Wyker v. Francis , 120 Ala. 509 ( 1898 )

DOWDELL, J.

Motion is made to dismiss the appeal in this case on two grounds : First, because, as it is contended, the appeal was not taken within thirty days after the rendition of judgment in the circuit court; second, because, “after the thirty days allowed appellant in which to take an appeal had expired, and before any appeal bond was presented to or filed with the clerk of the circuit court of Morgan county, a peremptory writ of mandamus was issued and served upon appellant.” Considexing the two grounds in the inverse order as stated above, it is difficult to understand how the issuance of the peremptory writ could deprive the appellant of his xfight of appeal. In the absence of an order of the court suspending the execution of the judgment for a peremptory writ, or of the filing by the appellant (defendant in the court below) of a supersedeas bond, the peremptory writ ordered in the judgment might haye been issued within the thirty days. The contexxtion, therefore, that the issuance of the peremptory writ was an execution of the judgment, and having issued before the appeal bond was ‘ ‘presented to or filed with the clex’k of the circuit court,” is without merit, on motion to dismiss an appeal. Except in such cases as a different time is prescribed by statute, appeals from final judgmeüts and decrees of circuit and chancery courts may be taken at any time within a year from the rendition of the j udgment or decree ; and we do not think it could be seriously urged that the execution of the judgment or decree within that time would deprive the party complaining of his right of appeal.

Was the appeal taken within thirty days? The judgment appealed from was rendered on the 8th day of November, 1897, and on the 9th, the day succeeding the day of the rendition of the judgment, the following order was made by the presiding judge : “And now the defendant in said petition appeals and prays an appeal from the decision heretofore rendered in this case. Now on the defendant giving bond in the sum of four hundred and seventy dollars with security to be approved by the presiding judge and conditioned as required by law within thirty days, it is ordered that the said judgment be suspended until a hearing by the Supreme Court.” The appeal bond required by the foregoing order was executed by the appellant, and approved by the presiding judge on the 8th day of December, 1897, and was conditioned “to prosecute said appeal to effect and satisfy all costs and such judgment as the Supreme Court may render in this case,” etc. This bond was indorsed by the clerk of the court as having been filed with him on the 14th day of December, 1897. There can be no doubt as to the bond having been executed by the appellant and approved by the presiding judge within thirty days from the rendition of judgment, by excluding the day of the judgment, November 8th, and including the day on which the bond was approved, December 8th. — Code, 1886, § 11. But it is contended that the presiding judge had no authority to take and approve the bond, that that was the duty of the clerk of the circuit court, and for that reason no security for the costs of appeal was given until December 14th, the date of indorsement of filing by the clerk. There are two sections in the Code of 1886 relating to appeals in proceedings for viandamus — 3160 and 3616. Section 3160 is as follows : “From the final judgment of any circuit court, or other court exercising the jurisdiction of such court, in any such proceeding, an appeal shall lie to the Supreme Court as in other cases ; but such appeal must be taken within thirty days after the final judgment is rendered and shall be a preferred case in the Supreme Court, and shall be decided at the first term to which it is-taken.” This section is a part of chapter 13, page 690 of Code, of 1886, which relates to proceedings by mandamus, prohibition, certiorari, and other remedial writs. Section 3616 is as follows : “Appeals may be taken to the Supreme Court from the judgment of judges of the circuit and city courts on application for writs of certiorari, .supersedeas, quo warranto, mandamus and other remedial writs, upon plaintiff or defendant giving security for the costs of appeal, approved by the judge trying the same, within sixty days from the day of judgment; but such appeal shall not operate as & supersedeas of the judgment, unless bond with sufficient sureties be given by the appellant, payable to the appellee, in such sum as the judge hearing the application shall require, conditioned to pay all damages thereby sustained.” This latter section forms a part of chapter 1, page 765 of the samé Code, and which relates to appeals from judgments, orders and decrees. The former statute, section 3160, is the more recent enactment of the legislature, and became a law February, 12th, 1879, (Acts, 1878-79, p. 150). It will be observed by comparison of these two sections, that there is an evident inconsistency between the two as to the time prescribed within which an appeal shall be taken. Section 3166, which also forms a part of chapter 13, and was section 9 in the above act of Feb. 12th, 1879, provides as follows: “The common law, as now in force in this State, touching any of the matters embraced in this chapter, is not repealed, but left in full force ; the true intent and meaning of this chapter being to provide a plain, more speedy and less expensive mode of procedure in all cases to which it applies ; nor shall the prbvisions of this chapter be'held to apply to a certiorari obtained in the Supreme Court, upon a suggestion • of diminution of the record ; nor is anything in this chapter contained intended to repeal, alter, or change any statute of this State, now in force, in reference to proceedings for habeas corpus or mandamus.” The necessities of this case do not require us to determine which statute should prevail as to the time prescribed for taking an appeal, nor is there any likelihood of this question again arising under these two statutes, since both have been incorporated in the Code of 1896, as sections 431 (3616) and and 2827 (3160), and in each the time prescribed for taking the appeal is the same — thirty days. In all other respects the two sections brought forward in the present Code are unchanged. The two sections 431 and 2827 as now contained in the Code of 1896, are in all respects identical with sections 3616 and 3160 of the Code of 1886, except as to the change made in 3616 as to the time of taking an appeal.

Section 3160 provides, “an appeal shall lie to the Supreme Court as in other cases and it is contended by counsel for appellee, that in other cases in which appeals lie to the Supreme Court the clerk takes and approves the security for costs of appeal.—Code, 1886, § 3622. While this may be, it can not be doubted that prior to the act of February 12th, 1879, which enacted into law section 3160, in appeals taken under the provisions of section 3616, that is in mandamus proceedings, like the present case, it was the duty of the presiding judge trying the same to take and approve the security for costs of appeal. Does the provision contained in section 3160 above quoted operate a repeal of the provisions contained in section 3616 relating to the mode of taking and approving security for cost of appeal? We think not. There are two ways of repealing a statute, one by express declaration of the legislative will, and the other by implication; the latter, repeal by implication, is not held in favor by the courts. Besides, in this case, we find in section 3166 above quoted, the following provision : “Nor is anything in this chapter contained intended to repeal, alter or change any statute of this State .now in force in reference to proceedings for habeas corpus or mandamus.” Section 2833 of the Code of 1896 is identical with section 3166 of the Code of 1886, in which the above provision occurs. There is not such an inconsistency or repugnancy between these two statutes that would warrant the construction of a repeal by implication. Whether .the appeal bond in this case was effective as a supersedeas bond is not a question presented for decision by the motion to dismiss the appeal. The bond in this case, whether good as a supersedeas bond,' and which we do not decide, having been taken and approved by the presiding judge within the thirty days of the rendition of judgment, is sufficient as a secuiity for costs of the appeal. See Walker v. Hunter, 34 Ala. 204; McCollum’s Executor, 33 Ala. 711. The motion to dismiss the appeal must be overruled.

The substantial averments in the petition for a mandamus are that the city of Decatur is indebted to the petitioner on certain warrants described in the petition and held and owned by him, which were regularly and legally drawn on the appellant, J.D. Wyker as the city treasurer, and were payable out of money-in the'treasury not otherwise appropriated ; that said warrants were issued for an indebtedness due petitioner by the city of Decatur ; that said warrants were duly registered by the appellant as treasurer of said city in pursuance to and compliance with a resolution passed by the mayor and council; that after the registration of the said warrants, petitioner presented each of said warrants to appellant as treasurer and demanded payment of same ; that payment was refused by said Wyker as such treasurer ; that at the time of the presentation of said warrants for payment there was, and still is, sufficient money or funds of said city in the hands of said Wyker as such treasurer not otherwise appropriated to pay off said warrants. Therefore,-petitioner prays etc. To this petition a. demurrer was interposed by the' defendant, which was overruled by the court below, and the defendant then answered the petition. The answer is divided into paragraphs, which are numbered consecutivily from 1 to 9. Demurrers were sustained-to each paragraph being treated as so many distinct and separate pleas, but the fifth ground of demurrer of the petitioner which was directed to the answer as a whole was overruled, and the record then recites that issue was thereupon joined between petitioner and defendant, and it was ascertained and determined by the court, among other things, that the defendant had in his hands sufficient funds not otherwise appropriated and-over,.and above what was sufficient to defray the current expenses of the city government; and judgment was rendered for petitioner ordering the peremptory writ, etc,

The assignments .of error are upon the rulings of the court on the demurrers. The real and only question involved is whether a resort can be had to proceedings by mandamus to compel the treasurer of a municipal corporation to pay a- warrant duly and legally drawn and issued against the municipality, out of the general funds of the corporation.

It is thoroughly and well settled law that where payment is sought out of a specific fund appropriated and set apart for that purpose, mandamus is the proper remedy to compel payment, on refusal by the treasurer, or other proper disbursing officer, upon demand made for payment. On this proposition, the decisions are in harmony and accord. But where payment of a warrant drawn on the treasurer and payable out of the general fund is sought, the authorities are in conflict as to the right of resort to mandamus. The general rule is, that where a party has another specific and adequate legal remedy, he is not entitled to a mandamus. But this other specific and adequate legal remedy must be against the party to the mandamus proceeding. “The plain, adequate and speedy remedy by an ordinary action, which will defeat the right to a mandamus, must be a remedy against the respondent in the mandamus proceeding, and not against third persons.”—Merrill on Mandamus, p. 59, § 53. That the petitioner has a .right of action at law on his warrant against the city of Decatur is no sufficient answer for the non-performance of a purely ministerial act and duty by the officer. The rule of. practice is, however, different in the Federal courts, where the owner and holder of a warrant drawn on a municipality is required to first reduce his demand to a judgment as the foundation for a mandamus.—Jerome v. Com’rs Rio Grande Co., 18 Fed. Rep. 873; Chickaming v. Carpenter, 106 U. S. 663. We can see no good reason in this rule. If the municipality admits its indebtedness, which it does, when throngh its proper officers, the claim or démand is duly audited and allowed, and a warrant therefor is ordered to be drawn, and is properly drawn on its treasurer, the question might well be asked, why put the owner and holder of such warrant to the circuity of an action at law on the warrant against the city or municipality, before applying for a mandamus against its treasurer to compel him to discharge a simple ministerial act of payment, which the proper municipal authority has already ordered him to perform? Of course, the reasoning would not apply, where a claim or de^mand against the city, no matter how just, had not been audited and allowed and a warrant drawn therefor. In such a case, no one doubts but that the demand must first be reduced to judgment; until this is done or a warrant has been drawn, or the treasurer has in some other mode been authorized and directed to pay, no duty is imposed on the treasurer to pay. “The act of paying a demand or claim against a municipal corporation, after it has been duly audited and the amount fixed, like the act of drawing a warrant upon the disbursing officer, is regarded merely as a ministerial duty, unattended with the exercise of any judgment or discretion, and hence subject to control by mandamus.” — High on Extr. Legal Rem., §356. “A writ of mandamus will lie to compel a public disbursing officer to pay accounts out of the public funds in his hands, when such accounts have been allowed by the proper officers or tribunals, and no duty devolves upon him except the ministerial duty of making the payment.” Merrill on Mandamus, § 136. See State v. Treas. Callaway Co., 43 Mo. 228; Ray v. Wilson, 29 Fla. 342; State v. Gandy; 12 Neb. 232; Baker v. Johnson, 41 Me. 15; Hendricks v. Johnson, 45 Miss. 644; People v. Edmunds, 19 Barb. 468; Johnson v. Campbell, 39 Tex. 83.

Mr. Dillon, in his work on Municipal Corporations, asserts a seemingly contrary doctrine. In Vol. 2, section 850 (3d ed.), he says : “We have seen that it is a general rule, relating to the writ under consideration, that it will not lie if there be a plain and complete remedy by the more ordinary processes of the law; and this principle has been applied to this mode of compelling municipal corporations to meet their liabilities and obligations. Therefore, it has been generally, but not uniformly, held,' if the creditor may bring suit against the corporation and obtain a judgment, which may be enforced and rendered effectual by ordinary execution, that mandamus will not lie to compel payment in advance of judgment obtained, and this view is the one most consistent with principle.” It will be observed that the learned author speaks in general terms of the “liabilities and obligations” of the corporation. Any just claim or demand might and would constitute a liability, but until audited •and allowed and ordered paid by the proper officers of the municipality, or reduced to judgment, could not be the foundation for an application fior -a mandamus: So also a bond of the corporation would be a liability or obligation, and if no specific fund be appropriated and set apart, for its payment, could not be the foundation for such application, in the absence of an order for its payment by the proper municipal authority, or until reduced to judgment. The particular question involved here of the right to resort to this remedy to compel the payment of a warrant or voucher properly drawn or issued against the municipality is not considered or discussed by him.

In the case of Sessions & Leary v. Boykin, 78 Ala. 328, Justice Clopton, rendering the opinion, uses the following language : ‘ ‘It may be conceded, that where a warrant, though drawn by the proper officer, is payable out of the general funds of the county, a mandamus will not lie to compel its payment ;v but the party will be left to his remedy on the official bond of the officer, or by action on the case.” Taking the whole context of that opinion, we do not understand that the above excerpt from the opinion was intended as an assertion that such is the law. It was more in the nature of an answer to argument. Besides, the question involved in that case was one of payment of a claim out of a specific fund set apart for the purpose by the statute, and did not call for a determination of the legal proposition contained in the statement above quoted. It. is well, however, to note here that in the above case it was decided that “an action on the case against the treasurer, or an action on his official bond, affords pecuniary compensation, but does not 'compel performance of the specific duty.” Notwithstanding the purpose and object of the application for the writ in that case was to compel the payment of a claim — which in reality was nothing less than pecuniary compensation.

The contention by counsel for appellant, that 'appellee has a remedy, by action on the case against appellant, or an action on his official bond “if he is a bonded officer,” is not good. “Such other remedy must be adequate. Such remedy is .adequate when it reaches the end intended, and actually compels the performance of the duty which has been neglected or refused. It must apply, to the case, and afford the particular right to which the party is entitled. Anything which falls short of that is not adequate or complete. The indictment of the officer, or an action on the case for damages for neglect of duty, generally does not accomplish the performance of the neglected duty, and is not an adequate remedy.”—Merrill on Mandamus, §53, citing number of authorities.

We, therefore, hold that the owner of a warrant which has been duly and legally issued by a municipal corporation, after demand and refusal of payment by the treasurer, he having in his hands at the time sufficient funds not otherwise appropriated, and over and above what is necessary to defray the current expenses of the city government, is entitled to a writ of mandamus against the treasurer to compel such payment.

The rulings of the circuit court are free from error and the judgment is affirmed.