83 So. 170 | Ala. | 1919
Lead Opinion
This proceeding originated in a petition for a writ of mandamus to require the depository of Henry county, the Bank of Henry, to pay out of a special, distinct fund, the road and bridge fund, in its hands, certain warrants of the county of Henry drawn against that particular fund. Subsequently, the appellant, the depository succeeding the Bank of Henry, was substituted as respondent. The agreed statement of facts affords the evidence presented to the trial court for its consideration and upon which its conclusion awarding the writ was rested. The several warrants designated in the petition were warrants contemplated by contracts made by the county of Henry, through its court of county commissioners, with several contractors to repair or construct public roads and bridges in the county.
On February 9, 1915, the county entered into a contract with J. G. Brown to build the Eufaula and Abbeville road; on the same date, with Watley Bros. Chambliss, to build the Abbeville and Marianna road; on March 25, 1915, with J. G. Brown, to build the Abbeville and Franklin road; on the same date, with J. G. Brown, to build the Abbeville and Clopton road; on April 6, 1915, with C. E. Simmons Son, to build the Columbia and Newton road, and with the Southern Bridge Company, to build certain steel bridges in Henry county. While these contracts bore an estimate of the probable amount of the obligation they each sought to impose upon the county, yet it appears from them that the actual amount of their obligation was to be dependent upon the work as done and as approved by the engineer, upon which the court of county commissioners should proceed to audit and allow the respective claims for the work done by the several contractors.
It appears from the agreed statement of facts that the services thus contemplated were performed according to the contracts, and that the claims for the respective sums stated in the warrants in question were audited and allowed by the court of county commissioners, thus disclosing conformity to the command of Code, § 146, which requires the audit and allowance of claims of the character here involved. Smith v. McCutchen,
It appears from the agreed statement of facts that these warrants were presented (unnecessarily, we think) to and registered by the county treasurer (Code, § 211), and that the records of that office were destroyed by fire in November, 1916. Code, § 151, provides:
"Claims against a county in which the records have been destroyed by fire are barred if not registered in the proper office of the county within twelve months."
The object of this requirement, and the bar made consequent upon the failure to observe its exaction, was to impose upon those holding allowed claims to register them in the proper office upon the sole condition that the records have been destroyed by fire. It may be quite doubtful whether this requirement had reference to registration with the county treasurer. It is not now necessary to determine that question. Under Code, § 147, the requirement is that —
"All claims passed upon and allowed, according to this section, must be entered in the order in which they were allowed, in a book kept for that purpose, and filed for future reference, within two weeks after the term at which such allowances were made."
Nothing to the contrary being shown, it must be assumed that the record required by section 147 was properly kept. If that record has not been destroyed, which fact is not shown, there remains a record that *403 precludes the possibility of the existence of the single condition upon which the exaction of Code, § 151, is rested. It results that the bar asserted as upon the failure of the holders of these warrants to register them within twelve months after the fire which destroyed the records of the county cannot avail to deny the petitioners the relief sought.
According to the agreed statement of facts, the contracts under which the warrants here involved were issued were entered into at the times respectively stated. In due course, the work thereunder having been done, the claims supporting these warrants were audited and allowed and the warrants issued in accordance with the direction of the court of county commissioners. The act approved September 15, 1915 (General Acts, 1915, pp. 348-350) abolished the office of county treasurer in Henry, among other counties, and created county depositories — contractees (Compton v. Marengo County Bank,
"The bank or banks so designated as depositories for county funds shall be charged with all the duties and subject to the same liabilities in so far as the safe-keeping and paying out of the funds of the several counties are concerned, as are now imposed by law upon county treasurers."
The provisions of section 6 of the act of 1915 emphasizes the effect thus accorded the quoted part of section 5.
As before indicated, the court of county commissioners exercised the authority conferred by section 215 of the Constitution to levy a special tax of one-fourth of one per centum, to raise a special road and bridge fund, which that body undertook to pledge to the payment of such annually maturing legal obligations of the county, assumed under the contracts heretofore mentioned, and issued interest-bearing warrants which were received by the contractors in payment for the work severally done by them under their respective contracts with the county. The pledges of the funds annually produced by the special tax levied for the particular purpose of affording a fund to meet the annually maturing obligations imposed by these contracts of the county were valid and binding when made (Board of Revenue v. Farson,
As between these several contractors, the rule of priority in payment out of the annually collected special fund, pledged to pay the claims as they became fixed in amount by the certificate of the engineer and audit and allowance by the county commissioners, was that established by the order in which these contracts were entered into. The provisions of Code, § 211, directing payment of warrants, drawn against general or special funds, in the order of their registration with the county treasurer, or the county depository at this time, are inapplicable, for that the pledge of special funds in these contracts impressed upon the amounts annually derived from the special levy operated to invest the contractors, or their successors, with an indefeasible right to be paid in the order in which their several pledges of the special fund were respectively given — in the order in which the several contracts were entered into.
Our conclusion accords with that prevailing in the court below, viz., that, under the peculiar circumstances resulting from the special levy stated and the pledge of its product to the satisfaction of the debts contracted by the county with these contractors, the time when or at which the county's indebtedness is to be computed with a view to determining the application of the restrictive provisions of section 224 of the Constitution was the respective dates of the several contracts by which the issuance of the warrants in question were authorized.
As we understand the record before this court, it appears that there are outstanding warrants chargeable against the $9,030.08 that are not owned by the petitioners, appellees. The holders of these warrants are not before the court in this cause, and would not at this stage be bound by any judicial action taken in this proceeding. In such circumstances, it would be improper to compel the depository to pay from the sum of $9,030.08 the full amount of warrants described in the order of the court, when it is possible, if not probable, that the holders of these outstanding and unrepresented warrants would be entitled to share, with all other warrants in that series, under their respective contracts, in the order of their dates, in the proportion they bear to the whole amount of the warrants, maturing in 1917, issued under a contract to which the warrants in question are respectively attributable for their authority.
The order awarding the writ of mandamus is, for this reason only, reversed. The proceeding is remanded that appropriate account may be taken of this factor before the payment of the warrants here involved is ordered to be made by the depository.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
Addendum
The substantive right of the appellee to the fund in question is conceded to be as the foregoing opinion defines it. The two matters now reargued were given due consideration on original review of the appeal. The right of the warrant holders to be paid — in their proper order and according to the preference established by the contracts mentioned — out of the special funds pledged to their orderly satisfaction in the manner prescribed in the contracts (a process that consisted with the law in effect at the time and that was observed in the issuance of the warrants), was not affected in any degree by the subsequent enactment of the law creating depositories; nor was the remedy by mandamus to enforce their right to be appropriately satisfied out of the pledged special fund subjected by the depository law to any condition not present when that law was enacted. It affirmatively appears from the agreed statement of facts that the claims in question were audited and allowed by the commissioners' court; warrants were ordered by the commissioners' court to be issued therefor by the judge of probate; and they were accordingly issued; all as the contracts provided. The warrants so issued *405
were as effectual a direction to the depository to pay as could be desired. Acts 1915, p. 349, first clause in section 5. Certainly, under these circumstances, no other demand upon the county body was required or could be exacted, unless the failure or refusal of the depository to pay gave rise to a further duty on the part of the warrant-holder. The decision in Parker v. Hubbard,
The application is denied.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.