Smith v. Tennesse Coal, Iron & Railroad

MAYFIELD, J. This is an appeal from a judgment or an order of the city court of Montgomery awarding a writ of mandamus to compel the state auditor to draw a warrant on the state treasury for certain license or privilege taxes paid by appellee to the probate judge of Jefferson county under and by virtue of a state statute or statutes which have been declared void by the Supreme Court of the United States in the case of Southern Railway Company v. Greene, 216 U. S. 400, 30 Sup. Ct. 287, 54 L. Ed. 536, 17 Ann. Cas. 1247, because in violation of the federal Constitution. The application for mandamus practically followed the appli [132] cation in the case of Bigbee Fertilizer Company v. Smith, State Auditor, 186 Ala. 555, 65 South. 37, and the appeal is affirmed on the authority of that case, except, as to some other question insisted upon, not insisted upon, or not occuring, on the appeal in that case. The application was heard on an agreed statement of facts, which will be set out by the reporter in his report of the case. As was said in the case above referred to, the application is based upon section 2411 as amended by Acts 1909, p. 165, and section 2412, of the Code of 1907. We feel sure that the vase made by the petition, and which is in every respect supported or proven by the agreed statement of facts, makes a case within the protection of the statutes. (1) If it was, as it appears, the clear duty of the auditor to issue the warrant'in accordance with the. certificate of the probate judge, as is authorized and required by section 2412 of the Code, and demand was made upon him to issue, and he- failed and refused to issue the warrant, then mandamus is the proper remedy to compel him to- so- issue the warrant. (2) As before stated, all these facts necessary to warrant the writ are agreed to in the agreed statement of facts, and were not therefore contested in the lower court, and cannot he contested here, for the first time, under such circumstances. It is insisted in argument by the state that some part of the money might have been collected under another and valid statute. The trouble with this contention is that the petition alleges, and the statement of facts admits, that the money was paid under void statutes and not under valid ones. Nor does the respondent’s answer set up or claim that the tax can or should be held under any other statute. [133] (3) It is also insisted that the payment was voluntary, and not compulsory, and that therefore appellee was not entitled to have it paid hack. The trouble with this contention is that the statutes do not make involuntary payment, or payment under protest, a prerequisite to the right to have money wrongfully exacted paid back to the taxpayer. The money was paid and collected under what purported to be a valid statute, but which was, in law, not valid; hence it was paid under a “mistake or error” of the probate judge, and was within the meaning of the statute. (4) The certificate of the probate judge was in all things sufficient, as required by section 2412 of the Code. (5) There is nothing in the contention that the title of the act amending section 2411 of the Code did not and could not embrace the provisions contained in the body of the statute, and which were held to be embraced within it in the Bigbee Fertilizer Case, supra. We find no error, and the judgment must be affirmed, and the writ awarded. Affirmed. Anderson, C. J., and Somerville and Gardner, JJ, concur.