. Haas, as Chairman or President of the Board of Revenue and Road Commissioners of Mobile County, for a writ of mandamus to require George E. Stone, as Treasurer of Mobile County, to register and pay a salary warrant. From a judgment dismissing the petition, relator appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Gordon Leigh, Leigh & Gordon, of Mobile, for appellee.

THOMAS Justice.

The petition was for mandamus to compel payment of salary of an official alleged to be due. There was a judgment sustaining demurrer and dismissing the petition and the taxing of petitioner with the costs.

The grounds of demurrer are to the effect that there was no law in force which made it the duty of appellee, as Treasurer of Mobile County, to honor the warrant in this suit.

The decision of this case depends on the answer to the question of whether Section XXIV of the General Acts of 1939, Acts 1939, pp. 178-189, which was approved March 15, 1939, and which reads as follows: "Sections 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78 and 79 of an Act entitled 'An Act to provide for the general revenue of the State of Alabama,' approved July 10, 1935, and appearing in 1935 General Acts beginning on page 256, be and the same are hereby specifically repealed 30 days after the passage and approval of this Act." repeals the Act of October 1, 1923 (General Acts of 1923, § 50, p. 179) and which is the same as the General Act of 1935, § 67, p. 289, which reads, in part, as follows: "The members of the courts of county commissioners or Boards of revenue, other than the judge of probate, of the several counties of the State, together with the tax assessor of such counties are hereby constituted a board of review, whose duty it shall be to inspect, review, revise, and fix the value of all the property returned to or listed with the tax assessor for taxation each year; * * *."

In the General Acts of 1923, p. 179, § 50, the members of the courts of county commissioners or boards of revenue "other than the judge of probate * * *together with the tax assessor of such counties are hereby constituted a board of review, * * * to inspect, review" and revise and fix the "value of all the property returned to or listed with the tax assessor for taxation each year; * * *."

The last provision was carried into the revenue law of 1935 (Acts 1935, p. 289, § 67 et seq.) as above set out. It is observed from this that a new board with specific duties imposed upon its membership, which provided for a new member, secretary and presiding officer from that theretofore existing, under the applicable statutes, was created by the foregoing acts.

Section 50, Gen.Acts 1923, p. 179, declares that the "majority of the board of review shall constitute a quorum"; § 51, Acts 1923, p. 180, gives the right to make rules necessary to carry out the provisions of the act to the end in view;§ 53, Acts 1923 p. 180, provides for the oaths of office for each member of the board of review "herein created"; § 55, same act, p. 181, provides the time when the specific duties shall be performed; § 57, same act, p. 182, provides for the hearing of objections duly filed, and §§ 59 and 60, same act, pp. 182 and 183, provide for an appeal by the property owner.

In the General Revenue Act of 1935, Acts 1935, p. 256 at p. 289, the above provisions of the Act of 1923 were re-enacted, being sections 67 to 79, inclusive, under Article III. Said act repealed all laws or parts of laws in conflict with the provisions thereof.

It should be observed that the officers dealt with in the foregoing statutes were such officers as were paid a salary as county commissioners or officials. However, the legislature passed an act providing for the pay of the incumbents in office and for discharging the duties of the board of review, Gen.Acts 1923, p. 596. This act providing for the salary was effective as of the date of organization of the board of review under the Gen.Acts of 1923, p. 179, § 50. It will be noted, further, that by these revenue statutes, the judge of probate, who had theretofore been the president of such boards (under Section 6748 of the Code of 1923) and who had kept the records of the proceedings of such board under Section 6763 of the Code of 1923, was no longer made a member of the board of review, and in his stead the tax assessor became a member and clerk of said board by express statutory provision, keeping separate minutes under different presiding officers and different secretaries in the respective counties.

The Act of 1939 (General Acts of 1939, p. 178 et seq.) created a "County Board of Equalization" and provided for the selection of its members in a different manner from that formerly in effect. Said act also provided for the terms of office of the various members, as well as for the compensation to be derived. It provided for the powers, rights, authority and duties of said County Boards of Equalization and members thereof; provided for a secretary for each of said boards, who was the county tax assessor, and "abolish[ed] the several County Boards of Review, as now or heretofore created, and * * * repeal[ed] all laws in conflict with this Act."

The question before us for decision was practically decided in State ex rel. Towle v. Stone, County Treasurer, 236 Ala. 82, 181 So. 281, 282, wherein it was declared:

"Following earlier decisions, the established rule is stated in Board of Revenue and Road Com'rs of Mobile County v. State ex rel. Drago, 172 Ala. 155, 54 So. 995, in the following language: 'The law of this state (however it may be in other jurisdictions) is long and well settled that counties are governmental agencies of the state, and that they are therefore chargeable with and liable for those claims or demands--and those only--which the law imposes upon them, or empowers them to contract for. No officer can charge the county with the payment of any claim due him, however meritorious or whatever benefit the county may derive therefrom, unless expressly or by necessary implication authorized by law. * * *

"Here it is clear enough the Board of Revenue as such is charged with no duty concerning the matter of property valuation for taxation purposes, which was imposed upon the Board of Review, the other tribunal and a quasi judicial body created for that specific purpose. Gen.Acts 1923, p. 179 et seq. * * *

"The matter of adjustment of tax valuation rested with the Board of Review. Neither the county nor its Board of Revenue were delegated any duty or authority in relation thereto. Incidentally, of course, the county had an interest. But there was no duty imposed concerning this adjustment. * * *" [[[Italics supplied.]

In Hard, State Comptroller, v. State ex rel. Owen, 228 Ala. 241, 153 So. 725, 726, it will be noted that a public officer of the state is described as follows: "It seems to be well settled that one who performs a public function and his authority is derived directly from the state by legislative enactment, and the law prescribes his duties, powers, and authority, such an one is a public officer of the state. State ex rel. Robertson v. McGough, 118 Ala. 159, 164, 24 So. 395; State ex rel. Winter...