Shinbone v. Randolph County

56 Ala. 183 | Ala. | 1876

BEICKELL, C. J.

The material question of this case has been so often passed upon by this court, that it must be regarded as definitely settled. That question is, the liability of a county to an ordinary civil action, founded on a contract, which has not been presented to, and disallowed in whole or in part, by the Court of County Commissioners, Prior to the Code of 1852, counties were not subject to suit. If debts were contracted by the authorities of the county, they were payable only from the treasury of the county; and the treasury was supplied, by taxation levied by the Commissioners’ Court, with funds to meet and discharge them. The court could, by mandamus, be compelled to levy the tax; and ample remedies were provided, and are yet in force, to compel the treasurer to pay claims when in funds, in the order of payment prescribed by law. The Code declares each county a body corporate. Without this statutory declaration, it was a corporation from the very nature and character of its organization and duties. It is further declared, that it may sue and be sued in any court of record.' — B. C., § 897. The cases in which it may be sued, are distinctly specified, and cannot be enlarged without legislation. A condition precedent to suit is the presentment of the claim to the Commissioners’ Court, and its disallowance, in whole or in part, by that court. — B. C., § 2537. An averment of such presentment and disallowance is an indispensable element of a complaint against the county. — Autauga County v. Davis, 32 Ala. 703; Marshall County v. Jackson County, 36 Ala. 613; Covington County v. Dunklin & Steiner, 52 Ala. 28. The county is not in default, until such presentment and disallowance has been made. The law requires the Commissioners’ Court to audit and allow claims against the county. When audited and allowed, the claim can be presented to, and registered by the county treasurer, whose duty it is to pay in the order of registration. The harmonious operation of the statutes would be destroyed, and the county subjected to unnecessary and expensive legislation, if suits were maintainable on claims which had not been presented to, and allowed or disallowed by the Commissioners’ Court. All who deal with the county, are aware of the law which prescribes the mode of payment, and assent to pursue the course to obtain it which the law fixes.

2. It may be, the claims on which this action is founded are not required to be presented to the Commissioners’ Court for allowance. The statute under which the bonds were issued, and the claims, may fix definitely their validity and amount. If that be true — and, as the case is not presented, it is not for us to determine whether it is or not — if the Commissioners’ Court refuses to levy a tax for their payment, mandamus to compel them is the appropriate remedy for appellant.'— Commissioners’ Court v. Rather, 48 Ala, 433; Tarver v. Commissioners’ Court, 17 Ala. 527.

The demurrer to the complaint was properly sustained, and the judgment of the court below is affirmed.