70 So. 275 | Ala. | 1915
This action was brought to recover from the city of Demopolis the sum of $750, which it had collected out of the treasury of said county, the same being a portion of the special road tax of 21/2 mills collected by the said county under the latter clause of section 215 of our Constitution, and under the statutes adopted to give force and effect to same. The pleadings show that the tax money here used was raised by the levying and
“A void thing is no thing. It has no legal effect whatsoever, and no rights whatever can be obtained under it or grow out of
“The law in this state is well settled that the court of county-commissioners of a county, in auditing and allowing claims against the county, acts in an administrative capacity only, and that the allowance of a claim by such a court is prima facie evidence only of its correctness. When ‘a claim is allowed which is not legally and properly chargeable against the county, the commissioners’ court exceeds its authority, the allowance of the claim is void, and the county is not estopped from disputing its liability.’ — Commissioners’ Court v. Moore, 53 Ala. 25. In such a case, ‘if the funds are in the treasury of the county to pay the same, and the county treasurer should be proceeded against for a failure to pay on demand, it would be his duty to set up in defense the invalidity of the claim.’ — Commissioners’ Court v. Moore, supra. ‘If the record should show affirmatively that the court has allowed a claim not legally chargeable on the county, the allowance of which’ is in ‘excess of the authority with which the court is intrusted, the allowance would be void.’ * * *
“There appears to be no doubt about the proposition, so far as the laws of Alabama are concerned, that when a public officer collects money from a county, as' fees or compensation for services rendered by him, and to which fees or compensation he is not legally entitled, such county can maintain a suit for the recovery of the money so illegally obtained by him and recover the same. We can properly quote as applicable to the facts of the present case the following from the Supreme Court of Indiana: ‘The rule preventing the recovery of money voluntarily paid has no application under the facts in this case. As charged in the complaint, the claims were allowed, and the money paid, without legal authority for so doing. In view of the alleged facts, those claims were not only allowed in violation of law, but they were presented by the appellee, and the money of the county unlawfully received by him, and he is chargeable with knowledge of the illegal acts. It was not payment by the county. The latter, as the principal, had no part in the payment. It could not, as a public corporation, be.held to consent to the payment of, or expenditure of, the public money in defiance of law. Awarding to the appellee this money, under the alleged facts, was in a legal sense, equivalent to an unlawful appropriation of the
Some authorities are also found collected on page 424 (94 Am. St. Rep.) of the note to the case of N. O. & Northern R. R. Co. v. La. Construction Co., supra. Under one of the cases cited in said note, The Village of Ft. Edward v. Fish, 156 N. Y. 363, 50 N. E. 973, it was said in the opinion that the doctrine of voluntary payment “applies to individuals who have power to do as they wish with their own, but it does not' apply to an agent of a municipal corporation who pays out its money without power, to one who accepts it with knowledge. * * * Such a payment is not voluntarily made by the corporation, but by its agent in excess of his authority and in defiance of its rights.”
There is no room here for the appellant to invoke the rule as to the discretionary power of the court of county commissioners over the public roads of the county or funds expended for that purpose. As to this special road tax the Constitution was explicit, and under the decisions of this court they were without authority to appropriate this fund, or any portion thereof, to the city of Demopolis for its streets. Acting, therefore, in excess of their authority, the order made was void, and the payment of the money amounted to a misappropriation of the funds of the county and the authorities herein cited clearly show a right of recovery therefor. The briefs of counsel have treated the rulings of the court below on the pleadings as properly pre-' senting the meritorious questions here involved on which to base our determination of the case, and we have so considered the same, without any specific reference to the particular pleadings shown. Our conclusion is that the judgment of the court below be affirmed, which is accordingly done.
Affirmed.