Commissioners' Court of Tallapoosa v. Tarver

GOLDTH WAITE, J. — The act of the Legislature of the 13th of February, 1843, (Acts 1843, 134,) which, provided that it should be lawful for the Court of Commissioners of Roads and Revenue of the county of Tallapoosa to impose such a tax, in addition to the tax laid for county purposes, as should be necessary to pay any amount of money that the court-house commissioners should be liable to pay for building a court-house and jail in said county, was construed by this court on a previous adjudication of this case (17 Ala. 527) as compulsory on the Commissioners’ Court of Tallapoosa county, to levy the amount required to discharge the liabilities of the court-house commissioners; and it was also held, upon demurrer to the petition of the relator, that sufficient appeared upon the face of the petition to entitle him to the relief sought. The only question now presented is, as to the sufficiency of the return; and it is insisted in argument, that the return is insufficient in not being verified by the oaths of all of the defendants. This objection cannot prevail. The return which is made to the alternative writ we do not understand is required to be verified by the oath of the party. It is taken as true by the court; and, in the absence of any statute providing for traversing the return, the party injured must proceed for the false return, and if found to be false by the jury, he recovers damages equivalent to the injury sustained, together with a peremptory mandamus to the defendant to do his duty. 3 Black. Com. 111. Several distinct and separate grounds are 'taken in the answer, as a justification on the part of the defendants below in not levying the tax; but there is no error in this, as the statute (Clay’s Dig. 332, § 109,) allows the defendant, in all cases, to plead as many matters as he thinks necessary to his defencej and we see no good reason why this act should not appíy to "proceedings by mandamus, as well as to other causes •hit law. The terms are broad enough to admit of this construction, and the evils which were intended to be removed by its enactment would be but partially suppressed, if the [668] beneficial operation of the statute was to be confined to common law actions commenced by original writ. The same reasons exist for its application to cases lilce the present, as in other cases at common law. If, therefore, any one of the gi’ouncls which hare been taken by the defendants below would, of itself, be a 'sufficient answer to the petition, it follows, that the writ should not have been allowed, and that the judgment of the court below, in quashing the return, was erroneous. In relation to the degree of certainty which is required in the pleadings in cases of mandamus, the English rule has been somewhat relaxed since the statute of Anne, ch. 20, which allows the facts stated in the return to be traversed and tried by a jury. 1 Evans’ Stat. 176; Stephens’ Nisi Prius, 2330; but, as in this State no such statute is in force, the facts must be pleaded with such a degree of certainty as to enable the court to decide whether they are, in law, sufficient to justify the party in failing to do the act. Under the rules we have laid down, that portion of the return which goes to the insufficiency of the buildings cannot be sustained. The act of 1843 was passed after the liability of the commissioners accrued, and that liability, as the petition alleges, was fixed by the judgment; but independently of this, there is nothing stated in this head of the answer that shows with certainty and precision that the relator was not liable. The contracts may have been entered into, and the court-house and jail received by the other commissioners, and in relation to duties of this character the acts of the majority are binding. Caldwell v. Harrison, 11 Ala. 755. But again, there is no averment as to what the buildings were actually worth; no averment of the precise amount which the relator or the other commissioners have received. It would be impossible to render a judgment upon a plea as defective as this is. The second head is equally defective. There is no principle upon which the relator could be held responsible for the acts or defalcations of the other commissioners. Independent of the manifest injustice which would be worked'’it would be'difficult to find any person, if this construction was to prevail, who would take upon himself public duties in connection with [669] others. If the other commissioners received anj portion of the proceeds of the lots, and failed to apply them to the erection of the public buildings of the county, as they were by law required to do, it furnishes no reason for failing to levy the tax which was necessary to discharge the liability of the relator, leaving it to the county to assert its claim against the defaulting commissioners in the manner provided by law. Clay’s Dig. 578, § 15. It is not alleged, that the relator has collected a sufficient amount of the funds provided for thé erection of the county buildings to pay for the same ; but the averment is, that that amount has been collected by him or the other commissioners, and the amount which it is averred has been collected is not stated. Unless the amount has been received by the relator, it is not an answer to the application. The third ground which is taken is, that the relator is not entitled to fees, costs or expenses for the defence of the suit. If the commissioners, acting in good faith, regarded it as necessary to defend the suit commenced against them, it was their duty so to do; and the expenses legitimately incurred in the discharge of their public duties, properly constitute the liability intended to be covered by the act of 1843; and such we understand to have been the decision of this court when the case was last before it. 17 Ala. 527. The fourth, fifth and sixth grounds, as stated in the answer, are also defective; the fourth being entirely inferential, in drawing the deduction that no account had been presented, from the fact that no evidence, petition or motion was to be found upon the files of the court, the averment in substance being simply, that no proper application had been made; while the other two are defective in that degree of certainty which is required, as well as in stating legal conclusions rather than facts. The seventh and last ground of the return, however, we consider as well taken. By the act of 1843, before referred to, it was made the duty of the Court of Commissioners of Eoads and Revenue of Tallapoosa county to impose a tax sufficient to discharge,the liability of the court-house commissioners of-that county; but in order to impose this tax, it was necessary that the court should be advised of the extent of the liability which the tax was intended to meet. The ac [670] tion of the court-house commissioners was entirely independent of the Court of Commissioners of Eoads and Beveuue, and, upon a proper construction of the act which required the tax to be levied, we are satisfied that it was incumbent on the relator to have established his liability, before he could call upon the Commissioners’ Court to levy a tax for the purpose of discharging it. It certainly could not have been the intention of the Legislature, to require the court to act without any authentic information before it to regulate its action upon. The proper course for the relator to have pursued would have been, to prove to the court the extent of his liability; and if, upon making that proof, the court refused to assess the necessary tax to discharge it, the performance of the duty could be compelled by a mandamus. The answer, in this respect we think, is full and sufficient. It shows, in substance, that no information has been afforded to the court as to the extent of the relator’s liability; that no demand for any liability has been presented or proved by him, or on his behalf; and it avers, that if the court has ever refused to make an allowance or appropriation to meet the liability, it has been for these reasons. This ground we consider a full justification for the defendants in refusing to act, and this being the case, it follows, that the court below erred in quashing the return; and as the return must be taken as true, and cannot be traversed, the judgment must not only be reversed, but judgment here rendered dismissing the writ.