State v. Board of Revenue & Road Com'rs of Mobile County

• Decision Date: 17 April 1913
• Citation: 180 Ala. 514,61 So. 814
• Parties: STATE ex rel. CITY OF MOBILE v. BOARD OF REVENUE & ROAD COM'RS OF MOBILE COUNTY et al.
• Court: Alabama Supreme Court

61 So. 814

180 Ala. 514

STATE ex rel. CITY OF MOBILE v. BOARD OF REVENUE & ROAD COM'RS OF MOBILE COUNTY et al.

Supreme Court of Alabama

April 17, 1913

Appeal from City Court of Mobile; O.J. Semmes, Judge.

Mandamus by the State on the relation of the City of Mobile against the Board of Revenue and Road Commissioners of Mobile County and others. Judgment sustaining demurrer to the petition, and petitioner appeals. Affirmed.

Five separate petitions were filed for a writ of mandamus against the board of revenue and road commissioners of Mobile county. In cases numbered 738, 739, and 740 the petitioner seeks to compel the respondent to cause warrants to be issued upon the treasurer of Mobile county for the payment of certain sums of money alleged to be due petitioner under and by virtue of three several acts of the Legislature. These acts respectively, provide that the city of Mobile shall cause to be kept an accurate and true account, first, of the amounts annually expended (beginning with the dates of the acts) in opening, improving, and maintaining the drains and streets of the city; second, in caring for the inmates of the city hospital; and, third, of the number of admissions into the city pesthouse. They each conclude with this language "It shall be the duty of the board of revenue and road commissioners, after an examination of said accounts, and upon finding the same correct, to pay (one-fourth thereof as to drains and streets, and one-half thereof as to hospital and pesthouse) out of the county treasury." These three cases above named deal with the period down to November 30 1908, and the petitions allege that the accrued accounts down to that date had been examined by the board through an expert accountant employed for that purpose, who made his written report to the board in February, 1909, finding the city's account correct to the extent of ascertaining an aggregate pro ratum for the city of about $43,000. In cases numbered 741 and 742 it is alleged that the city had kept the several accounts required from January, 1909, to January, 1912, but that the board has neglected and failed to examine and audit same, and the prayer is that it be compelled to do so.

Respondents demurred to the petitions in Nos. 738, 739, and 740 on numerous grounds, among others, the following: (D) Because it does not appear from the said petition that the said claim of the city of Mobile was itemized and sworn to by the said city of Mobile, or some person in its behalf having personal knowledge of the fact as required by section 147 of the Code. (F) Because it is not alleged in said petition that the board of revenue and road commissioners of said county had examined the said account and found the same to be correct. (J) Because there could be no legal authority for the issuance of the warrant upon the treasury of Mobile county until said claim was passed and allowed by the board of revenue and road commissioners of Mobile county, and it is not alleged in said petition that the said claim has been so passed and allowed. (N) It cannot be definitely ascertained from the said petition what is the just and true amount expended by the city of Mobile in maintaining, opening, widening, cleaning and repairing the drains in said city, and in repairing, cleaning, and maintaining the unpaved streets of said city during each or any one of said years. (R) Because it appears that from the said allegations of the said petitions that the petitioner's only remedy is by mandamus either to compel these respondents to audit and pass upon said claims, or by mandamus against the person whose ministerial duty it is to issue a warrant, if said claim has been audited and allowed; while, on the other hand, the applicant has a complete and adequate remedy at law for the collection of the same, if the same is just and has been rejected.

There were demurrers also to the petition in numbers 741 and 742, on these, among other grounds: (1) Because it does not appear from the said petition that the city of Mobile presented the said accounts to the board of revenue and road commissioners annually for such examination. (3) Because it does not appear from said petition that any demand has ever been made upon the board of revenue or road commissioners to examine said account, or that they have ever been offered or afforded the opportunity to do so.

The court sustained the demurrers to the several petitions, and petitioner appeals.

B. Boykin Boone and Stevens, Lyons & Dean, all of Mobile, for appellant.

Gregory L. & H.T. Smith and Sullivan & Stallworth, all of Mobile, for appellees.

SOMERVILLE J.

With respect to the obligations imposed upon the board of revenue of Mobile county by the several special acts referred to, it is the theory of petitioner that the duty of...