Weakley v. Henry

• Citation: 204 Ala. 463,86 So. 46
• Decision Date: 30 June 1920
• Docket Number: 6 Div. 108
• Parties: WEAKLEY et al. v. HENRY, County Treasurer
• Court: Supreme Court of Alabama

86 So. 46

204 Ala. 463

WEAKLEY et al. v. HENRY, County Treasurer

6 Div. 108

Supreme Court of Alabama

June 30, 1920

Appeal from Circuit Court, Jefferson County; Dan A. Green, Judge.

John B Weakley and Eugene Fies sought by motion for summary judgment and by petition for mandamus to compel M.V. Henry, as Treasurer of Jefferson County, to pay a warrant issued to them by the county board. From an order denying their motion for a summary judgment, as well as for a mandamus petitioners appeal. Affirmed.

W.K Terry, Johnston & Cocke, and Gibson & Davis, all of Birmingham, for appellants.

Joseph R. Tate, James G. Davis, and John C. Morrow, all of Birmingham, for appellee.

THOMAS J.

The petition or motion is to compel the payment of the warrant drawn by the board of revenue of Jefferson county on the treasurer of that county, as compensation and commissions for services rendered by petitioners in negotiating the sale of $500,000 of the county road bonds. The question for decision was made by two separate proceedings, which, by agreement of the parties, have been consolidated, since the relief sought is identical.

The one petition seeks madamus against said treasurer, commanding him to show cause why a peremptory writ should not be issued commanding him to pay petitioners on presentation of their warrant; the other seeks summary judgment against that official, pursuant to the provisions of Code 1907, § 5938. That statutory provision for such judgments against county treasurers and sureties for failure to pay "allowed claims" is as follows:

"If any county treasurer fail, on demand, and without good excuse, to pay an allowed claim against the county, when there are funds in the treasury to pay the same, judgment may be obtained against him and his sureties, or any or either of them, on five days' notice, on motion in the circuit court of the county, in the name of the party to whom the claim is payable, his legal representatives, or assigns, for the amount of the claim, with interest from the time of the demand, and ten per cent. damages and costs."

The treasurer bases his refusal on the following grounds:

"That the $500,000, face value, of bonds referred to in the petition, bear interest at the rate of 5 per centum per annum, and that by virtue of section 170 of the Code of Alabama (1907), the same may not be sold for less than their face value;" that he "is advised and therefore avers that the effect of the payment of the commission upon the face of the warrant presented to respondent for payment, and described in the petition, would make the sale of said bonds net the county of Jefferson approximately 90 per centum in lieu of face value thereof as required by law;" and that "for divers other reasons appearing upon the record of said proceeding set out in the petition *** respondent says that said warrant was illegal, null and void."

The question as to the proper remedy available to petitioners is not presented in the answer of respondent or by demurrer, but both remedies being sought concurrently and by agreement of counsel considered together, a decision of the question is made desirable.

The resolution of allowance of the claim by the board of revenue required its payment "out of moneys in the road construction fund in the treasury not otherwise appropriated," and the warrant issued and delivered to petitioners was pursuant to this resolution. Claims of counties that are subject to allowance by the board of revenue as an "allowed claim" against the county are held within the purview of Code, § 5938. Compton v. Marengo County Bank, 82 So. 159; Brown, Treas., v. Gay-Padgett, 186 Ala. 561, 65 So. 333; Norwood v. Goldsmith, 162 Ala. 171. 50 So. 394; Hines v. Salter, 154 Ala. 248, 45 So. 587; Arrington v. Van Houton, 44 Ala. 284. Claims that are a fixed charge by law against the county--as a special claim out of a special fund, and not required to be "allowed" by boards of revenue--may be compelled of payment by mandamus. Farson, Son & Co. v. Bird, Treas., 197 Ala. 384. 72 So. 550: Wyker v. Francis, 120 Ala. 509, 24 So. 895; Sessions v. Boykin, 78 Ala. 328.

In Farson v. Bird, Treas., supra, the application for mandamus was to compel the treasurer of Shelby county to pay certain past-due county warrants held by petitioner, for the construction of the courthouse and which were required to be paid from a special fund; held that mandamus would lie to compel a treasurer to pay a special claim out of a special fund, and in some cases it will lie although an action might be maintained against him for such failure.

It follows from these authorities that, where a claim in and of itself is a claim out of a specific fund and not subject to allowance by the board of revenue, mandamus will lie to enforce its payment in a proper case; that is to say, mandamus will lie against the county treasurer only where the claim is such that by operation of law it becomes a claim under certain conditions against a specific fund without allowance by the board of revenue. Lovelady v. Copeland, 198 Ala. 625, 628, 73 So. 948. If movants have an "allowed claim" against Jefferson county that is denied by its treasurer, judgment may be rendered under the provisions of Code, § 5938.

We are brought to a decision of the real question raised by the motion of Weakley and Fies, and the answer of respondent treasurer. Is the warrant for the payment of compensation or commission to petitioners for the sale of the bonds a lawful and valid claim against the county? A provision of the statute (Code, § 170) in respect to this is:

"The denominations of the bonds, the time for which the same shall run, the place of payment, and the rate of interest to be paid on the same, shall be fixed by the court of county commissioners or board of revenue issuing the same, but no bonds issued under the provisions of this article, shall bear a greater rate of interest than five per cent. per annum, and the same shall not be sold for less than face value."

This section of the statute finds its place in article 8 of chapter 11 of the Code (volume 1, p, 278), "County Bonds; Election as to Issue," providing for ordering an election for issuing bonds for public improvement, notice of election, holding the same, canvassing the returns, contest, requiring the record of the returning board to be recorded in the minutes of the board of revenue or court of county commissioners of the county in which the same is held, the issuance of bonds "by the court of county commissioners or board of revenue *** in the amount and for the purposes mentioned in the notice of said election," declaring that bonds so issued shall be "exempt from state, county and municipal taxation, and that the same shall have all the properties and protections of commercial paper." The subsequent sections of said article 8 declare that all bonds issued under authority of this article shall be signed by the probate judge and countersigned by the treasurer of the county in which the same are issued, make a like provision for interest coupons, declare that any irregularity in proceedings to authorize the issue does not invalidate tho bonds issued, and "where no provisions are otherwise made herein, the general election laws of the state then in existence with regard to all notice, qualification of voters, official acts," etc., shall govern. This article (8) provides a simple, yet comprehensive, system for public improvements, for the purpose of constructing, or paying debts created for constructing, public buildings, schoolhouses, and public roads, bridges, and such other purposes as are authorized by law. Code, § 158. The duty of issuing authorized bonds is placed on the court of county commissioners or board of revenue of the county by section 168 of the Code, and such bonds shall not "bear a greater rate of interest than five per cent. per annum, and the same shall not be sold for less than face value." Code, § 170. The Constitution has provided that the Legislature should have authority to pass general laws authorizing counties, cities, and other political subdivisions of counties to "issue bonds," after due authority by a majority vote by ballot of the qualified voters of such county, city, or other political subdivision of a county, voting upon the proposition. Const. § 222.

The right and duty to "issue" the bonds placed by statute on courts of county commissioners or boards of revenue was that of issue and sale in exact conformance to and for the statutory purposes. For municipal corporations may exercise only the powers (1) granted in express terms; (2) those necessarily implied in or incident to the powers expressly conferred; (3) and those indispensably necessary to the accomplishment of the declared objects and purposes of the municipality. McCulloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579; Stokes v. City of Montgomery, 82 So. 663, 665; Ex parte Selma, etc., 45 Ala. 696, 6 Am.Rep. 722; State v. Street, 117 Ala. 203, 211, 23 So. 807; Dallas County v. Dillard, 156 Ala. 354, 356, 47 So. 135, 18 L.R.A. (N.S.) 884; Kumpe v. Bynum, 158 Ala. 311, 48 So. 55; State v. Lincoln County, 18 Neb. 283, 25 N.W. 91; Lancaster v. Green, 54 Neb. 98, 74 N.W. 430.

Petitioners aver that on the 29th of December, 1919, the board of revenue of Jefferson county ordered an election to be held in said county for the purpose of submitting to the qualified electors of that county the proposition, to wit:

"Shall the county of Jefferson, Alabama, issue bonds to the amount of $5,000,000, bearing the rate of five per centum per annum, for the purpose of constructing public roads in said county?"

--which was authorized as shown by the exhibit of the canvass of the votes at the election held for such authorization. Though...