47 So. 199 | Ala. | 1908
— This is a proceeding by mandamus to compel the State Auditor to- draw his warrant on the State Treasurer for an amount alleged to be due the plaintiff and the tax officers of Mobile county for fees and costs earned in and about the assessment and sale of certain lands for taxes in said county; the lands having been purchased by the state at the tax sales, and subsequently sold by the Auditor at private sale to the State Land Company, a private corporation, for a gross sum fixed by the Auditor and Treasurer and approved by the Governor. The city court awarded the peremptory mandamus, commanding the respondent to draw his warrant on the Treasurer, not for the amount demanded by the petitioner, but for a considerably less-sum. From the- judgment the respondent appeals.
It is insisted by the respondent (appellant), and conceded by the petitioner, that the sale of the lands was-made under an act of the General Assembly approved February 15, 1899 (Gen. Acts 1898-99, p. 120). This act is assailed by the respondent as containing more .than one subject, and therefore as having been enacted in violation of section 2 of article 4 of the Constitution of 1875, which provided that “each law shall contain
Chapter 110 of the Code contains many sections, all :of which relate to the subject of taxation. This chapter comprises our system of laws governing taxation. Section 4100 is embraced in said chapter; and, on the considerations adverted to above, section 4 of the act of February 15, 1899 (Laws 1898-99, p. 121), takes the place of that section in the Code, and must be construed with the other sections in chapter 110. —United States v. Freeman, 44 U. S. 556, 11 L. Ed. 724, 727; State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. A. 312, 322; Black on Interpretation of Laws, 206. Section 4100 contained no provision in respect to the payment of costs and fees. Neither does the act under consideration. Section 4104 of the Code, however, which also forms a part of chapter 110, covers the subject-matter of fees ..and costs, and prescribes the manner of their payment. There is nothing in the act which is inconsistent with or repugnant to this section. Therefore it is not repealed by the act. —Taylor v. Dahn, 6 Ind. App. 672, 34 N. E.
Section 1 of the act is in this language: “That the Auditor shall have prepared a suitable record, in which shall be entered a description of all real estate bid in by the state at tax sale; with the amount of taxes due the state and county, and the. costs due officers, the date when such lands were sold, and when two years shall have elapsed from the date of sale such portions of such-real estate as have not been redeemed shall be subject to sale by the state at private sale,, and the Auditor, with the approval of the Governor, ma.y sell the same at a price fixed by the Auditor and Treasurer, and approved by the Governor.” Section 1101 ■ provides: “When lands bid in by the state have been sold by the state, under any of the provisions of this chapter, the Auditor shall draw his warrant on the Treasurer in favor of the judge of probate of the county in which the lands lie,. for the county and school taxes, and the fees and costs, due to the different officers of the* county, specifying each separately, and if the same cannot be ascertained from the records and papers in his office, the judge of probate, on notice by the Auditor of such redemption or sale, must certify the same to him; and the judge of probate, upon the collection of such warrant, shall pay the same over to the officer entitled thereto, or- authorized by law to receive the same.”
“The duties which will be enforced by mandamus must be such as are clearly and -peremptorily enjoined by law” (26 Cyc. 162,'b), and the-petition must show-a clear right to the - performance of the act or. duty de
It is not made to appear that any appropriation has been made for the payment of fees and costs, and it cannot be doubted that the only funds out of which
Let the judgment of the lower court be reversed, and one be here rendered, dismissing the petition.
Reverse and rendered.