Palmer v. Fitts

51 Ala. 489

• Court: Supreme Court of Alabama
• Decided: June 15, 1874
• Status: Published

Opinion

BRICKELL, J.

In a summary proceeding of this character, the notice serves the double purpose of process and pleading, and is amendable under the same rules governing the amendment of a complaint in an ordinary action. Walker v. Turnipseed, 8 Ala. 679; Jemison v. P. & M. Bank, 23 Ala. 168.

2. The claims on which the motion is founded, were due to the plaintiff as former county solicitor of Tuskaloosa county, on convictions of defendants proving insolvent. The general law declares that these claims shall be paid out of the fines and forfeitures in the county treasury. R. C. § 4343. The claims of State witnesses are entitled to priority of payment from this fund. A statement of the fees is required to be rendered on oath to the county treasurer, setting out the style of each case, and the term at which judgment was rendered. R. C. §§ 4438-9. No other authentication or verification of such claims is necessary. The fines and forfeitures do not arise from taxation. The court of county commissioners has no control over them. No claim created by that court can become a charge on them. Without special legislation, such/daims as are by law chargeable on the fines and forfeitures, are not in any event payable out of tbe general funds of tbe county. In tbe filing and registration of the claims payable out of the .fines and forfeitures, it is not necessary that they should be allowed by the court of county commissioners. It is only claims for which that court is bound to provide means of payment, and which are chargeable on the general treasury of the county, that must be presented to, and allowed by the commissioners’ court, before the county treasurers can pay them. The notice was not, therefore, demurrable, because it did not aver these claims had been audited and allowed by the commissioners’ court.

3. The notice would possibly be subject to some of the grounds of demurrer specified, if the payment of the claims depended only on the general law. But the general assembly, by a special act, required the county treasurers to pay the claims of the appellee out of any moneys in the treasury not otherwise appropriated, if they had been filed Avith tbe treasurers. Pamph. Acts, 1871-2, p. 397. The notice alleges that the claims had been filed with the treasurer, and that payment of them had been demanded, and that when such demand was made, there were funds in the treasury, not otherwise appropriated, sufficient for their payment. Every fact on which the appellee’s right of payment depends, and every fact necessary to put the treasurer in default, is averred.

It is urged, however, that the special statute is without the legislative power, and is void. We cannot concur in this view. A county has some of the characteristics of a municipal corporation ; but it is rather a political organization, to which the State entrusts, for the public welfare, defined functions and powers.. Whatever moneys it has the capacity of raising, for the payment of county claims, are held in its political, not its corporate capacity. These funds are raised by authority of the legislature; and the purposes to which they are devoted, are of legislative determination. No right of the citizen is invaded, because the legislature may, after these funds are raised, appropriate them to claims not chargeable on them Avhen they were collected. The law creating the fund, and directing its appropriation, is subject to repeal, alteration, or amendment, at the Avill of the legislature. The legislature had full power to enact the statute. It was simply an appropriation of public moneys, over which they have absolute control, except as qualified by express constitutional provision. The act is valid, and under the facts stated in the pleadings, entitled the plaintiff to a recovery. Dillon on Mun. Cor. §§ 34-6; Police Comm’rs v. St. Louis, 34 Mo. 546.

There is no error in the record, and the judgment is affirmed.