State v. Tuscaloosa County

• Decision Date: 18 February 1937
• Docket Number: 6 Div. 87.
• Parties: STATE v. TUSCALOOSA COUNTY et al.
• Court: Alabama Supreme Court

172 So. 892

233 Ala. 611

STATE v. TUSCALOOSA COUNTY et al.

6 Div. 87.

Supreme Court of Alabama

February 18, 1937

Rehearing Denied March 18, 1937

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Petition of the State for declaratory judgment against Tuscaloosa County and Board of Education of Tuscaloosa County. From a judgment for respondents, petitioner appeals.

Affirmed.

A.A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen for the State.

Foster Rice & Foster, of Tuscaloosa, for appellees.

BOULDIN Justice.

This is a proceeding by the State of Alabama v. Tuscaloosa County, Ala., et al., under the declaratory judgment statute (Gen.Acts 1935, p. 777) to determine whether the county is under legal obligation to reimburse the State for the expenses incurred in auditing the accounts, books, and records of the county superintendent of education and the county treasurer of school funds of Tuscaloosa County. The audit was made February 18 to March 30, 1935, covering a three-year period (July 1, 1929, to June 30, 1932) of the records examined.

Admittedly, the governing statute, to be construed in connection with related statutes, is section 749 of the Code of 1923, which reads:

"Expense account against county; how audited and paid.--Immediately after the completion of an examination of the several county officers, which shall be made at the same time that examinations are made for the state, the examiners making such examination shall make out an account, under oath, for and in the name of the state, against said county, for approximately the number of days engaged in the county examination for such county at the same rate of pay and expense allowed for state work, and file the same with the clerk of the board of revenue, court of county commissioners or courts of like jurisdiction of said county, and also file a duplicate thereof with the state auditor, and the state auditor shall thereupon draw his warrant upon the county treasurer for said amount, and the county treasurer, immediately upon receipt of the auditor's warrant, shall pay the said amount into the state treasury out of the first county funds coming into his possession."

The State, on appeal, insists that the county superintendent of education and county treasurer of school funds are "county officers," and because they are such the county is liable for the demands in question. They are styled "county" officials in the laws creating same. The county superintendent of education, as the office existed in 1901, is listed among county officers removable by impeachment under section 175 of the Constitution. See Petree et al. v. McMurray, 210 Ala. 639, 98 So. 782. Both are listed among "county officials" under the statute relating to bonds of county officials, etc. General Acts, Extra Sess., 1933, p. 203, § 2. That they are county officers in the sense that their official functions are confined to the territorial limits of the county is not questionable. But whether they are officers of the county, performing official functions for which counties exist, as local government entities, is another and different question. County Board of Education v. Slaughter, 230 Ala. 229, 160 So. 758.

But the solution of the question before us does not turn on whether these officers are to be classed as "county officers." Code, § 749, by its own terms, recognizes that county officers, strictly so-called, those performing official services for the county, as such, come into possession of funds belonging to the State, and also funds belonging to the county.

The powers and duties of examiners defined in the same chapter extend to examination of the books of "all county or local school or other district officers" charged with the duty of collecting or disbursing any funds "belonging to either the state or any county of the state." Code, § 736, subd. 2.

Examiners are required to make separate reports on their findings "in state matters" and "on county work." Code, § 746.

Section 749 does not contemplate refunding to the State the expense of examining records of "county officers," but only for the time engaged "in the county examination for such county." (Italics supplied.) What is meant by these words is the real question at issue.

A county is a local governmental subdivision with such governmental powers as are conferred by law. Pursuant to law, it has a governing body to whom is delegated certain legislative, executive, and judicial powers. Among these is the power to levy taxes for county purposes. The county is expressly declared a body corporate. Code, § 181. As a legal entity, it owns property, makes contracts, may sue and be sued.

The funds derived from taxes levied for county purposes belong to, are the property of, the county. The county purposes to which they are devoted are specially designated by law or by order of the governing body pursuant to law.

The custodian of county funds is a county treasurer, or county depository, named by the board of revenue, or other governing body.

Clearly enough on the examination of the books of any county officer having duties with reference to the collection and disbursement of these county funds, such portion of the examination as concerns the fidelity of the officer with regard to these funds would be a "county examination for such county."

The county superintendent of education and county treasurer of school funds are officers in another and different governmental set-up.

Our free school system in Alabama, in concept, and largely in legal structure, is the outgrowth of article 14 of the Constitution of 1901, beginning with the mandate: "The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years." Section 256, Constitution 1901.

"The supervision of the public schools shall be vested in a superintendent of education, whose powers, duties, and compensation shall be fixed by law." Section 262, Constitution.

To provide means for a public school system certain funds were specifically dedicated to that purpose, among them the proceeds of a 3-mill tax levy on all the assessable property of the State. Constitution, § 260.

The county was designated as the territorial unit in the allocation of such common school funds on the basis of the number of children of school age therein; with provision that, by some authority, a new apportionment should be made among the several schools in the county so as to provide, as nearly as practicable, school terms of equal duration in the several districts.

Following this lead the Legislature has, by a system of laws, found in the School Code of 1927 and...