50 Ala. 416 | Ala. | 1874
This is a suit instituted by the county treasurer of Barbour county, against the county of Barbour, on the 20th day of June, 1873, for the sum of two thousand dollars. The complaint contains two counts. There was a demurrer to each of these counts, which was overruled, and a trial by a jury on a plea to the merits. Upon a charge of the court, which was, in effect, a reaffirmance of the decision of the question raised by the demurrers, there was a verdict for the plaintiff in the court below, for two thousand dollars, and judgment for this sum, and costs. From this the county appeals, and here “ assigns as error the ruling on the demurrers, and the charge to the jury, which were excepted to.”
The facts stated in the complaint show, that the court of county commissioners of said county of Barbour, in the tax year 1871 and 1872, levied a tax on the property of the people of that county, for $20,000, and ordered the same to be assessed and collected by the assessor and collector of taxes in that county, as required by law; and a like tax was ordered to be assessed and collected for the tax year 1872 and 1873. These taxes were so levied to pay the interest on certain bonds issued by the county to pay railroad subscriptions to the Vicksburg & Brunswick Railroad Company, under an act of the legislature of this State authorizing such subscription of stock and the issuance of said bonds to pay the same. Pamph. Acts 1868, p. 514, No. 172; lb. p. 462, No. 139. These sums, thus levied, were collected by the tax-collector of said county of Barbour; but they were not paid over to the treasurer of said county, as other taxes for county purposes were required to be paid to him (Rev. Code, §§ 910, 926), but were paid over to Whitfield Clark, the “ fiscal agent ” of said county, appointed by said court of county commissioners, for the purpose of receiving and paying out the same. It is further alleged, that the plaintiff is entitled by law to five per cent, on each of the sums thus collected, and not paid over to him, as county treasurer aforesaid, which would amount to $2,000 ; that is, $1,000 for each of the years above said ; and in consequence of the failure of the court of county commissioners aforesaid to permit and direct the taxes aforesaid to be paid over to him, he is injured to the damage of $2,000, or the county owes him this sum, by reason of the facts above set out.
It is unquestionably true, that all rights of action must arise from matters of fact and matter of law combined. A good complaint, therefore, when analyzed, should state a syllogistic proposition, in which the matter of law is implied, or to be supplied by the court, and the matters of fact are stated in the pleading. Gould PI. §§ 4, 7. If the proposition of law applicable to the facts is false, or there is no proposition of law ap
In this case, as it presents itself to me, the proposition of law, supposed to be applicable to both counts, is the same. It is this : The county is bound by law to havfe the taxes levied by the court of county commissioners, for the purpose of paying the interest on its railroad bonds, on their collection by the tax-collector paid over to the county treasurer; and if this is not done, then the county becomes liable to the treasurer to pay him five per cent, on all the moneys thus collected, and not paid over to him, either as a debt for moneys in the hands of the county, held by its agents for the use of the county treasurer, or as damages for a failure to discharge a legal obligation to the treasurer, by which he is injured. The county, as a corporation, is only liable for damages arising from a failure to perform its duties, when the law imposes such liability, or for a debt which the law enables it to contract, and which it has actually contracted. Covington County v. Kinney, 45 Ala. 176; Montgomery County v. Barbour, 45 Ala. 237; Mitchell v. Tallapoosa County, 30 Ala. 130; Van Eppes v. Commissioners Court of Mobile, 25 Ala. 460; Barbour County v. Horn, 41 Ala. 114. The only liability undertaken by the county, on its railroad subscriptions, is its liability to pay its bonds issued under the act authorizing the subscription. The duty of providing the means for this purpose by taxation is imposed upon the court of county commissioners. Pamph. Acts 1868, p. 514, No. 172, §§ 7, 8, 9 et seq. Under this act, the courts of county commissioners, of the counties in which such bonds are issued, “ are vested with power to do any and all acts to carry out all the provisions of this act, which are not inconsistent with the act itself, and the laws of the State and the United States.” Ib. p. 517, § 12. Under this power, the court of county commissioners might appoint a “fiscal agent,” and direct the moneys to be raised to pay the interest on these railroad bonds to be paid to him, and not to the county treasurer.
But the county would not be liable to the plaintiff in the court below, even if this were otherwise. The commissioners’ court, by a failure to discharge a duty imposed upon them by law, could not render the county liable for their neglect, unless the law so declared. That court could be forced to do its duty by mandamus, if it failed or refused to do so. Marshall Co. v. Jackson Co. 36 Ala. 613. The court of’ county commissioners are only permitted, by the act above mentioned, to levy
The demurrer should have been sustained to both counts of the complaint. In failing to do this, the court erred. For this error, the judgment of the court is reversed, and the cause remanded.