Cuthbert v. Lewis

ORMOND, J. To a proper understanding of this case, it is necessary to take a succinct view of the several statutes which bear upon the question. The general law of 1823, [Clay’s Dig. 600, § 7,} makes the certificates of witnesses on behalf of the State, in criminal cases? receivable in payment of public dues, and requires the county treasurer to pay off and discharge them, out of any fines and forfeitures which may come into the county treasury. The private act of 1836, for the establishment of schools in the city of Mobile, gives the fines and forfeitures, and the tax fee of two dollars for the support of schools in the county of Mobile; the proviso to the 11th section, requiring the clerk of the circuit-court to retain and pay over, out of fines and forfeitures and tax fees on writs, a sufficient sum to pay witnesses on the part of the State. The public act of 1839, [Clay’s Dig. 579, § 19,] makes it the' duty of the circuit clerks, on issuing witness cirtificates, when the' State fails to convict, or the defendant is unable to pay the costs,to endorse that fact on the certificate, as evidence that it is a-county charge. Thus the law stood until the passage' of the act of 1843, to regulate the expenditures of the county of Mobile.- The 1st section [266] declares, that all monies arising from fines and forfeitures, shall be paid into the county treasury. The 3d section provides, that the attendance of witnesses on the part of the State, shall be a charge on said fund. By the 7th, the clerks are required to keep an accurate account of all State witnesses and jurors certificates, and immediately upon the adjournment of court, to make out a complete statement, and furnish the same to the county treasurer. The 9th section prohibits the county treasurer from paying over any money, but in pursuance of an appropriation by the proper court. The 12th section requires the county court to appoint three commissioners to inquire into the amount of debt due by the county, and the evidence in support of it. That they shall give notice for all persons having claims, to present them— notice to be given for six weeks, and a day appointed for hearing the claims— all claims not presented in three months to be barred; and it shall be their duty to determine upon the validity of each and every claim so presented, and to make a report on the same, 'to the commissioners of roads and revenue, and airy claimant, when the claim shall be rejected, may appeal within ten days from the decision of the commissioners to the county court, where the matter shall be heard de novo, and in case of a rejection, not appealed from, the claim shall be forever barred. [Pamphlet Acts, page 77.] By this act, the Legislature appears to have made an effort to rescue the subject from the obscurity in which it was envel-loped by the previous mass of legislation. We propose to consider, first, the design of the appointment of the commission to investigate and pass on the validity of outstanding claims — was its decision, that the claim was valid, binding on the court of roads and revenue? This question is certainly not free from difficulty, but we incline to the opinion that it was. The commissioners were to inquire into the validity of the claim — the claimants were bound to present their claims within a certain time, or the claim was barred, and their rejection of the claim, not appealed from, in ten days, was final against the claimant. These attributes of this court, for such in effect it was, would hardly have been conferred upon it if it was not intended, that its action should conclude the county. Nor does it affect this conclusion, that the county was not allowed an appeal It is the case of the body politic, submitting claims against itself, to the determination of its own tri [267] bunals, to which it is presumed it may always confide its interests. But a more conclusive reason still is, that if the commission decided against the claimant, he might appeal to the county court, where the matter was to be tried de novo, and if the judgment of the commission was reversed, and the claim confirmed, certainly that judgment was binding on the court of roads and revenue, yet no reason is perceived why more conclusiveness should be accorded to a judgment of one tribunal than the other, in favor of the claimant. Was the decision of the commission in this case, such an one as could be appealed from. The extent of their power was “to determine on the validity of the claims presented;” with the fund out of which the claim was to be paid, they had no concern; that was a matter not left to their judgment, but to be ascertained by the law making provision for the payment of such claims. The effect of their judgment was, therefore, merely that the claims were valid — their declaration of the fund out of which it was to be paid, was an assumption of power not conferred on them, and therefore, not binding on any one, although in this instance, correct. From this it results, that the county court had no jurisdiction of the appeal, and its judgment, thereupon, is a nullity. The question then returns, out of what fund were these claims payable. The general law is, that State witness tickets shall be paid out of the fund arising from fines and forfeitures in the county treasury: [Clay’s Dig. 600, § 7,] they were therefore, not a general cousty charge. This was not changed by the act of 1836, for the establishment of schools in Mobile. That fund was still preserved for the payment of such claims, and the surplus only, if any, to be paid to the school commissioners, and it is very unimportant to inquire, whether the surplus was paid into the county treasury, or directly, by the clerk of the circuit court, to the school commissioners. No change whatever was made in the law', in this respect, by the act of 1843. The first section directs the monies arising from fines and forfeitures, to be paid into the county treasury, and the third section declares that the attendance of State witnesses shall be a charge on said fund. This was then merely a restoration, or more properly, a re-enactment of the general law. From this examination, the following conclusions have been attained. That the decision of the commissioners was final, in favor [268] of the claimant — and that it became a charge on the fund in the county treasury, arising from fines and forfeitures. But as the 9th section of the act of 1843, forbids the county treasurer to pay over any money but in pursuance of an appropriation by the proper court, which is the court of roads and revenue, and as that court, on application, has refused to make it, we come to the consideration of tiie question, whether a mandamus was the proper remedy. A mandamus will lie whenever the party has a clear specific legal right, and no other specific legal remedy adequate to enforce that right. [Jones, exparte, 1 Ala. Rep. 15, and authorities there cited.] Thus, where an ancillary attachment was improperly dismissed, a mandamus is the appropriate remedy. [Boraim & Co. v. DuCosta, 4 Ala. 393.] So, where a nominal plain-* tiff was improperly permitted to dismiss a suit. [Brazier v. Tarver, ib. 569.] Also, where a motion for a new trial was contin-* ued, and at the succeeding term, the court refused to hear it_ [Bridges & Beers v. Miller, 3 Ala. 748.] It is true, that in a case where the inferior tribunal has a discretion, it will merely be required to act, and this court would not, by mandamus, prescribe the judgment it should render; but that is not this case. The defendant in error has a clear legal right to an order on the treasurer for the amount of his claims found by the commissioners to be valid, and the court of roads and revenue have no discretion, but should make the appropriation, in order that the treasurer may be authorized to pay the money, if in the treasury. The order of the circuit court, therefore, directing the court of roads and revenue to make the necessary order for the payment of the claims, out of the fund arising irom fines and forfeitures, was necessary and proper. It is not material that it does not appear that the clerk of the circuit court made the endorsement on the certificates, required by the act of 1839; all inquiries of that kind are foreclosed by the decision of the commissioners, adjudging the claim to be valid, Let the judgment be affirmed.