State ex rel. Smith v. White

| Ala. | Nov 15, 1896

COLEMAN, J.

Edward J. Smith, as treasurer of the board of control of the agricultural school and experiment station of the Fourth Congressional District, petitioned the court for the writ of mandamus, to compel the Auditor to draw his warrant in favor of petitioner upon the Treasurer of the State for a designated amount of money. The facts upon which the claim is based are stated in the petition. The court sustained a demurrer to the petition, from which judgment the appeal is prosecuted. The money claimed arose from the sale of tags, required by law to be attached to bags, barrels or packages of fertilizer sold or exchanged under the following statute, to-wit: ‘ ‘ And the revenue or income derived by the sale of such tags, over and above the sum of twenty-five cents per ton, shall be appropriated and applied in equal parts to the support of the four agricultural schools and experiment stations located at Athens, Albertville, Abbeville and Evergreen, and any other branch agricultural experiment station and agricultural school created hereafter by the legislature of this State.” Acts, 1894-95, p. 368. This act was approved February 4th, 1895. At the same session of the legislature, on the 18th of February, 1895, provision was made for five additional branch agricultural experiment stations and agricultural schools. — Acts, 1894-95, pp. 582-83. We quote the 1st, 5th and 9th sections of said act:

“ Section 1. Be it enacted by the General Assembly oj Alabama, that five additional agi-icultural branch experiment stations and agricultural schools are hereby established to be located in the first, fourth, fifth, sixth and ninth congressional districts, respectively, in the State of Alabama.”

“ Sec. 5. Be it further enacted, that for the equipment and improvement of said stations and schools there is hereby appropriated out of the agricultural fund in the treasury, not otherwise appropriated, an equal amount to the sum a[Dpropriated to each of the other agricultural schools and experiment stations in Alabama. Provided, there is so much in said fund not otherwise appropriated, one-fourth of such sum to be paid quarterly, to-wit, January 1st, April 1st, July 1st, and October 1st, of each year to the treasurer of said board of control of said stations.”

“ Sec. 9. Be it farther enacted, that no school and experiment station shall be established in either of said congressional districts until such district or the citizens thereof shall donate and convey to the State, for the use of such stations and schools, real estate or buildings, not less than five thousand dollars in value as approved by the Commissioner of Agriculture. Provided, that when the school is established in the sixth district, it shall be established under this bill, at Hamilton, Marion county, and that for the fifth district at Hayneville, Lowndes county. Provided further,- and when located, the Hamilton people shall make title to the State for the school building and eighty acres of land adjoining.”

The petition shows on its face that the agricultural school in the Fourth Congressional District was not established and located until the 5th of July, 1897, and that the money paid over to the treasurer derived from the sale of tags, was received during the years 1895, 1896, and the first quarter of the year 1897, ending with the month of March. The meritorious question raised by the demurrer is, whether an agricultural school and experiment station established and located under the provisions of the statute in July, 1897, is entitled to an equal share of the money received during the previous years.

There was no compulsion upon the citizens of either of the congressional districts named in section 1, supra, to comply with the terms and conditions upon which a school and experiment station should be established in said congressional districts, respectively. It appears from the petition of the relator that some if not all of the privileged congressional districts, availed themselves of the benefit of the provisions of the act, while the citizens of the fourth delayed until July 5th, 1897. Suppose this district had delayed ten or twenty years, and then complied with the terms of the act. Could it be reasonably contended, that it would then be entitled to receive an equal amount of money with the stations and schools which had been operated and bestowing during these years the public benefits intended by the statute ? Section 5 directs that the money shall be paid quarterly, thus clearly showing that the appropriations were in contemplation of established schools and experiment stations.

We find no reference in the petition, nor in the brief of counsel for appellant, to the act of the legislature approved January 30th, 1897. — Acts, 1896-97, p. 465. By tíre first section of the statute twenty-five hundred dollars is appropriated to each of said schools and experiment stations, to be paid quarterly; and by section 10 of said act, it is provided that none of said schools shall receive the appropriation, “unless such'school shall be actually conducting an agricultural experiment station and agricultural school,” etc. We feel confident in our conclusion that the intention of the Legislature was to aid schools and stations, established and being conducted according to its provisions.

It appears also that by the act of February 16th, 1887, (Acts of 1886-87, p. 828), and the act of February 28th, 1889 (Acts of 1888-89, p.119, also p. 729), that the proceeds derived from sale of fertilizer tags are subject to other demands, than those mentioned in the petition of the relator. These are public statutes of which, the courts take judicial notice. The petition does not give the court facts which will enable it to say the precise amount, if any, that relator is entitled to receive.

The demurrer raises the objection also that the relator has not shown a case in which he is authorized to use the name of the State. Mandamus being a civil remedy, parties in interest are the only proper parties, when such interest pertains only to private rights. By statute the money is made payable to the treasurer of the board. The appropriation is by the legislature and for the public good. We are of opinion this objection is not well taken.

For the other reasons stated, the demurrer to the petition was properly sustained.

Affirmed.