State v. Board of Revenue and Road Com'rs

• Decision Date: 19 December 1918
• Docket Number: 1 Div. 60
• Citation: 80 So. 368,202 Ala. 303
• Parties: STATE ex rel. CITY OF MOBILE v. BOARD OF REVENUE AND ROAD COM'RS.
• Court: Alabama Supreme Court

80 So. 368

202 Ala. 303

STATE ex rel. CITY OF MOBILE v. BOARD OF REVENUE AND ROAD COM'RS.

1 Div. 60

Supreme Court of Alabama

December 19, 1918

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Petition for mandamus by the State, on relation of the City of Mobile against the Board of Revenue and Road Commissioners. Decree for defendant, and relator appeals. Affirmed.

Robert H. Smith, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

McCLELLAN J.

Petition for writ of mandamus, by the state, on the relation of the city of Mobile, to require the board of revenue and road commissioners of the county of Mobile to discharge the asserted duty of that body to examine or audit certain accounts filed by the city of Mobile with the board of revenue, etc., of the county of Mobile. The duty claimed to exist, the discharge of which is sought to be compelled, is said to have been created by the act approved March 1, 1901 (Acts 1900-01, pp. 1834, 1835). The title, preamble, and sections 1 and 2 of the act read:

"An act to require the county of Mobile to pay one-half of the maintenance of the city hospital of the city of Mobile.

"Whereas, the inhabitants of the city of Mobile pay 88 per cent. of all the county taxes levied and collected in and for the county of Mobile; and whereas, over 60 per cent. of the inmates that are admitted into the said hospital and not residents of the city, but are from the county and state and who live outside of the city of Mobile.

"Section 1. Be it enacted by the General Assembly of Alabama, that the mayor and general council of the city of Mobile shall cause to be kept an accurate and true account of the amount annually expended commencing from the time of the passage and approval of this act by the city of Mobile, and that the number of inmates that are admitted for medical treatment which cannot be given at the city dispensary and are at the same time fit subjects for public charity; it shall be the duty of the board of revenue and road commissioners of the county of Mobile after examination of the said account and on finding the same correct to pay one-half thereof out of the county treasury.

"Sec. 2. Be it further enacted, that the president of the board of revenue and road commissioners of the county of Mobile and the Mayor of the city of Mobile shall issue such permits for admission into the city hospital of the city of Mobile to all persons who make application for admission into the city hospital that are fit subjects for public charity."

The court below refused to grant the writ. Since the writ of mandamus will not issue, either where its effect would be wholly vain or where an adequate remedy at law exists, the action of the court below in refusing the writ was justified.

In Code, § 2472, it is pertinently provided, amendatory of the parent statute (section 13) in the Code of 1896:

"The failure or refusal of the court to enter upon its minutes the disallowance or reduction of the claim for ninety days [presumably after its filing] is a disallowance."

The claim here in question was filed with the county body more than 90 days before this petition was filed. State ex rel. City of Mobile v. Board of Revenue, etc., of Mobile County, 180 Ala. 514, 61 So. 814, is direct authority for the conclusion that the general laws relating to the presentation to the county body of claims of this character and their enforcement--citing sections 147 and 150 of the Code of 1907--were not modified or repealed by any provision in the three acts of the series of which the above-quoted act is one. The inevitable result from that decision is that the claims here in question have been disallowed by operation of the general provisions of law now constituting a part of section 2472, before quoted. To now grant the writ of mandamus to compel an audit of the claims would be a wholly vain act; the claims being already disallowed by the elapsing of the 90-day period prescribed in section 2472. Furthermore in these circumstances, so...