County of Mobile v. Powers

103 Ala. 207 | Ala. | 1893

HEAD, J.

The controversy brings us to construe the act, “To dispose of the fine and forfeiture fund in Mobile county, and to provide for the payment of all claims, which are by law a charge against said fund.” — Acts 1890-91, p. 9. ’ The precise question presented is whether a claim which accrued after the passage of this act, in favor of the clerk of the city court of Mobile, which, without the act, would have been a proper claim against the fine and forfeiture fund, is now, by virtue of the act, payable out of tho general treasury, without regard to whether there are funds in the treasury to cover it, arising from fines and forfeitures. If the act'stopped with sections 1 and 2, no question could arise about it. They, in plain terms, abolish all distinction between the fine and forfeiture and general funds of the county, consolidate the two, and provide for the payment out of the consolidated fund of all claims, whether then existing or subsequently accruing, which, under existing law, were charges upon the fine and forfeiture fund. The controversy grows out of sections 3, 4 and 5 of the act.

When we use the term, “existing claims,” in this opinion, we will be understood to mean claims outstanding against the fine and forfeiture fund at the time of the passage of the act; and by “subsequently accruing claims, ” we will mean claims accruing subsequently thereto, which, under the former law, would have been charges upon the fine and forfeiture fund.

Sections 3 4 and 5, when carefully read, are seen to relate alone to the existing claims ; and the sole purpose of their insertion was to postpone the payment of such existing claims, in a way therein made known, operating, in effect, a qualification or proviso to the general provision of section 2, that all claims, existing and subsequently accruing, shall be paid out of the general treasury . To this end, the following provisional scheme and plan were adopted, viz. : That the existing claims shall be paid only when there shall be a surplus in the treasury of moneys arising from fines and forfeitures, after payment out of such moneys of the subsequently accruing claims; and when there shall be sucha surplus, or surpluses, arising from time to time, then the existing claims shall be paid therefrom according to specified priorities, until all shall have been paid. To facilitate this plan, it is provided (notwithstanding by virtue of the consolidation of the two funds under the first section there is but one fund in the treasury), that the treasurer shall keep a separate account, showing all moneys received into the treasury arising from fines and forfeitures, and all moneys paid out on the subsequently accruing claims, so as to be able at any time to ascertain when there is such a’surplus in the treasury, until all the existing claims shall have been paid. The salary of the judge of the city court, formerly a charge on the fine and forfeiture fund, shall not be considered in ascertaining the surpluses. All existing claims shall be registered within three months after the passage of the act, or they lose their priority of payment. This is a plain statement of the provisions of the act, and their meaning appears to us clear. Their effect is that all claims, whenever contracted, are payable out of the general consolidated fund, for there is but the one fund; there is no separation of the moneys in the treasury ; but as to the existing claims, they shall be paid,not generally, like other claims, but on a contingency, which is, that there is in the treasury an excess of moneys coming in from fines and forfeitures, over the amounts paid out on subsequently accruing claims; and then only to the extent of such excess — the excess bo be ascertained by the separate accounts the treasurer is required to keep. Whenever a sufficiency of these excesses shall have arisen in the treasury to cover all the existing claims, then sections 3, 4 and 5 of the act will have spent their force, and sections 1 and 2 will stand as the unqualified, enduring law for the government of the treasury. Now, it seems from all this too clear for doubt, that there was no intention to place any qualification or limitation whatever upon the payment, from the general consolidated treasury, of any claims as directed by section 2 of the act, except the •existing claims against the fine and forfeiture fund. Argument to the contrary is predicable alone of that expression in section 3, that the existing claims shall be . paid only when there shall be a surplus in the county treasury arising from said fund (fines and forfeitures) “after the payments out of the moneys coming from said fimd” of the subsequently accruing claims — the contentention being that subsequently accruing claims can only be paid when there are moneys in the treasury arising from fines and forfeitures sufficient to cover them. Construing the expression, above- quoted and emphasized, . in connection with section 2, and seeing how carefully, and with what minuteness of detail, the limitation upon . the payment of existing claims is defined, and seeing the expression used in the frame-work of that limitation, we . do not hesitate to declare that it does not mean literally that subsequently accruing claims shall be paid only out of fine and forfeiture moneys actually in the treasury. . It means simply that whenever it is shown by the separate account the treasurer is required to keep, that more funds have come in from fines and forfeitures than the amount which has been paid out on subsequently accruing claims, then the amount so paid out shall be refera- . ble tó the funds so received, as a means of ascertaining a . surplus, to the extent of which the existing claims may be paid. The postponement of. payment of the existing claims was the central thought in the legislative mind, and the terms used were but the formulation of a plan to carry that thought into effect. There was manifestly no purpose to otherwise limit section 2. We hold that plaintiff’s being a subsequently accruing claim, he was entitled to have it allowed and paid out of the general treasury, without regard to the existence therein of moneys arising from fines and forfeitures.

Affirmed.