a special tax to fund construction was valid to the extent that the debt limit was not exceeded
How later courts described this case
- a special tax to fund construction was valid to the extent that the debt limit was not exceeded
Written by the judges who cited it.
The opinion
On Rehearing.
McCLELLAN, J.
[10-12]
The substantive right of the appellee to the fund in question is conceded to be as the foregoing opinion defines it. The two matters now reargued were given due consideration on original review of the appeal. The right of the warrant holders to be paid—in their proper order and according to the preference .established by the contracts. mentioned—out of the special funds pledged to their orderly satisfaction in the manner prescribed in the contracts (a process that consisted with the law in effect at the time and that was observed in the issuance of the warrants), was not affected in any degree by the subsequent enactment of the law creating depositories; nor was the remedy by mandamus to enforce their right to be appropriately satisfied out of the pledged "special fund subjected by the depository law to any condition not present when that law was enacted. It affirmatively appears from the agreed statement of facts that the claims in question were audited and allowed by the commissioners’ court; warrants were ordered by the commissioners’ court to be issued therefor by the judge of probate; and they were accordingly issued; all as- the contracts provided. The warrants so is
*405
sued were as effectual a direction to the .depository to pay as could be desired. Acts 1915, p. 349, first clause in section 5. Certainly, under these circumstances, no other demand upon the county body was required or could be exacted, unless the 'failure or refusal of the depository to pay gave rise to a further duty on the part.of the warrant-holder. The decision in Parker v. Hubbard; 64 Ala. 203 , is not an authority for a conclusion that any further duty was imposed upon the warrant holder by the dereliction of the custodian of the fund. In Parker v. Hubbard the effort was to compel the clerk of the county body to issue a warrant, not to pay a warrant already issued, under l^w that commanded the county body to “draw their warrant” in favor of Parker, and the writ of mandamus was sought, primarily, against the mere clerk of the body, upon whom the law had not imposed the duty to issue the warrant; the court deciding that, before resort to mandamus, recourse should have been had, upon refusal by the mere clerk, to the county body to move that authority to perform the duty the special act had injposed on the body, not the clerk. Here, section 5 of the depository act imposed the duty to pay on the depository by defining that duty in the general terms of the law. that governed county treasurers. While a depository is not a public officer, in the common acceptation of that term (Compton v. Marengo Bank, 82 South. 159 ;
2
Ex parte Underwood Typewriter Co., 82 South. 158
3
), a depository is a eontractee with positive law-imposed, ministerial duties, performance of which may be compelled in proper cases by the writ of mandamus. As held on original consideration, there was no obligation on the petitioners to make any other demand or to invoke further action by the county body in order to entitle them to the writ, provided, of course, their right to the writ was established in other respects.
The application is denied.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
2
Ante, p. 129.
3
Ante, p. 128.