The opinion
McCLELLAN, J.
I concur in the conclusion on this appeal on the ground that the appellant had the right to elect whether he would invoke mandamus to compel the county treasurer to pay the warrant in question, validly issued as it clearly was, out of the funds so illegally gathered, or to proceed summarily, as was done in this instance, against the officer and his sureties as for the breach of his official duty to pay the *240 warrant. —Wyker v. Francis, 120 Ala. 509, 519 , 24 South. 895 , et seq. The reasoning and authorities in Wyker v. Francis are, in my opinion, conclusive on the question that mandamus is an available remedy in cases of the character in hand. In consequence of the rulings made in the opinion in this case and upon the considerations referred to in Wyker v. Francis, it appears clear to the writer that State ex rel. Norwood v. Goldsmith, County Treasurer 162 Ala. 171 , 50 South. 394 , and Hines v. Salter, 154 Ala. 248 , 45 South. 587 , are not only in conflict with the opinion on this appeal but also are unsound and should be overruled. It was ruled in the former case, denying the writ of mandamus prayed, that the remedy at law was adequate. Wyker v. Francis, at page 523, 120 Ala., at page 895 , 24 South., contains a full answer to this proposition. Indeed, it is too evident for doubt that the legal remedy as for misfeasance of the officer is in' no sense the substance or effect of the remedy mandamus offers to compel the payment out of funds held by the. county.