98 Ala. 535 | Ala. | 1893
This is a novel action in this State. We have been referred to no authority which supports it, and can find none. We are sure it has no support in principle.
Section 901 of the Code provides that, “the court of county commissioners must, in term time, audit all claims against their respective counties; and every claim or such part thereof as is allowed, must be registered in a book kept for that purpose ; and the. judge of probate must give the claimant a warrant on the treasurer for the amount so allowed.” It is the duty of the treasurer to register, according to prescribed forms, in well bound books, all claims allowed by the commissioners court and presented to him, designating date of allowance* when presented, the character of the claim, to whom allowed and the amount; and to number, register and pay all claims in the order in which they are presented, &o. Sec. 915.
The substance of plaintiff’s complaint is, that the defendant, Savage, who, with the sureties on his official bond, is sued for the supposed grievance, as probate judge of Cherokee county, acting by and through his duly appointed and authorized clerk, carelessly or fraudulently issued to, or in the name of one, Converse, certain warrants on the county treasurer for the payment from the treasury of
It is perfectly obvious that these warrants are not authorized to be issued for commercial circulation. They are but means and safe-guards provided by law for tbe disbursement of tbe public money of the county, by tbe officers entrusted with its keeping and disbursement. A warrant is tbe command of one duly authorized officer to another, whose duty it is to obey, to pay, from tbe county funds, a specified sum to a designated person whose claim therefor has been allowed by tbe court of county commissioners. So far from being intended as a'circulating paper, to which tbe rights of third persons might attach, in commercial dealing, it possesses no element of a contract. It is not assignable so as to be made the foundation of an action at the suit of a trans-ferree.—Code, § 1762; West v. Foreman, 21 Ala. 400. Indeed, strictly speaking, no action at all can be maintained upon such a warrant against the county, or any officer or person. If the treasurer has funds in his hands lawfully applicable to its payment, it is his official duty to pay it; but he is not bound by virtue of any contractual obligation, as a party to the instrument. His failure to pay, having funds for that purpose, is an official dereliction for which he is liable to an action. The warrant, it may be, raises prima facie evidence of his duty to pay; but it is not, in a legal sense, the foundation of an action brought against the treasurer. Such action would be for the breach of official duty to which the warrant bears only a collateral relation. In Com. Court v. Moore, 53 Ala. 25, this court properly said: “If after the audit and allowance, a warrant is, pursuant to the statute, drawn on the county treasurer, it is a mere authority to him to pay. It is nothing more really than an order on the county itself, the debtor; citing Dillon Mun. Corp. § 406-412. And again, in the same case, “When the claim has been audited and allowed by the Commissioners Court it ceases to be the subject of a suit in the ordinary modes against the county. If the Commissioners Court fail to levy and collect a tax for
It is clear, therefore, that neither count of the complaint contains a substantial cause of action, and the demurrers to them should have been sustained; and as it is obvious no amendment can be made which will give a cause of action, the judgment of the Circuit Court will be reversed, and judgment here rendered for the defendant.
Reversed and remanded.