State v. Board of Revenue of Jefferson County

• Decision Date: 17 February 1911
• Citation: 172 Ala. 190,55 So. 179
• Parties: STATE EX REL. ELLIS v. BOARD OF REVENUE OF JEFFERSON COUNTY ET AL.
• Court: Alabama Supreme Court

55 So. 179

172 Ala. 190

STATE EX REL. ELLIS v. BOARD OF REVENUE OF JEFFERSON COUNTY ET AL.

Supreme Court of Alabama

February 17, 1911

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Mandamus by the State, on the relation of C. C. Ellis, Jr., against the Board of Revenue of Jefferson County and others. Judgment for respondents, and relator appeals. Affirmed.

John S Kennedy, for appellant.

John H Miller and W. K. Terry, for appellees.

MAYFIELD J.

Relator is a justice of the peace for precinct 9 in Jefferson county. In his court, as such justice, a great number of civil suits were brought against road defaulters. These suits were brought, in the name of the county, under local acts for that county (section 19, Local Laws, Jefferson County, p. 741). This section corresponds to, or is a substitute for, section 5808 of the Civil Code of 1907. The county failed in a number of these suits, and in others, in which it succeeded execution was issued against the defendants, and returned "No property found," whereupon judgments were rendered against the county for the costs. In this latter class of cases, it is insisted that the county became liable for the costs. Under the view we take of the case, it is not necessary nor proper that we should now pass upon this question.

This justice made out an itemized statement of these judgments for costs against the county, and presented it to the board of revenue of Jefferson county, demanding that the board issue a warrant on the county treasurer for the amount, with directions that payment be made to the justice. The board disallowed the claim in toto, and declined to issue or order issued a warrant for the amount, or any part of the claim, and duly recorded such refusal upon the minutes of the board. Thereupon the relator applied to the judges of the circuit court for Jefferson county for a writ of mandamus to the said board, commanding them to issue, or order to be issued, a warrant upon the county treasurer for the payment of the amount of said claim. A demurrer was filed to the relator's petition for the writ, and was sustained by the circuit court. The relator declined to plead further, and suffered judgment to be rendered against him. From this judgment, he appeals to this court.

Relator has mistaken his remedy. County boards, such as commissioners' courts or boards of revenue, may be compelled by mandamus to act upon claims against the county presented to them for allowance (that is, they may by this writ be compelled to act--to allow or to disallow); but they cannot by such writ be directed which of the two they shall do, if the board has any discretion, judgment, or choice in passing upon such questions. Spelling on Inj. and Extra. Rem. vol. 2, p. 1288; Portwood's Case, 52 Miss. 523; People v. French, 24 Hun (N. Y.) 263; People v. Board of Sup'rs of Oneida County, 24 Hun (N. Y.) 413; People v. Board of Sup'rs of Livingston County, 26 Barb. (N. Y.) 118; Chase v. Blackstone Canal Co., 10 Pick. (Mass.) 244.

After the court or board has allowed such claim, the probate judge, or other proper officer or agent, may be compelled in proper cases to issue the warrant; but if the claim is disallowed such officer, of course, is not authorized to issue the warrant. Code, § 146; Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 578, 17 So. 112. In this case it is said: "The court of county commissioners is a court of record, of peculiar constitution. It is clothed with large powers relating to the internal government and affairs of the county, some of which are in their nature legislative, some judicial, and others administrative or executive. The court has authority 'to examine, settle, and allow all accounts and claims chargeable against the county.' Code, § 826 (now section 3313). Such claims do not become the subject of suit against the county, until they have been presented to the court of county commissioners, and disallowed or reduced by the court, and the reduction refused by the claimant. Code, § 2574 (now section 2472). When the court has audited and allowed a claim against a county, it is the duty of the judge of probate, the keeper of the records of the court, to 'give the claimant a warrant on the treasury for the amount so allowed.' Code, § 901 (now section 146)."

In the case of Dale County v. Gunter, 46 Ala. 135, it was first ruled (and the ruling has been many times followed) that: "If a claim is given against a county by statute, and no mode is prescribed for its payment, then it must be presented for allowance like other claims, and paid out of the county treasury in the usual way, by a warrant of the judge of probate. If such claim, when presented, is rejected, or not allowed in full, then it may be collected by suit against the county, as other claims are collected that have been presented and rejected, or allowed only in part. But, on the contrary, if the statute by which the claim is given prescribed the way in which the claim is to be collected, and how the means are to be obtained by which it is to be paid, then the claim must be enforced and paid in the mode and manner provided, and in no other way."

If the costs in cases against road defaulters, such as relator exhibits in this case, are lawful claims against the county the statute has fixed no specific mode for their collection and payment; hence they should be presented, and allowed or disallowed, as are other claims or demands against the county; and, if disallowed, suit should be brought as for other disallowed claims. Probably claims against counties, the nearest like those in question, which have been considered by ...