55 So. 179 | Ala. | 1911
Relator is a justice of the peace for precinct 9 in Jefferson county. In his court, as such
This justice made out an itemized statement of these judgments for costs against the county, and presented it to the board of revenue of Jefferson county, demanding that the board issue a warrant on the county treasurer for the amount, with directions that payment be made to the justice. The board disallowed the claim in toto, and declined to issue or order issued a warrant for the amount, or any part of the claim, and duly recorded such refusal upon the minutes of the board. Thereupon the relator applied to the judges of the circuit court for Jefferson county for a writ of mandamus to the said board, commanding them to issue, or order to be issued, a warrant upon the county treasurer for the payment of the amount of said claim. Á demurrer was filed to the relator’s petition for the writ, and was sustained by the circuit court. The relator declined to plead further, and suffered judgment to be rendered against him. From this judgment, he appeals to this court.
Relator has mistaken his remedy. County boards, such as commissioners’ courts or boards of revenue, may be compelled by mandamus to act upon claims
After the court or board has allowed such claim, the probate judge, or other proper officer or agent, may be compelled in proper cases to issue the warrant; but if the claim is disallowed such officer, of course, is not authorized to issue the warrant. — Code, § 146; Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 578, 17 South. 112. In this case it is said: “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 (now section 3313). 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 (now section 2472.) When the court has audited and allowed a claim against a county, it is the duty of the judge of probate, the keeper of the records of the court, to ‘give the claimant a warrant on the treasury for the amount so allowed.’— Code, § 901 (now section 146).”
If the costs in cases against road defaulters, such as relator exhibits in this case, are lawful claims against the county, the statute has fixed no specific mode for their collection and payment; hence they should be presented, and allowed or disallowed, as are other claims or demands against the county; and, if disallowed, suit should be brought as for other disallowed claims. Probably claims against counties, the nearest like those in question,' which have been considered by this court where the fees of compensation provided for jurors who attend or serve at a coroner’s inquest. In that case that statute fixed the amount, and provided that the fees should b'e paid in the same manner as those of grand and petit juries, which, of course, did not have to be allowed; yet this court held that before they could be paid the claim must be presented and allowed, and, if disallowed (as in the case at bar), of course an action would lie against the county, as in all other cases.
If there was a necessity to present the claim in qnes
The proper1 remedy of those holding judgments against the counties, is pointed out by this court in the case of Edmondson v. DeKalb County, 51 Ala. 105, 106, from the opinion in which case we quote:
“The statutes subject counties to ordinary suits in specified cases. When in such suit judgment is rendered against the county, no execution or process thereon for its satisfaction can issue. An execution cannot issue, because the county can hold no property, real or personal, which is subject to its mandates. The property to which it may have title, is held for governmental purposes.
“A county has some of the characteristics of a corporation, but is to be esteemed rather as a political organization, the auxiliary of the state, intrusted with defined functions afid powers, having exclusive reference to the general policy of the state, and the general administration of that policy. — Billon on Mun. Cor. § 10;
“The judgment creditor is not without remedy. He can register his claim, and obtain payment, as other creditors of the county are required to do. If the commissioners’ court have power, and refuse to levy a tax sufficient to meet the judgment, or any other claim against the county properly audited and allowed, a mandamus will lie to compel them. If the treasurer has funds liable to the payment of a claim, and he fails or refuses to pay on demand, an ample and summary remedy is prescribed against him and his sureties.”
The mandamus referred to above is to compel the levy of a tax to raise funds with which to pay, and not to compel allowance of particular claims.
The only authority which could be said to support the contention of the relator is that of Marengo County v. Lyles, 101 Ala. 423, 12 South. 412, and what was there said in support of the proposition contended for was declared dictum, and unsound, in the case of Scarbrough v. Watson, 140 Ala. 351, 37 South. 281. In this last case Watson was clerk of the circuit court of Calhoun county, and presented his claim to the commissioners’ court of that county for copying the minutes of the court, which claim was disallowed, and he applied to the jndge of the circuit court for a mandamus to compel its allow
The court properly sustained the demurrer to the petition for the writ.
Affirmed.