Kayser v. Bird

74 So. 49, 199 Ala. 83, 1917 Ala. LEXIS 148

• Court: Supreme Court of Alabama
• Decided: February 1, 1917
• Status: Published

Opinion

SOMEBVILLE, J.

— Section 8 of the act approved April 22, 1911 (Local Acts 1911, pp. 341, 343), relating to the public roads of Shelby county, is as follows: “The county treasurer is hereby designated as the person to collect the road fund provided for in this bill, and he shall attend the places designated by the tax assessor and collector for assessing and collecting the state and county taxes in the various beats of said county. The said county treasurer shall have printed at the expense of the county receipt books with stubs or duplicate of such receipt which shall be at all times open to the inspection of the public. And the ' county treasurer shall keep said three dollars road fund, and any other road fund appropriated by the commissioners of said county or board of revenue out of either the general or special funds collected for said county, separate from all other funds, and ■ shall pay out the same on the warrants drawn by the commis- ■ sioners court or board of revenue of said county.”

It is the theory of defendant’s special pleas 24 and 35, that the amended section substitutes the tax collector for the treasurer, not only as the agent for the collection of the special road . tax, but also the permanent custodian of the fund after it is collected; and hence the conclusion that, whether the fund has in - fact been paid over to the treasurer or not, the collector remains its custodian de jure et lege, and it is not payable upon a warrant drawn upon the treasurer. At first sight such may indeed . seem to be the purpose and effect of the amendment in question. But our consideration of the language of the amended section, and its relation to the general laws, leads us to a different conclusion. — Section 2206 of the Code is: “Whenever any tax collector collects any'special taxes, he shall specify in the receipts given to taxpayers the amount of such taxes, and the purpose for which they were levied and collected.”

Section 2207 is: “Such special taxes, when collected, must be paid over by him to the county treasurer, and be kept by him as a distinct fund.”

Section 2208 is: “The county treasurer receiving such special taxes shall keep the same separate and distinct from all other public funds, and shall keep a separate account thereof, and shall promptly disburse the same upon orders drawn thereon by the legally authorized authority.”

And section 22C0 provides for a report by the county collector to the county treasurer, within the first three days of each month until his final settlement for the year, “setting forth separately the taxes collected by him * * * during the preceding month,” and requiring him, within five days thereafter to “pay to the county treasurer all county taxes then due from him to the county, by him before that time collected.”

We find nothing in the language of the amended section that indicates a legislative intent to change these general laws in the particular referred to. To require the collector to keep the special road fund separate from other funds falls very far short of requiring or authorizing him to keep it permanently as its final and only custodian. Under the general statutes quoted, he must need “keep” the fund as collected from month to month, until he pays it over to the treasurer; and the natural meaning of the amended section is that, while the fund is in his hands, he, like the treasurer, must keep it separate from other funds. It follows that the county treasurer, the defendant, is the lawful custodian of the fund here sought to be subjected to plaintiff’s claim, and the warrants are properly drawn upon the treasurer to that end.

We hold that the demurrers to special pleas 24 and 85 should have been sustained, and the judgment of the trial court in overruling them will be reversed, and a judgment here rendered accordingly.

We pretermit, as unnecessary, any discussion or decision as to the constitutionality of the Amendatory Act of September 4, 1915, since the pleas attacked are bad on other grounds.

Reversed, rendered, and remanded.

Anderson, C; J., and Mayfield and Thomas, JJ., concur.