61 Ala. 318 | Ala. | 1878
J. G. Weaver, tax-collector of Chambers county, settled and closed his account as tax-collector, for the fiscal year 1875, with Robert T. Smith, former Auditor, and received his discharge. Smith went out of office, and Willis Brewer, present Auditor, succeeded him. In making up the account of said tax-collector for the fiscal year 1876, Brewer reexamined the account for 1875, came to the conclusion that certain items of debit, properly chargeable to Weaver, had been omitted from the account of 1875, and he thereupon embraced those items of charge in the account of the tax-collector for the fiscal year 1876 — thus increasing the latter account by the sum of $>1629.43. Such are the aver
The office of Auditor, though filled by successive incumbents, is a continuous thing. Each of the several incumbents has the same powers, and only the same powers. Neither is clothed with revisory powers over the other. When an Auditor states and certifies an account against a tax-collector, it becomes, prima facie, a correct account. A re-statement by a subsequent Auditor can only be prima facie correct. Which prima facie, or presumptive proof shall overcome the other? The law has not declared that the later stated account shall prevail over the former. The law has said nothing on the subject. Is it implied in the nature of the duty? Many reasons, in addition to those stated above, combine to force us to the conclusion that the Auditor had no power to correct errors he may detect in the accounts stated, certified
What we have said has been drawn from our own construction of the statutes, and the nature of the duty cast upon the Auditor. Our conclusions are supported by ample authority. In Ex parte Randolph, 2 Brock, 447, Randolph was a lieutenant in the navy of the United States, and had officiated as acting purser of a national ship on the Mediterranean. On his return to the United States, he had settled his account at the proper department in 1828. In 1833 the then Fourth Auditor opened and re-stated his account, on the ground that it had been erroneously stated and settled in the first instance, and the account as re-stated exhibited a large balance due from Randolph to the United States. To enforce the collection of this certified balance, Auditor’s warrant was issued — process which was authorized by law— and Randolph was arrested thereunder. He applied for enlargement on habeas corpus. The court ruled that the account of the petitioner, having been once stated and settled at the treasury department, the law invests the Auditor with no power to open and re-settle it. Randolph was discharged from custody. The court ruled, however, that their construction only relieved Randolph from amenability to the summary, statutory process of distress, and did not prevent a recovery against him in proper legal proceedings, if he had not, in fact, duly accounted for the money which had come to his hands. In the case of U. S. v. Bank of Metropolis, the claim against the bank was for deposits made therein by the Postmaster-General. The bank asserted certain claims against the postoffice department, which were audited and allowed, and the claim against the bank was thus neutralized and set off. After the then Postmaster-General went out of office, his successor re-stated the account, disallowing the bank’s credits which had been allowed by his predecessor, and thus showed a large balance against the bank. Upon this balance suit was brought, and the question arose on the authority of the succeeding Postmaster-General to reexamine and re-state the account against the bank. In the opinion of the court is the following languagé: “ The third
In the case of Board of Supervisors v. Ellis, 50 N. Y. 620, a question arose as to the power of a succeeding board to review and re-adjudge the action of their predecessors. The court said, “ Doubtless, if a board of supervisors at one time acts finally upon a matter of which they have jurisdiction, and as to which they have lawful right to act, a succeeding board may not undo what they have done, to the immediate detriment of third parties.” — See, also, Board of Supervisors v. Briggs, 2 Denio, 26.
In the case of Hobson v. Com., 1 Duvall, 172, an attempt was made by a succeeding Auditor to correct an alleged mistake of his predecessor, in settling with the sheriff, who was tax-collector, for revenue collected by him. Speaking of the acts of the Auditor, as affecting the State, the court said : “He was her accredited organ, with full power and discretion to settle, and record as settled accounts of sheriffs for revenue due to her. . . . His adjustment once closed and registered by him, was made conclusive, unless changed by a direct judicial proceeding for the purpose o£ correcting any error or mistake committed by him.j^. . .
The result of what we have said is, that, according to the averments of the petition in the present case, the account against "Weaver, stated and certified in the Auditor’s office, is larger by the sum of $1,629.43 than the Auditor was authorized to raise, by his certificate to the dignity of “ presumptive evidence.” Is this a case for mandamus? "We have shown that "Weaver has a specific legal right. Is there no remedy, other than mandamus, adequate to the enforcement of that right? — 2 Brick. Dig. 240, § 4. If suit were
The bond of the tax-collector operates “ from its execution as a lien in favor of the State and county on the property of such tax-collector for the amount of any judgment which may be rendered against him in his official capacity for the State or county taxes, and on the property of his sureties, from the date of his default.” — Code of 1876, § 403- It is contended for petitioner that this lien constitutes such an incumbrance or cloud on the title of the property of both principal and sureties on the collector’s bond, as to-impair, if not to destroy its vendibility; and that on this account, mandamus is the only adequate remedy to remove the cloud, and relieve the property from the incumbrance. It will be seen, in what is said above, that the Auditor’s statement of the items brought forward from a former year does not prove its correctness, or raise the presumption of its correctness. If he were to certify such re-stated account as correct, his certificate as to the items brought forward would have no effect whatever. It would prove nothing. But the Auditor can certify the itemized account made by his predecessor; and if such stated, itemized, settled account show on its face errors of calculation, or other patent errors, we are not prepared to say such certified past-stated accounts would not
Judgment of the City Court affirmed, and mandamus denied.