121 So. 504 | Ala. | 1929
A former appeal is reported as Ramage, Parks Co. v. Folmar,
This appeal presents for decision the rulings on admission of evidence and the rendition of the judgment; the overruling of appellant's motion for summary judgment, as provided by section 10265, of the Code, against an acting county treasurer, under sections 319 and 322 of the Code.
The item of interest from time fixed for payment and damages of 10 per cent. and costs are also sought to be collected, for failure to pay over moneys of the county alleged to be due and withheld after due demand for payment. Section 10266, Code.
Some of the warrants in question, on which movant predicates this motion, were discussed on the former appeal.
In the agreement of counsel it is stated: "That plaintiffs are the owners and in the possession of several warrants described in their motion; that said warrants are valid and proper charges against the general road fund of said county; that they are severally registered against said general road fund of said county and given registration numbers as alleged in said motion; that said warrants were duly presented to the treasurer of said county for payment on the 25th day of February, and again on the 2d day of March, 1925, and that at both times W. B. Folmar, who was at such time treasurer of said county, refused to pay said warrants, or any part of them;" that said defendant was the acting treasurer under the statute, and had so acted from September 15, 1915, the date of appointment; that the budget served on the county treasurer for said year embraced items of cost bills for convicts of $4,000 and interest of $18,130 on the issue of road and bridge bonds. This budget was adverted to on former appeal. A levy of 25 cents on each $100 taxable property was admitted, to be used in the payment on bonds, and the surplus "for constructing and maintenance of the public roads." It is further shown that the county had borrowed and secured by "tax anticipation notes" the sum of $50,800, registered January 7, 1925; the sum of $3,791.60 registered January 7, 1925; and $5,500 registered January 27, 1925; and a last note for $390 registered January 27, 1925. All of said notes were made due and payable on February 1, 1925.
The nature of county warrants, as distinguished from a bond that may be issued under the Constitution (sections 222, 224), was the subject of discussion in Littlejohn v. Littlejohn,
The action of the county in making temporary loans in anticipation "of taxes" (from funds with a potential existence that are derived from taxable properties, etc.) for the current year was, from time to time, to be governed and tested by the General Acts of 1915, p. 105, or sections 6776-6788, Code. Troy Nat'l Bk. v. Russell Co. (D.C.) 291 F. 185, 188. The effect of Special Session Acts of 1920, p. 10, was declared in Hendrix v. Fountain,
When the Code was considered and the provisions of article 3, §§ 6776-6788, as to "interest bearing warrants of counties," added by the code committee of the Legislature, there was no excise tax. And the terms of the statute, "in anticipation of the collection of taxes for the year," § 6776; "one half of the income from taxation of said county for the preceding year," § 6777; and requiring said warrants to be "registered by the proper authority in said county in the order in which they are issued and the court of county commissioners, board of revenue or other governing body have set aside and apart out of the taxes for the current year a sufficient amount to retire such warrants. Said warrants shall be paid in the order of their registration and entitled to priority of payment out of the proceeds of the taxes of the current year," § 6778 — were intended to apply to anticipated incomes from taxable properties for the year, and not to excise or license taxes.
It may be further noted that the answer of the treasurer gives the amount of the registered claims here pertinent, in the aggregate sum of $6,068.05 (not to embrace movant's warrants registered as claim numbers 827 and 828, in the amounts of $474.62 and $980); that the registered claims were in the aggregate of $16,496.92, if made to embrace movant's warrant No. 849 for $2,610 and the amount of registered claims is $27,285.05, if there is included the last claim of movant on which the motion is predicated.
The agreed statement of facts fixed the total amount of registered claims against the county's general fund at $60,645.85.
The classification of the registrations of claims here pertinent should be thus stated:
$ 6,068.05 Total registration prior to first two of movant. 1,454.62 First two of movant's registered claims. 3,396.95 Total registration between first two and second two of movant. 5,586.34 Second two of movant's registered claims. 9,098.46 Total registration between second two of movant and his last one. 1,689.63 Last one of movant's registered claims. ---------- $27,294.05 Balance necessary and available to pay all of movant's warrants.
The financial statement of the county exhibited is that on January 1, 1923, that municipality issued bonds, and the proceeds of the sale thereof were $151,941.60, and credited to the general fund; that the proceeds from the gasoline excise tax were kept separately from the general and other road fund, and were expended for current supplies, machinery, and work for and done on the public roads of the county; and that no part of said fund was or may be used in the payment of registered warrants "against the General Road Fund." The amounts received from the gasoline excise tax fund are recited, but, not being available for payment of such registered claims of the class of which were movant's registered claims, need not be recited. The agreed statement of facts, however, states these several sums as: In general fund $22,888.48, to road fund $13,410, gas excise tax to March 2, 1925, $2,187.36, and to July 1, 1925, $6,698.39, on which date the gas excise tax had been expended pursuant to law.
It is here necessary that we consider the one item of rejection of evidence over due exception of appellant. The record recites, as to this:
"The movants then exhibited copy of a warrant drawn on the Treasurer of the County, No. 744, the same being marked Exhibit 'C', which warrant being read is as follows, to wit:
"The State of Alabama, Pike County.
"Commissioners' Court.
"$2526.00 February Term, 1922.
"County Depository of Said County:
"Pay to Ramage, Parks Company, or Bearer, Twenty-Five Hundred Twenty-Six and no/100. . . . . . Dollars. For oats — Emergency Fund. Out of the money in the Treasury not otherwise appropriated. Issued February 6, 1922.
"Road Fund J. G. Key, "No. 744. Judge of Probate."
The proper predicate had been laid for the introduction of a copy of the illegal or unauthorized warrant paid by the treasurer of $2,526, and purporting to have been allowed and paid to Ramage, Parks Co. on the 6th day of February, 1922. The witness Ramage testified that such warrant was not issued or delivered to his company (the alleged payee therein); that it had or made no such claim against the county; that no such sale of goods or feed stuffs had been delivered or sale made by his company to the county; that he, nor his company, nor any one for it, had ever received, indorsed, or collected from the county depository or treasury said warrant so claimed as a payment by the county depository and charged against the general road fund. Counsel and the court indicated in the record that the ruling in rejecting this evidence (copy of the alleged warrant for $2,526) was not rested on the fact that a copy was offered in evidence rather than the original. It was excluded from evidence on the stated ground that this payment occurred before plaintiff-movant's rights had accrued, "and before he had sold the county anything for which those warrants (the same on which the instant motion is based) were issued"; and that the alleged illegal or unauthorized warrant of $2,526 bore a date of nearly two years preceding movant's asserted registered claims.
It was admitted that the warrant indorsed paid for $2,526 was issued of date of February 6, 1922, and was presented and paid by *146 the depository or treasurer on February 8, 1922, and was charged by that disbursing officer to the general road fund of the county. We have stated that, as a part of the effort to indicate to the court the relevancy of such depletion of the general road fund, movant asserted that it was not delivered, received, or collected as purported by the indorsement thereon. We shall indicate that such preliminary proof was relevant and proper under the necessities of the case and rules obtaining. General Acts 1927, p. 636. Its effect was to place the burden of going forward with the evidence upon the depository or acting treasurer, to justify, under the law, the payment out of the general road fund of the sum indicated, and to the prejudice of all subsequent legal claims thereon. That is, if $2,526 were illegally paid out of the fund in question, two years before movant's claims accrued, it resulted in a depletion of that fund, affecting movant and the other registered claimants against such fund. That payment, if illegal, and it was, under the undisputed evidence of Ramage, postponed the payment of movant's claims, or some of them, as first and later presented and refused of payment. There was prejudicial error in rejecting said documentary evidence in question, when it was shown relevant by the undisputed evidence of movant.
There must be express warrant of law for all collections and disbursements of the public moneys, and claims not so authorized are null and void. Jeffersonian Pub. Co. v. Hilliard,
The existence of a warrant in due form, if issued with authority and duly presented, makes a prima facie case for movants; if without authority of law, it is void. Rhodes v. Marengo County Bank,
It is insisted there was error in declining to admit in evidence "the report of the financial condition of Pike County, from January 1, 1924, to July 1, 1924, as recorded in Minute Book of the Commissioners Court of Pike County, marked 'From November, 1918,' on pages 322 to 358 inclusive, and published in the Troy Herald, a newspaper published in Pike County, Alabama, in the issues thereof dated Saturday, July 19, 1924, and Tuesday, July 22, 1924; and report of the financial condition of Pike County from July 1, 1924, to January 1, 1925, as recorded in Minute Book of the Commissioners Court of Pike County, marked 'From November 1918,' on pages 359 to 372, inclusive, and published in the Troy Herald, a newspaper published in Pike County, Alabama, in the issues thereof dated Friday, January 23, 1925, and Tuesday, January 27, 1925. The said reports being read are substantially as follows, to-wit" — setting out the reports. The grounds of objection, among others, were "upon the ground that it purports to be a statement from the minutes of the commissioners court, and not from the books of the County Treasurer. 4th, it is secondary evidence. 5th, there is nothing which shows from what source the information contained in this report was obtained. 6th, it purports to be an abbreviated statement of the financial condition of the County made by the commissioners court, and among other things deals with accounts on file in the commissioners court and other matters that do not pertain to the office of County Treasurer." It is the duty of the county treasurer to keep separate registers of claims presented against the "general fund" and the "special fund, if any," and the "fine and forfeiture fund"; to number and register in order in which they are presented claims audited and allowed, and (except as otherwise provided by law) to pay in the order of their registration; to submit to the court of county commissioners at the first term in each year the register of claims, etc.; and to furnish the judge of probate a verified statement of all moneys received by him for the county, etc. Section 303, Code.
The annual account of the depository or treasurer, examined and approved by the court of county commissioners, is required by law to be recorded, and a copy of the same posted at the courthouse door. Sections 307, 315, Code. In counties where there are depositories in lieu of county treasurers, they are charged with all and like duties and liabilities imposed by law upon county treasurers. Sections 312-318, Code; Ramage, Parks Co. v. Folmar,
These published statements, though for some purposes, may be prima facie evidence — as impeachment in a proper case — of the financial condition of some county fund, when that statement is actually made up by *147
the treasurers or depositories. The primary purpose of such statements, required to be published or posted, is that of information to the general public of the county's financial status. General Acts 1915, pp. 823, 824; Code of 1907, § 3317; Code of 1923, § 6766; General Acts 1919, p. 451. The report of the financial condition of that county, as recorded in the Minute Book of the commissioners court, was offered as evidence in the instant proceeding. The certified transcript thereof was not offered, as provided for transcripts of books kept in any public office and certified by the custodian, and required to be received in evidence by the courts. Sections 7681, 7791, subd. 9, Code. There was error in its rejection, over the exception of plaintiff-movant, as the original record. Stevenson v. Moody,
Adverting to the purpose and effect of the several county funds, it may be observed that the general road fund, against which the instant warrants are registered and payable, is the result from sources of revenue provided by law: (1) The special tax of one-fourth of 1 per cent. upon each $100 value of taxable property, to be applied to the payment on road and bridge erection, construction and maintenance, and to the payment of interest on road bonds, section 215, Const.; Code §§ 213, 217; Ramage, Parks Co. v. Folmar,
It is thus noted that the road funds for Pike county were to be augmented or created from (a) the special tax levied under organic and statute law, of 25 cents on the hundred of taxable property; (b) from commutation fees in lieu of road work; (c) the gasoline excise tax. However, these several funds must be expended as provided by statute, and this would lay out of present consideration the commutation and gasoline excise tax funds and warrants against said special road funds.
There were observations made on the former appeal of the adoption of a yearly budget by the county commissioners, and of the right to transfer moneys from the road fund to the general fund of the county in the application and payment of interest on the bonded indebtedness of the county, that need not be repeated. And, as shown by a budget under Acts of 1919, p. 722, though interest on road bonds is not a current governmental expense (Rhodes v. Marengo County Bank,
The current governmental expenses, of which the budget may consist (without defining the proper subjects or items that may compose a budget), are obligations against the general funds of the county, and to the payment of that budget the road funds are not subject. This results from the fact that the levies in this behalf are for a specific purpose *148 or purposes, and cannot be legally disbursed for a different purpose. Hence, the county depository cannot legally point to the budget as his authority to withhold general road funds, and refuse payment of warrants from such special funds of an otherwise payable warrant upon and from such fund. That is to say, the one-fourth of 1 per cent. levy for roads and bridges (the general road fund), nor the special funds as the gasoline excise tax, etc. (to be expended only in maintenance and repair of roads and bridges, Acts 1923, p. 197), and the revenue from commutation or per capita tax in lieu of road work, are not funds subject to the payment of the general items of the budget. Ramage, Parks Co. v. Folmar, supra.
It all comes to this, whether the depository had, or should have had, sufficient funds in the general road fund, on which movant's warrants were drawn, and against which they were registered and payable, at the time of their presentation for payment, to pay them in the order of their registration. Let us, for the purpose of this discussion, take no account of its anticipated income, and reserve sufficient to pay all interest, since the result on another trial is not altered by so doing; with this assumption, the record shows the status of this fund to have been as follows on March 2, 1925, the date of presentation and refusal of payment:
$19,447.68 Balance in general road fund "in treasury."
10,315.00 Int. due in April, July, and October on bonds. ----------- $ 9,132.68 Actually available even after reservation for all interest on bonds.
There was therefore actually available, even with above assumption, moneys to have paid several of movant's warrants, as was held in the former decision of this court. The treasurer's books in evidence indicated that on March 2, 1925, the date on which warrants were presented, the "General Fund" was shown to have been $28,598.78, and the "Road Fund" $18,325.91.
But the status of this fund should have been as follows, if we may look to the former decision and record, N.C. St. L. Ry. v. Crosby,
$ 9,132.68 Balance actually available above 18,000.00 Payment of warrants of later registration as ascertained and stated by Mr. Justice Sayre on first appeal, Ramage, Parks Co. v. Folmar,
Since the case must be retried, we may observe that the statute allows interest from the demand and refusal, and 10 per cent. damages, section 10265, Code, where there is an unlawful refusal of payment. And these items of interest and damages are sought on the several warrants of appellant, notwithstanding the fact that several of said warrants have been paid by the treasurer since the litigation was initiated. If any warrant or warrants were refused without authority of law, the movant is entitled to collect, on such warrant, the additional sums indicated by the statute. Section 10265, Code.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
