117 Ala. 232 | Ala. | 1897
The act of the General Assembly, approved February 18, 1891, (Pamph. Acts, 1890-91, p. 1139), authorizes any person who by mistake has paid taxes which he ought not. to have’ paid, to apply to the commissioners’ court to have such taxes refunded. Upon such application being made, and the mistake being established to the satisfaction of the court, they may direct and order the probate judge to draw a warrant on the county treasurer in "favor of such person for the amount of county taxes shown to have been so improperly paid ; and the court may authorize the probate judge to certify to the Auditor such mistake and the amoúnt of- State taxes which have been so improperly paid. On the presentation of such certificate to the Auditor, if he finds the same correct in fact and amount, it is his duty to draw his warrant on the State Treasurer for the amount so certified by the probate judge, which is payable from any funds in the treasury not otherwise appropriated.
The appellees presented to the commissioners’ court of the county of Jefferson, an application for the refunding to them State and county taxes for the years 1891,1892, 1893, on certain real estate, which by mistake were paid twice. On the healing of the application, the court adjudged the relators were entitled to have the excess of taxes refunded, and ordered the judge of probate to'certify to the Auditor such mistake and the amount of State taxes improperly paid. On the presentation of the certificate to the predecessor of the appellant, he refused to draw a warrant on the treasurer for the amount so certified.
Thereupon, the appellees filed in- the court below, a petition for a writ of mandamus commanding the drawing of such warrant, alleging the forpgoing facts, and further alleging, that the refusal to draw the warrant was arbitrary, without auy suggestion or claim by the Auditor that he found anything incorrect in said certificate or order, or that there was any error in fact or amount as shown by said certificate and order, or otherwise, The Auditor appeared in answer to the alterna'
The statute is intended to provide the tax-payer, who by mistake has paid taxes he ought not to have paid, a speedy, inexpensive remedy to reclaim the money from the State and county treasury into which it' has passed. It is the successor of preceding statutes having a common object — the promotion of justice and equity between the State and the county and the tax-payer. If by mistake, whether of law or of fact, the State or county has through the medium of taxation received the money of the tax-payer to which it was not entitled, exequo etbono, it is but natural right and justice that the mistake should be corrected and the money refunded. The commissioners court-'of the county in which the taxes were assessed, levied and paid, has on its files the assessment book and the reports by the tax collector of all taxes which have been paid, and of all which are unpaid, and is the tribunal of peculiar fitness to ascertain the facts the statute requires shall be ascertained, before the judge of probate is authorized to draw a warrant on the county treasurer for the amount of the county taxes, and before authorizing him to make the certificate to the Auditor. When the facts have been ascertained — j udicially ascertained — and properly certified to the Auditor, the statute would not accomplish its plain and manifest purpose, as to the taxes which had passed into the State treasury, forming part of the adjudication of the court, if the duty of the Auditor is discretionary — if he could in the exercise of his own judgment withhold the war
When the claim is ascertained by the court of county commissioners, it passes beyond the form-of an account —it is .established by the judgment of the court, and needs no verification or itemization. The judgment imports and, until impeached in a proper mode and by proper procedure, is the absolute evidence of its own verity. The statute (Code of 1886, § 109 ; Code of 1896, § 2008), to which we have referred, manifestly has reference to special claims against the State, remaining in the form of open accounts, and not to claims the amount of which have been ascertained and declared in the course of judicial proceedings before and by a court of competent jurisdiction. Besides, the want of verification and itemization, was not the ground of the refusal of the Auditor to draw the warrant, and we are not inclined to the opinion, if there was any force in the objection, that he could now be heard to make it.
We find no error in the judgment of - the city court, and it must bo affirmed.