105 Ala. 576 | Ala. | 1894
This was a petition filed by the appellant praying the issue of a mandamus directed to the appellee, as judge of the court of probate of the county of Pike, commanding him to issue to the appellant warrants on the county treasury for the payment of claims against the county, which had been audited and allowed by the court of county commissioners. The answer of the appellee admits the rendition of the services by the appellant which were the consideration of the claims, and the audit and allowance of the claims by the court of county commissioners. In avoidance of the claims and of the duty to issue the warrants, it is alleged that the three commissioners voting the audit and allowance were holders of shares of the capital stock of appellant, and
The court of county commissioners is a court of record, of peculiar constitution. It is clothed with large powers' relating to the internal government and affairs of the county, some of which are in their nature legislative, some judicial, and others administrative or executive. The court has authority “to examine, settle and allow all accounts and claims chargeable against the county.” Code, § 826. Such claims do not become the subject of suit against the county, until they have been presented to the court of county commissioners, and disallowed or reduced by.the court, and the reduction refused by the claimant. — Code, § 2574. When the court has audited and allowed a claim against a county, it is the duty of the judge of px-obate, the keeper of the records of the coux’t, to “give the claixnant a warrant on the treasury for the amount so allowed.” — Code, § 901. The audit and allowance of claims against the county is the. exercise of administrative or executive, xiot of judicial power. If the record should show affirmatively that the court had allowed a claim not legally chargeable on the county, the allowance of which was an excess of the authority with which the court is entrusted, the allowance wbuld be void. But when the claim is of the character with which the county is by law chargeable, the audit and allowance creates a prima jade liability on the county ; the power of the commissioners’ court is exhausted ; and the prima fade liability of the county imposes on the judge of probate the duty of giving the claimant a wax’rant on
The statute, (Code, § 647), declares: “No judge of any court, chancellor, county commissioner, or justice, must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity,” "&c. The statute has its foundation in the common law maxim, “nemo debet esse judex in propria sua causa,” which it has been said is the maxim of every country, and that “the learned wisdom of enlightened nations, and the unlettered ideas of ruder societies, are in full accordance upon this point, and wherever tribunals of justice have existed, all men have agreed that a judge shall never have power to decide where he is himself a party.—Wash. Ins. Co. v. Price, 1 Hopk. Ch. 1. It is very properly said in 1 Freeman on Judgments, (4th Ed.) § 144, that the maxim extends “not only to cases in which the judge is a party upon the record, but also to other cases in which he has an interest, however minute, or where one of the parties is a cor
If the disqualification of the commissioners was conceded, the audit and allowance of the claims is not void
The pendency of suit on one of the claims at the time of its allowance, is not material. The subsequent allowance forms a bar to the further prosecution of the suit.
As presented by the petition and answer, the appellee was under the duty of issuing the warrants, and mandamus is the appropriate remedy to compel performance of the duty.
The judgment of the circuit court must be reversed, and a judgment awarding a mandamus in accordance with .the prayer of the petition will be rendered.
Reversed and'rendered.