State v. Goldsmith

• Decision Date: 30 June 1909
• Parties: STATE EX REL. NORWOOD v. GOLDSMITH, COUNTY TREASURER.
• Court: Alabama Supreme Court

50 So. 394

162 Ala. 171

STATE EX REL. NORWOOD v. GOLDSMITH, COUNTY TREASURER.

Supreme Court of Alabama

June 30, 1909

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Mandamus by the State, on relation of Joseph Norwood, against Robert L. Goldsmith, as Treasurer of Lowndes County. From an order refusing to grant a rule nisi, relator appeals. Affirmed.

Mayfield J., dissenting.

Troy Watts & Letcher, for appellant.

Marks &amp Sayre, for appellee.

SIMPSON J.

This is an appeal from an order of the judge of the city court of Montgomery, refusing to grant a rule nisi on an application for a writ of mandamus to compel appellee to pay a warrant issued by the board of revenue of Lowndes county in favor of the relator.

On August 2, 1907, the Legislature enacted "An act for the improvement of the public roads of Lowndes county." Said act creates the office of supervisor of roads, provides for his election and salary, also provides for overseers, their salary, etc., and provides for the levy of an annual tax of 25 cents on each $100, etc. Loc. Acts 1907, p. 684. The petition alleges that petitioner paid said tax for the years 1907 and 1908, amounting to $289.08, under protest; that said act is unconstitutional; that he filed with the board of revenue of said county a petition setting up the unconstitutionality of said act; that said board allowed his claim and issued to him a warrant upon the treasurer of said county for said sum of money, "to be paid out of the moneys in the treasury created by the collection of such taxes"; that he presented said warrant to said treasurer, and he refused to pay the same, although he had in his hands a sufficient amount of the funds created by the collection of such taxes to satisfy the same.

In order to authorize a resort to this summary process to enforce the refunding of taxes which have been paid into the treasury, it is evident that resort must be had to statutory authority. The petitioner alleges that his application to the board of revenue for said warrant was "by virtue of article 16, chapter 45, Code of 1907." The first section of that article (section 2340) provides that "any person * * * who, through a mistake, or error, in the assessment or collection of taxes has paid to the county tax collector money that was not due from him for taxes, may file a petition in the court of county commissioners, asking that a warrant be drawn," etc. It is evident that this section refers merely to cases where there has been some clerical mistake or error in the assessment or collection of taxes, and was not intended to clothe the county commissioners or board of revenue with the judicial function of passing upon the validity of an act of the Legislature.

This court has held that "the audit and allowance of claims against the county is the exercise of administrative or executive, not of judicial, power." Jeffersonian Pub. Co. v. Hilliard, 105 Ala. 578, 17 So. 112; State ex rel., etc., v. Rogers et al., 107 Ala. 444, 456, 19 So. 909, 32 L. R. A. 520; Com'rs' Court v. Moore, 53 Ala. 25, 27. The Legislature subsequently provided for cases where the payment of taxes had been made "under mistake of law, or fact, upon any illegal tax assessment made under color of law," and very properly provided that "the same shall be recoverable by appropriate proceedings at law, or in equity, against the proper parties, or their successors." Gen. Acts 1907, p. 639; section 2345, Code 1907.

It was certainly proper that so serious a matter as the constitutionality of an act of the Legislature should be referred to the adjudication of a duly constituted court. This the Legislature has done. The judge of the city court committed no error in refusing to grant the rule nisi, and his judgment is affirmed.

Affirmed.

DOWDELL, C.J., and ANDERSON, DENSON and SAYRE, JJ., concur.

MAYFIELD J. (dissenting).

The case made by the relator is as follows: This is an appeal from an order of Hon. Armstead Brown, associate judge of the city court of Montgomery, refusing a rule nisi on an application for mandamus to compel appellee to pay a warrant issued by the board of revenue of Lowndes county in favor of the relator. The warrant, for the sum of $289.08, shows on its face that said amount was allowed relator on account of his having paid same as special road taxes for years 1907 and 1908 under color of an act (Loc. Laws 1907, p. 684), that said act is unconstitutional, and that said amount is to be paid out of moneys in the treasury created by the collection of said tax.

The only question which arises is the constitutionality of the act, entitled "An act for the improvement of public roads in Lowndes county," approved August 2, 1907. By said act the Legislature levied a special annual tax of one-fourth of 1 per centum on all property in the county "assessed for taxation and subject to taxation under the general laws of the state to be assessed and collected in the same manner as other taxes for county purposes are assessed and collected"; but the act further provided that "the tax collector * * * shall include such tax of twenty-five cents on the hundred dollars in the taxes collected by him for the year of 1907," notwithstanding that under the existing provisions of the general law the assessment of taxes for that year had been made prior to the passage of the act. The tax so levied was collected with other taxes for the years 1907 and 1908. Relator owned property in the county subject to taxation under the general laws, and was forced to pay and did pay said special tax under protest, and afterwards on the 8th day of February 1909, in accordance with article 16, c. 45, Code of 1907, filed with the said board of revenue a petition setting up the unconstitutionality of the act and praying that all amounts paid by him under color thereof be returned. In addition thereto,...