Jackson County v. Derrick

117 Ala. 348 | Ala. | 1897

BRIOKELL, C. J.

The case is an appeal from a decree of the court-of chancery, sustaining demurrers and dismissing for want of equity, an original bill for relief, in which the appellant was the party complainant. The principal purpose of the bill is, to compel the sureties on successive bonds of a deceased county treasurer, to an accounting of the fine and forfeiture fund, the principal had received, and to the payment of such parts thereof as he had misappropriated. The misappropriation consisting in the application of the fund to the payment of claims which were not legally chargeable upon it, and in the payment more than once, and in the overpayment of other claims which in their nature and character were chargeable upon and payable from the fund.

The argument chiefly pressed by the counsel for the appellees, in support of the decree dismissing the bill for want of equity, rests upon the proposition that a county has not in and to the fine and forfeiture fund, such right and interest, as entitles it to sue a county treasurer for its misappropriation — that the right of suit or of action resides exclusively in the State, or in claimants of the fund to whose use the statutes appropri’ate it, and who may be disappointed by the official delinquency.

The general statute now devotes the fund' primarily, to the payment of the costs and fees attending the administration of the criminal law. The local statute prevailing in the county of Jackson, as will appear hereafter, in some particulars varies from the general statute, while it devotes the fund to like uses to which it is devoted by that statute ; but it works no change in the duty and liability of the county treasurer in respect to the fund, nor in the ownership of the fund.

The fund had passed into the county treasury; there was no other depositary of it, and upon the treasurer devolved the duty of keeping and disbursing it according to law. Consistently with the allegations of the bill, the misappropriation imputed to the treasurer had not diminished the fund to such an extent that it was insufficient to satisfy all outstanding claims upon it, if any such claims there were. And if such claims existed, a misappropriation, nor the waste or conversion of the fund by the treasurer would not have furnished the claimants a cause of action. The duties of the treasurer are prescribed and carefully enumerated by the statute, (Code of 1886, § 915; Code of 1896, § 1429.) The greater part of these duties are owing to the public, as represented by the county, and are readily separable and distinguishable from the duties imposed for the benefit of individuals, and owing them peculiarly. The duty to individuals, as it may be summarized, is the' payment from funds in the treasury of claims against the county, and of claims on the fine and forfeiture fund, on presentation, in the order and-upon the conditions of payment, the statutes may prescribe. A misappropriation, or the waste or conversion of funds coming to the possession of the- treasurer, would not avoid or excuse the neglect or non-performance of the duty, and is not the injury which entitles the individual having claims against the county, or claims upon the fine and forfeiture fund, to maintain suits because of the official delinquency — it is the non-payment of the claims on presentation, in the order and upon the terms and conditions of payment, the statutes may prescribe, funds haying come to the possession of the treasurer properly applicable in payment,- which constitutes the official liability, and furnishes each disappointed claimant a cause of action. In Mechem on Public Officers, § 597, it is said: “The liability of a public officer to an individual is based upon and is co-extensive with his duty to the individual or the public. If to the one or the other he owes no duty, to that one he can incur no liability.” In the succeeding section it is said: “The first question for determination, therefore, in considering the liability of a public officer to private action, is whether that officer owes any duty to the individual complaining. If he does not, then the individual has no right of action, even though he may have been injured by the action or non-action of the officer.” The safe-keeping of the moneys of the county, and their disbursement according to law, is the primary duty of the county treasurer — a duty owing to the public, and not to individuals. If there is a breach of the duty, followed by a loss of the moneys, whether the loss results from misappropriation, or from waste, or conversion, the title to and ownership of the funds' determines the right of suit or of action. If title and ownership resides in the State-, the county may not sue — and conversely, if title and ownership resides in the county, the State may not sue.—People v. Ingersoll, 58 N. Y. 1. This brings us to a consideration of the remaining point, on which the ai’gument ixi sxxppox’t of the decree dismissing the bill depends.

The coxxstituents of the fuxxd are fines — the pecuniaiy punislxxnent of misdemeaixors, the mulcts or penalties ixnposed for contempts by courts or judicial officers, and the penalties ixxflicted oxx non-attending jurors in obedience to suxnxnons ; forfeitures — the adjudged breaches of recogxiizances of bail taken in criminal cases, and of recognizaxices of witnesses for the State, and the penalties adjudged against such witnesses for neglect to obey the mandates of subpcexxas issixed to and served xxpon them. Having these constituexits, distinguished, from all other public fuxids or revenues by the sources from which it is derived, the fund has existed from the earliest pexiod of legislatioxi.—Scruggs v. Underwood, 54 Ala. 186 ; State v. Coleman, 73 Ala. 550; Herr v. Seymour, 76 Ala. 273; Sessions v. Boykin, 78 Ala. 328. Issuing from violations of the criminal law7, and from the breaches of obligations and duties to the State, all of right, title and interest in and to the fund and the consequent capacity to maintain actions or suits, of which it may be the subject matter, could not, in the absence of legislation providing otherwise, reside elsewhere than in the State.

The fund, originally, was payable into the territorial treasury, not impressed with or devoted to any particular uses or purposes, subject, as were all'other-public funds or revenues, to legislative appropriation, and the territorial auditor of public accounts was authorized to maintain suits against delinquent officers charged with duty in respect to it. — Laws of Ala., 214, § 44; 216, § 56; 864, § 44; 365, §§ 1-6; 367, §§ 1-3. In 1815, an act was passed, as expressed on its face, “for the purpose of providing a fund to pay county expenses, ” declaring among other things, that thereafter, all fines and forfeitures should be paid into the treasury of the county in which they were incurred, “and not into the territorial treasury.” The clerks of the courts were required to make to the county treasurer, the reports and accounts of the fund, they had been required to make to-the territorial auditor of public accounts, and to pay him the money when collected, at the same time, and in the same manner, they had been required to make payment into the territorial treasury; and the county treasurer was authorized to maintain suits against officers delinquent in the performance of duty in regard to the fund. Laws of Ala., 672, § 3. Legislative power over public revenue, from whatever source derived, .no element of contract intervening, compelling a particular application or appropriation, is unrestrained by constitutional limitation. From the very nature of the fine and forfeiture fund, because of the sources from which" it is derived, it is particularly true that legislative dominion over it is absolute.—State v. Stone, 69 Ala. 206 ; Sessions v. Boykin, 78 Ala. 328 ; Harold v. Herrington, 95 Ala. 395. Originally, a fund payable only into the general public treasury, receivable only by the officers charged with duties in respect to the territorial government, the legislation to which we are referring, converted it into a county fund, payable into the county treasury, charging the county treasurer with the duty, and clothing him with the authority in respect to it, which devolved on the territorial auditor of public funds, while it pertained to tlie general, public treasury. And it must be observed that it passed into the county treasury as it had existed in the territorial treasury, unimpressed by a devotion to any particular uses or purposes, not distinguished from other county revenue, subject to application or appropriation to any and all county uses. After the formation of the State government, the enactment was introduced into subsequent revisions of the statutes without other change than in verbiage — the substitution of the word State for territory and territorial (Aik. Dig. 200, § 10 ; Clay’s Dig. 249, § 10) ; remaining of force, the general law governing the fund and its administration, until the adoption of the Code of 1852, though there was much of local legislation in respect to the fund, prevailing in different counties.

The Code of 1852 (§ 3619), declared : “All fines-and forfeitures in State cases, unless otherwise provided, go to the county in which the indictment was found, and judgment is entered for the State for the use of the county.” With changes of phraseology not now,material, this section has been incorporated into each subsequent revision and codification of the statutes, and is now the general law touching the fund and its ownership. — Revised Code, 1867, §3673; Code of 1876, §4458; Criminal Code, 1886, § 4894; Cr. Code of 1896, § 4714. The history of re-enacted statutes, having the same subject matter, aids materially in the interpretation and construction of the later enactment, and this may suffice as a reason for the rather extended reference to the preexisting statutes creating the fund and directing its destination and uses. The Code of 1852 was a revision and re-enactment of all former statutes introduced' into and forming part of it. And it has been said, that “it has long been a cardinal and controlling maxim, that where a law antecedently to a revision of the statutes is settled, either by clear expressions in the statutes, or adjudications on them, the mere change of phraseology shall not be deemed or' construed a change of the law, unless such phraseology evidently purport an intention in the legislature to work a change.”—Sedgwick Stat. & Const. Law (2d ed.), 365. The maxim has been applied in the construction of the Code. In Landford v. Dunklin, 71 Ala. 609, it was said : “The statute- as em: bodied in the Code, is. changed in phraseology. Words are omitted which were found in the former statute, but there is no indication of a legislative intent to change or to modify the former statute — certainly not to vary the effect of' the administration committed to the sheriff or coro-r ner. No rule of statutory construction rests upon better reasoning than that, in the revision of statutes, alteration of phraseology, the omission or addition of words, will not necessarily change the operation or construction of former- statutes. The language of the statute as varied,.or the legislative intent to change the- former statute, must be clear, before it can be pronounced that there is a change of such statutes in construction and operation.” From the time of its original adoption, it has been of frequent observation, that ‘‘brevity of expression was, with the framers of the Code of 1852, a cardinal principle. The substance of two or more sections of statutes previously enacted, was condensed into one section or sentence, whenever their provisions and subject matter would permit such condensation.”—Rupert v. Elston, 35 Ala. 79 ; Posey v. Pressley, 60 Ala. 243 ; E. T., V. & G. R. R. Co. v. Hughes, 76 Ala. 590. Under the pre-existing statute, as we have seen, fines and forfeitures passed into the county treasury, unaffected by a devotion or appropriation to particular uses, in its original form, expressing on its face the legislative intent to raise a fund to defray county expenses, charging the county treasurer with the duty of keeping and disbursing it according to law. The section of the Code of 1852, which has been substantially incorporated in the succeeding Codes, contains no .words indicative of a legislative intent to change the nature and character of the fund, its custody, nor its administration: It is but one of the numerous instances of the condensation of former statutes; and a legislative intent to change the pre-existing statutes in meaning and operation can not be fairly deduced from it. Fines and forfeitures go to the county in which- the indictment was found, unless otherwise provided, is the equivalent of saying belong to the county, when read in the light of the succeeding words and of legislative history. ‘‘And judgment therefor must be entered in favor of the State, for the use of the particular -county,” the. judgment importing that while necessarily rendered in favor of the State, because it was the law of the State which was broken, or the breach of an obligation owing the State, or the non-performance of a duty owing the State, the fruits of the recovery belonged to the county — ■ the county had in them, the real, exclusive, beneficial interest. And in this connection, it may be observed, that until the adoption of the Penal Code of 1866, incorporated in the revised Code of 1867, the general law did not, with the exception of compensation of witnesses for the State in criminal cases in certain contingencies, devote or appropriate the fund to particular uses.

In some of oiir decisions, in .construction of local statutes, and notably in the case of Brown v. Parris, 93 Ala. 314, to which we are now referred, it has been said, and very properly said, that the court of county commissioners has no authority or control over the fund. By which no more was intended, or could have been intended, than that the particular statute under consideration, divested them of all authority or control, by which they could deflect the fund from the particular uses to which the statute devoted it, appropriating it as they may appropriate the general funds or revenue of the county, nor were the claims on the fund subject to the audit and allowance of the court. This is now true of the fund as it exists under the,; general law, devoted to specific uses.

The particular question involved in Brown v. Parris, supra, was whether it was within legislative competency to revive claims against the fine and forfeiture fund of Marshall county, which were barred by the neglect to register them in accordance with a pre-existing statute. Legislative power over the fund, and its appropriation in legislative discretion, was declai*ed as it had been declared in former decisions, to some of which we have referred ; and it was declared that the revival of the claims did not contravene section 56 of Article IV of the constitution. The part of the decision now relied on, is expressed as follows: “The court of county commissioners has no control over the fines and forfeitures, or power to dispose of the fund though placed in the custody of the county treasurer for convenient disbursement pursuant to law. Section 4458 of Code of 1876 — section 4894 of the Code of 1886 — which declares :■ ‘All fines go to the county in which the, indictment was found or the prosecution commenced, unless otherwise expressly provided, and judgment therefor must be entered in the name of the State for the use of the particular county, ’ does not operate to constitute the fines a county fund, or to confer on the county commissioners any control of them. The control and disposition of the fund still resides in the General Assembly, who has the power to direct what claims shall be paid out of it, the preferences and conditions of payment; which may be changed or modified at pleasure — in short, the fines and forfeitures' constitute a State fund.” It is obvious, all that is said,in reference to the construction, operation and effect of the general statute, is mere dicta, not essential to a decision of the particular question before the court, and not supported by the authorities referred to, which were in construction of special or local statutes. Besides, it is in direct conflict with State v. Allen, 71 Ala. 543, in which the question was whether fines belonged to the State or county, and it was said by Stone, J.:. “The proceeding, although in the name of the State, is for •Montgomery county. The fine money does not go to the State, but to the county. In fact, these proceedings are prosecuted in the name of the State for the use of Montgomery county.” It is obviously true, that dominion over the fund resides in the General Assembly, as dominion resides over all county or State funds or revenues, no element of contract intervening, compelling a particular application or appropriation of them. But because this power resides in the General Assembly, does not obliterate all distinction between State and county funds and revenues. The distinction exists in the statutes, and we are not aware of any legislation tending to its obliteration. Whenever a fund is created for the use of a county, and its use is localized, and its administration entrusted only to county officials, it is distinguished as a county fund from funds created for the use of the State, not -localized to any division, or sub-division of the State, and its administration entrusted wholly to State officials; it is a State- fund or revenue. The fine and forfeiture fund is essentially a county fund — of it the State divested itself of all ownership and title, and transferred ownership to the county. Now, that it has been appropriated to specific uses, from which it may not be diverted, the county may stand in the relation of a trustee. Assuming this to be true, the power and capacity of a trustee to maintain suits for the misappropriation, waste, or conversion of trust funds, is, undoubted.—Carey v. Brown, 92 U. S. 171. The fund is not a mere waif, uncertain in ownership — it belongs to the county, receivable only by the county treasurer, strictly? a county officer charged with the duty of receiving, keeping and disbursing no other money than the money of the county, having an official bond payable to the county, the jienalty of which is fixed by the court of county commissioners, which is taken and approved by the judge of probate, and the condition of which is broken, if the principal misappropriates, wastes or converts public moneys coming to his possession in his official capacity. —Code of 1886, §§ 910-15 ; Code of 1896, §§ 1426-1429 ; Barnes v. Hudman, 57 Ala. 504; Lewis v. Lee County, 66 Ala. 480 ; Briggs v. Coleman, 51 Ala. 561.

The first cause of demurrer to the bill was not well taken. If it be conceded, the bill because of generality would have been demurrable, if it had averred no more than illegal payments from the fine and forfeiture fund to a particular amount — that the kind or character of the claims must have been averred — with sufficient clearness, the bill read in connection with the exhibits, shows the payments averred to have been illegal, were of the certificates of witnesses for the State ; to whom the certificates were issued and the amount of each certificate. The second, third, and sixth causes of demurrer may be considered together. The question they involve is, whether the treasurer had authority to pay claims which had not been entered on the book of the county treasurer, or to pay them otherwise than in the order in which they were entered. The question requires a construction of the fifth and sixth sections of the local statute (approved March 1, 1881), prevailing in Jackson county.

The fifth section requires the clerk of the circuit court, immediately after the term of the court, to “enter in a book kept by the treasurer, a certified list of all certificates issued by him during that term of the circuit court to witnesses for the State, by the clerk, and by the foreman of the grand jury, showing the order by date in which they were issued, to whom and for what amount, and for making the list, the clerk is entitled to a fee of two cents for each certificate, payable on the delivery of the list to the treasurer. The sixth section provides that on completion of the list it shall be delivered to the treasurer by the clerk, and that it shall be the duty of the treasurer to keep the book open to the inspection of all persons who have certificates described therein, and to pay the certificates in the order in which, they are entered on the book; “and when a certificate is paid the fact shall be marked on said book, with the date of payment, and the certificate shall be surrendered by the holder, and cancelled by the treasurer.” The statute is plain and unambiguous in its terms, and assimilates itself to all legislation, general or local, touching claims payable from the county treasury, whether subject or not to. audit and allowance by the court of county commissioners, in the requirement' that there must be authentication of them, registry by the county treasurer and payment in the order of registration. Until the clerk of the circuit court enters in the book of the treasurer the certificates issued by him, the certificates do not become a charge on the fine-and forfeiture fund. The statute, as matter of grace, not of right, creates the charge, and prescribes the conditions on which the charge becomes enforceable,, not the rendition of the service of attendance by the witness — nor the issue to him of the certificate as evidence of the rendition of the service, nor the two conjoined. The two must be conjoined, but the charge is not created until there is the entry in the book of the treasurer by the clerk of the circuit court. The rule of the common law is, that the State is not liable for costs or fees, and when a statute creates the liability, there must be compliance with the terms and conditions upon which the liability is made to depend.—State v. Brewer, 64 Ala. 287. There was, of consequence, error in sustaining these causes of demurrer — a payment of witness certificates which had not been entered by the clerk of the circuit court on the book of the treasurer, was unauthorized, a misappropriation of the fund, rendering him and his Sureties liable.

The fourth cause of demurrer rests particularly upon the theory, that as it was the laches of the clerk of the circuit court, not to enter on the book of the treasurer the witness certificates he had issued, the complainant is estopped from asserting the invalidity of such certificates. It is a well settled doctrine, resting not on notions of mere prerogative, but upon -the weightiest considerations of public policy, that the State nor any of its governmental sub-divisiqns, are not estopped by the laches of public officers.—State v. Brewer, 64 Ala. 287. The claimants of the certificates knew that registration by the clerk of the circuit court in the book of the treasurer, was essential to create them a charge on the fine and forfeiture fund, and that without such registration the treasurer had not authority to pay them, and was compelled to pay them only in the oi'der of registration. An inspection of the book, a matter of right, would have disclosed the laches of the clerk, and he could have been compelled to the performance of the duty of registration. Of consequence, that there was not registration, rendering the certificates a legal claim on the fund, resulted from the concurring negligence of the clerk and of the claimants.

The fifth cause of demurrer proceeds upon the proposition that the statute so far as it requires registration of the certificates issuing to witnesses is directory. The proposition manifestly contravenes the construction of the statute which we have adopted, and would defeat the plain intent of the legislature. There is much discussion in the books as to directory and mandatory statutes, and it is difficult to reconcile all that has been said and decided. There is a general principle recognized by all the authorities which gives complexion to the statutory requirement of registration, and that is, .that statutory directions which are of the essence of the thing to be done are mandatory. — 23 Am. & Eng. Encyc. Law, 153, 453.

We are of opinion the demurrers to the bill were not wel-1 taken, and should have been overruled.

The statute, (Code of 1886, § 265, Code of 1896, § 307), declares the bond of certain officers, including the county treasurer, “is a lien upon the property of the principal from the date of its execution.” In Dallas County v. Timberlake, 54 Ala. 403 ; Knighton v. Curry, 62 Ala. 404, and several subsequent cases, it is held that the lien is enforceable only in equity. The bill seeks to enforce a lien on certain described real estate of which the deceased treasurer was seized at the time of his second election and the execution of his bond, . This imparts equity to the bill, and renders erroneous the decree dismissing it for want of equity. Whether the bill is not demurrable because it seeks only an accounting of the fine and forfeiture, and not of all the accounts of the treasurer, and the enforcement of the lien for his default in this respect only, are questions not now raised by the record. If in this particular the bill is defective,- the 'defect is curable by amendment, and amendable defects are not reached by a motion to dismiss for want of equity. — 3 Brick. Dig. 390, §§ 371, 372, 379.

We have considered all questions presented by the record; and the result is the decree of the chancellor must be reversed and a decree rendered overruling the motion to dismiss the bill for want of equity, and the several demurrers, and remanding the cause for further proceedings in conformity to this opinion.

Reversed, rendered and remanded.