167 Ga. 695 | Ga. | 1929
Lead Opinion
Anchor Duck Mills, Smith Manufacturing Company, and Austin Western Road Machinery Company filed their petition for mandamus against the board of commissioners of roads and revenues of Butts County, in which they made the following allegations: Prior to January 1, 1927, the fiscal affairs of said county were handled by J. 0. Gaston as sole commissioner of roads and
“No. 607. Office of Commissioner of Roads and Revenues, Butts County. Jackson, Ga., Dee. 29, 1920.
“To the Treasurer of Butts County:
“Pay to Champion Supply Co., or order, six hundred fifty-seven & 50/100 dollars. On account pub.-road fund.
“Attest: J. T. Moore Clerk. J. O. Gaston, commissioner.”
This warrant was indorsed by the Champion Supply Company and transferred for value to Anchor Duck Mills. On its back it has this notation: “Presented, and no funds to pay the within warrant. This 1/28/21. Jno. M. McMichael, Treas.” The Anchor Duck Mills, the holder and innocent purchaser of said warrant for value, has recently presented it to the treasurer for payment, and he refused payment on the ground that he had no funds in hand with which to pay it. On August 7, 1925, said commissioner issued a warrant in identical form with the one above set out (except as to date, payee, and amount), payable to Smith Manufacturing Company or order, for $136. On the back of this warrant is this notation: “Presented, and no funds to pay the within warrant. This Oct. 1, 1925.” Said warrant has been repeatedly presented to the treasurer for payment, and payment was refused on the same ground. On June 30, 1926, said commissioner issued a warrant identical in form as the one first above set out (except as to date, payee, and amount), payable to Austin Western Road Machinery Company or order, for $475. On the back is this notation: “Presented, and no funds to pay the within warrant. This Oct. 13) 1925. Jno. M. McMichael, Treas.” This warrant has been pre
By the act of August 15, 1925, a board of commissioners of roads and revenues for said county was created, effective January 1, 1927; and under said act the above commissioners were duly elected and qualified. Said board is charged with the duty of levying taxes for the proper discharge of debts against said county. These commissioners refused to pay said warrants without the judgment of the court requiring them to so do. Petitioners prayed the issuing of a mandamus requiring said commissioners to levy an extra and additional tax to pay off the principal and interest of said warrants, or at least a tax sufficient to pay off 25 per cent, each year beginning with 1927.
The defendants demurred upon the grounds: (1) The allegations of the petition set forth no cause of action against them. (2) It shows on its face that petitioners have no cause of action against the defendants and are not entitled in law and equity to the relief prayed. (3) It shows on its face that a writ of mandamus can not legally be issued. (4) It shows on its face that no judgment against the defendants named therein legally can be rendered. (5) If any debts exist which are due plaintiffs by the county, they are all open and unliquidated accounts not agreed to be paid except out of the particular funds specified, which funds are exhausted, and said accounts are not so far settled and fixed as to make mandamus the remedy for levying another tax to pay them. (6) Said suit is not authorized by statute. (7) The petition sets out an unenforceable demand against the county, if any, and therefore defendants are not required or authorized to do the acts sought to be enforced by writ of mandamus. (8) Said petition is a mere nullity both in law and in equity. (9) It fails to set out any cause
Did the court err in overruling the demurrer ? The proper answer to this question depends upon the proper answer to the further question whether or not mandamus will lie to compel the ordinary or county commissioners to levy a special tax for the payment of warrants drawn on the county treasurer when the particular funds on which they are drawn are not in existence or are exhausted. It is insisted that warrants on the county treasurer, which are drawn on funds which-do not exist, or which have become exhausted by the payment of warrants drawn thereon, become functus officio and void, and that the debts for which they were issued are mere unliquidated claims the payment of which can not be enforced by mandamus. The general rule is that mandamus will not lie to compel payment of an unliquidated claim. It is essential that the claim should have' been reduced to judgment, or that it should have been allowed by the officer or board vested with the power to allow or reject the same. 38 C. J. 761, § 395 (b), notes 20, 22, 23; Poling v. Board, 50 W. Va. 374 (40 S. E. 357); Thomas v. Mason, 39 W. Va. 526 (20 S. E. 580, 26 L. R. A. 727). This is the rule adopted in this State. In Cox v. Board of Comm’rs, 65 Ga. 741, this court ruled: ’“Mandamus would be a remedy to which the party might resort had his claim been recognized and allowed, and no action taken by this board to provide for its payment. But it is unliquidated, and its very existence denied. When the same is fixed by a judgment, which is the only mode left to the plaintiff after a refusal of the commissioners to allow it, then he may resort to this writ.”
“Except where otherwise provided by law, the ordinaries” or. county commissioners clothed with the management of the fiscal affairs of their counties “must audit all claims against their respective counties, and every claim, or such part as may be allowed, must be registered, and he or his clerk must give the claimant an order on the treasurer for the same, and in the order he shall specifically designate upon what particular fund such order is drawn, and out of which payment is to be.made.” Civil Code (1910), § 410. When a claim-is presented to the ordinary to audit under this section, and he allows it and issues to the claimant a warrant on the county treasurer for its payment, the claim
Where the statute imposes upon a county, or upon some official, board, or tribunal, the clear legal duty to levy a special tax to pay judgments, awards, bonds, warrants, or other allowed1 or fixed indebtedness, or interest thereon, or to provide a sinking-fund for payment at some future date, mandamus will lie, at the instance of the party interested, to compel the performance of such duty. 38 C. J. 776, § 624 (i), note 60. This is the rule in this State. Under the act of 1856, the legislature appointed commissioners to assess damages sustained by owners of lots in the Town of Webster by reason of the removal of the court-house of Lee County; and these commissioners gave to one Cheatham a certificate that he had been damaged in the sum of $1460, and to one Watterer a certificate that he had been damaged in the sum of $161. Watterer transferred his certificate to Cheatham. • Cheatham filed his peti
Mandamus lies to enforce official duty. Civil Code (1910), § 5440. County taxes shall be assessed to pay the legal indebtedness of the county due, or to become due during the year, or past due. § 513. When debts have accumulated against the county, so that 100 per cent, on the State tax will not pay the current expenses of the countjr and the debts in one year, they shall be paid as rapidly as possible, at least 25 per cent, every year. § 507. Under these sections of the Code it is the duty of the proper authorities to levy taxes to pay past-due indebtedness. Wright v. Southern Ry. Co., 146 Ga. 581 (6) (91 S. E. 681). If the county authorities fail to perform this public duty, mandamus clearly lies to compel them to discharge it; and this court has in many cases affirmed judgments awarding writs of mandamus to compel the county authorities to levy taxes to pay warrants issued by the proper authorities upon ’ the county treasurer, where this officer was without funds to pay them. In Jackson Banking Co. v. Gaston, 149 Ga. 31 (99 S. E. 30), it appeared that that company purchased from the original holders and had transferred to itself, in good faith, warrants drawn upon the treasurer of Butts County during the year 1906, against specified funds, amounting in the aggregate to $14,783.97. In another case between the bank and the county, which involved a contest over a specified fund subject to distribution, it was adjudged that the bank was entitled, out of such funds, to payment upon
But it is insisted that this court in Cabaniss v. Hill, 74 Ga. 845, held differently from the rule above stated. It is true that this court held that county warrants ceased to be of avail when the fund on which they were drawn was exhausted, in consequence of which the claim of the creditor was “a mere open, unliquidated account, an account not accepted as correct, not agreed to be paid except out of the particular fund, and not so far settled and fixed as to make mandamus the remedy to levy another tax to pay it;” and that, the power to raise money by taxation being a high prerogative, a mandamus absolute would not be granted to require the levy of a tax to pay a claim, where fraud in the contract and failure of consideration were pleaded, unless the proof of the justness and legality of the claim should be equivalent to a debt of record, or the judgment of some court making it a debt of record. An examination of the decision in that case will disclose that no authority
It may well be said that a decision by a full bench, in which a definite principle of law is decided, is binding, although the decision may not be based upon authorities which support it, and upon sound reasoning, unless there are other reasons for holding that it is not of force. There are reasons for holding that the proposition announced in Cabaniss v. Hill, to the effect that county warrants become of no avail when the funds upon which they are drawn are exhausted, is not binding as a precedent. In that case the court seems to have overlooked the order in which such warrants must be paid (Civil Code (1910), § 579), the provision for their registration and payment according to law without further notice to the treasurer previous to the time of payment (§ 580), and the effect of the failure to present county warrants before December 1, of each year, to the county treasurer for payment, which postpones their payment to all orders which were so presented and not paid for want of funds (§ 581). These statutory provisions, which were in force at the time of the decision in Cabaniss v. Hill, clearly indicate that county warrants do not become functus officio because the funds on which they are drawn may become exhausted. Furthermore, that decision was overruled, in part at least, in City of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 724, 725 (32
We may concede, however, that it was not the purpose of the court to overrule the proposition in Cabaniss v. Hill that county warrants become of no avail when the fund on which they are drawn is exhausted. We think that there is a conclusive reason why that proposition is not applicable to the orders involved in this ease. These orders were all issued subsequently to the act of July 24, 1920 (Acts 1920, p. 65), which provides that on the first day in December of each year the county treasurer and the commissioners of roads and revenues, or other authority having control of the finances of the county, shall make an entry of all orders entitled to payment which were not presented for payment by said date, and of orders of equal dignity which have been paid instead, in whole or in part, and what other orders are entitled to payment before such non-presented orders; that persons holding such orders, who present them without receiving their pay before said date, may have the treasurer annually to mark thereon “presented,” the date of presentation, and the fact that they are not paid for the want of funds; and that such county orders when legally issued and duly presented as above provided, and not paid for want of funds, shall bear interest at the legal rate from date of presentation and nonpayment for the want of funds. Clearly this act means that county orders do not become invalid because the funds upon which they are drawn are exhausted. The provision that they shall bear interest when presented and not paid for want of funds, and such entry is indorsed upon the warrants, clearly contemplates that such
The proposition contained in the second division of the opinion in Cabaniss v. Hill, to the effect that a mandamus absolute would not be granted to require the levy of a tax to pay a claim, where fraud in the contract'upon which the claim was based and failure of consideration were pleaded, unless the proof of the justness and legality of the claim would be equivalent to a debt of record, or the judgment of some court making it a debt of record, is not a ruling to the effect that there must be a judgment before mandamus absolute will be granted, but only a holding that the proof of the justness and legality of the claim, when fraud and failure of consideration are pleaded against its payment, must be the equivalent of a judgment. In the petition in this case there is no allegation tending to impeach the justness and legality of the claims against the county; and in passing upon the demurrer we can not assume either that there is any good defense to these claims, or that the proof which the plaintiffs would offer, if their claims were attacked for any reason, would not be the equivalent of judgments in their favor establishing the justness and legality of their claims. It is clear, from the authorities cited above and from the dictates of sound reasoning, that mandamus will lie to. compel the proper county authorities to levy a tax to pay county warrants issued in payment of debts due, to become due, or past due, in the absence of some defense by the county impeaching the justness and legality of the debts for which the warrants were issued. We repeat what we said in Hogansville Banking Co. v. Hogansville, supra: “The holder of a county warrant for a debt of the county could sue the county and recover; but such remedy would not be as convenient, speedy, and beneficial 'as the writ of mandamus. Besides, mandamus is the proper remedy to enforce the performance of official duties. If a county treasurer can be compelled to pay a lawful warrant drawn upon him by the proper county officials, we see no reason why the depository of a city, designated and appointed by its council to receive and hold its funds subject to its orders, can not be compelled to pay the warrant or order of the city drawn on such depository for its sinking fund.”
The other grounds of demurrer to the petition are not well taken,
Judgment affirmed.
Dissenting Opinion
It seems to be the established general rule that where a debt against a county has been reduced to judgment and the judgment creditor has no other means of enforcing payment, mandamus is the appropriate remedy to compel the proper officers to levy a tax for that purpose, provided, of course, that the county has the power to levy a tax for the payment of such judgment. 18 B. C. L. 281. On the contrary it seems to be the rule that a simple contract debt can not be made the basis of an application for mandamus to compel the levy of a tax by the county for its payment while it retains its form as a simple debt. Ibid. Debts such as those incurred by a plebiscite of the people do not fall within this rule. In the present case county warrants were issued in different years and upon the public-road funds. They were not paid during the years in which they were drawn and dated. Though the petition alleges that they were liquidated demands, the facts set out therein show the contrary. If the county has a defense, it is not too late for that defense to be set up. Indeed, on an application for mandamus based upon a judgment, the county may go behind the judgment to ascertain whether its liability be such as to authorize a tax levy for its discharge. Meyer v. Jordan, 123 Ga. 669; Brunson v. Caskie, 127 Ga. 501. In a case based upon a similar state of facts this court held that where county warrants were drawn on a special fund and that fund was exhausted, thus leaving the county without funds with which to make payment, the warrants make “a mere open, unliquidated account, an account not accepted as correct, not agreed to be paid except out of the particular fund, and not so far settled and fixed as to make mandamus the remedy to levy another tax to pay it.” Cabaniss v. Hill, 74 Ga. 845, 849. In that case it was also said: “It is the highest sort of prerogative to raise money by taxation. ” While in the Gabaniss case the county set up fraud and in this case fraud is not alleged, the principle stated above is nevertheless controlling. It should be noted that in City of Dawson v. Dawson Waterworks Co., 106 Ga. 696, at page 724, the Gabaniss case was overruled in so far as it conflicted with the Dawson case. The former case was not other