Tarver v. Comm'rs' Ct.

17 Ala. 527

• Court: Supreme Court of Alabama
• Decided: January 15, 1850
• Status: Published

Opinion

DARGAN, C. J.

An application for a mandamus will only be granted when the petitioner shows a clear legal right and, there is no other legal remedy to enforce it. — Exparte Jones, 1 Ala. 15, and cases there cited ; Cuthbert et al. v. Lewis, 6 Ala. 262 ; Spence v. Terry, 13 Ala. 805. We have therefore only to enquire whether the petitioner has shown a specific legal right and whether the law'has provided any other remedy to enforce it. If the right is shown and there is no other remedy, the writ ought to be granted.

By the act of the 12th of January 1833, commissioners were appointed for the county of Tallapoosa with power to contract for and recieve in behalf of the county one hundred and sixty acres of land for the purpose of erecting public buildings for the use of the county. They were authorised to contract for the building of a court-house and county jail, and were required to superintend the work; and the commissioners’ court were required to levy a tax to pay the expenses of the buildings, if the proceeds of the sales of lots, that the commissioners were authorised and required to sell, were insufficient for that purpose. By the act of the L4th of January 1 834, other commissioners were appointed, with the same powers. By the act of 1S41, other commissioners were appointed, amongst whom was the petitioner, and from the preamble of the act it appears that these commissioners had in 1837 without authority proceeded to perform the duties required by law of the commissioners before that time appointed. But this act confirms all they had done and invests them with the same powers that had been given to those previously appointed. It also authorised them to collect and reeieve all monies due for town lots and to apply the same to the erection of the court-house and jail, allowing them compensation for their services. By an act passed the 13th February 1843, it is enacted, “ That it shall be lawful for •the commissioners’ court of roads and revenue of the county of Tallapoosa to impose such tax in addition to the tax levied for county purposes, as may be necessary to pay :any amount of money that the court-house coipmissioners of said county may he liable to pay for building the court-house and jail. Under the authority of these several acts, the petitioner with the other commissioners contracted with Camerpn & Mitchell for the erection of the county buildings, agreeing to pay them $18,000. The buildings were completed and were recieved and used by the county. The petitioners paid from the proceeds of the sale of the lots the amount agreed on, less the sum of thirty-five hundred dollars. This amount they declined paying on the ground that the work was not completed according to conrlact. A suit was instituted against them and a judgment finally rendered for twenty-five hundred dollars. The commissioners’ court has levied a tax and paid a part of this judgment, but refuses to pay any more or to levy a tax for that purpose. It is also shown in the petition that the plaintiff has expended his own money in the defence of the suit and superintending the work. These are the material allegations of the petition, to which there was a demurrer, which -was sustained. We think it very clear that it is the duty of the commissioners’ court under these facts to levy and collect a tax sufficient to pay the amount of the judgment still unpaid, as well as such amount as may be justly due to the petitioner, and that he has the legal right to demand of them the performance of this duty. It is not to be understood that the act of 1843 gives to the commissioners’ court a discretion to levy a tax for this purpose or not, as they may see fit. It is true the language of the act is, that it shall be lawful for the commissioners’ court to levy a tax, &c.; but it is well settled that the word may, or the words, it shall be lawful, are peremptory when used in a statute, where the public or an individual has a right de jure, that the powers confered by the act should be exercised. — Exparte Simonton, 9 Porter, 390; 1 Ver. 152; 5 John. Ch. Rep. 113. The facts set forth in the petition, and which we are to consider as true, as they were demurred to, show that the petitioner has a legal right to require the commissioners’ court to levy and collect a tax sufficient to pay the amount due on the judgment, as well as such sum as the petitioner has paid, if any, on account of his individual liability as commissioner, incurred in the discharge of his duties as such. This is his legal right, and there is no-other remedy by which it can be enforced — consequently a mandamus is the proper remedy.

In the condition in which the cause is now presented to us, we cannot examine the question raised by the argument of the defendants’ counsel, whether the petitioner is bound for the public money that may have come to the hands of the other commissioners and not accounted for by them? This, as well as any other questions respecting the amount due, can only be examined upon a trial of the merits. But the facts set forth in the petition entitle the plaintiff to the writ, and the court erred in sustaining the demurrer.

Let the judgment be reversed and the cause remanded.

Chilton, J., not sitting, having been of counsel before his election to the bench.