Treasurer of Mobile v. Huggins , 8 Ala. 440 ( 1845 )

ORMOND, J.

The only question presented upon the record, is, whether the Judge of the County Court of Mobile had jurisdiction to pass upon the insolvencies, alleged to exist by the tax collector in Mobile county.

By the general law, as it has existed in this State for many years, a particular tribunal was created, for the ascertainment of the amount of insolvents, included in the general list, showing the gross amount of taxes, for which the tax collector stands charged. This tribunal, was a Court required to be held hy the Judge of the County Court of each county, on the 2Ü Monday of September of each year, when an examination of the amount of insolvencies was to be made, ascertained, and certified to the Comptroller. [Clay’s Dig. 570, § 68,]

When, from any cause, this Court was not held, the Comptroller was himself authorized to make the proper allowance; [lb. § 69,] and by another section it was provided, that when the special Court, above spoken of, was, from any cause, not held, the duty of making such allowance was devolved on the next County Court, [lb. § 70.]

As it respects taxes for county purposes, the general law authorized the several County Conrts to levy taxes on the subjects of State taxation, under the same regulations and restrictions, as were provided for the State tax. Thus the law stood until the 9th January, 1836, when an act was passed abolishing State taxation, and authorizing the Commissioners’ Courts of the respective counties, to impose taxes for county purposes. On the 13th of February, 1843, an act was passed, again reviving State taxation, and authorizing the Commissioners’ Courts to levy taxes for county purposes, not exceeding thirty per cent, on the amount of the State tax.

From this examination of the statutes, it. appears, that the Comptroller of the State had no power to act upon the subject in controversy here, and that no tribunal, but that of the special County Court, and the succeeding County Court, if the first was not held, existed for the ascertainment of insolvencies. The power conferred on the Comptroller, of making such allowances, when the County Judge had failed to act, evidently relates to the general State tax; but his allowance in reference to the State tax, would also operate on the county tax, as the subjects of taxation were the same ; the county tax being a per centum on the amount assessed as a State tax. During the existence therefore of State taxation, an ultimate tribunal was appointed for the settlement of such questions, but when State taxation ceased, and by necessary consequence, the power of the State Comptroller was at an end, no substitute was -provided by law in regard to the county tax, unless the Commissioners’ Court, the financial organ of the county, can, under the previously existing law, be considered sufficient for that purpose. Such, in our opinion, is the correct construction of the law.

This Court, by the act creating it, is invested with ample powers for the settlement of such questions. It is declared, that “they shall have control over the funds in the county treasury,’’ which would seem to be an explicit grant of the power in question. [Clay’s Dig. 149, § 3.] As the act abolishing State taxation, created no tribunal for the adjustment of this matter, other than the County Court, which had power to sit only at certain prescribed times, and could not legally sit at any other time, we think the Commissioners’ Court, having the control and management of the county funds, had the power, upon the failure of the County Court to act, to make the necessary allowance.

' It is, we think, very clear, that the Judge of the County Court has no power to make such allowances, but at the times and in the mode pointed out by the statute. The power conferred, does not appertain to the office of Judge of the County Court, either as a Common Law Judge, or as Judge of the Orphans’ Court. It is a special 'grant of power, which upon well established principles, can only be exercised upon the terms on which it is conferred. This is also clear from a consideration of the subject to be- acted on, and the evident design in conferring the power The revenue of each year, is wanted for the expenses of that-year, and all the machinery was provided, with a view to ensure its prompt collection. The intention was, that the revenue - should be collected during the year, to meet the current expenses of the government, and that the accounts of the tax collector should be closed during the year. It would be most mischievous in its consequences, if the tax collectors could, by their own act, diminish the revenue, by claims for insolvencies of preceding years. To prevent such a state of things, especial care has been taken, by the appointment of a special tribunal, to sit before the close of the fiscal year, and if from any cause, it fails to sit, the necessary deduction may be made by the Comptroller when the taxes are paid in; and if not paid, suit is promptly to be instituted. All these provisions are hostile to the idea, that the time of holding the special County Court is directory -merely. It is of the very essence of the power granted, whether considered according to its letter, or to its spirit and design.

These remarks apply equally to the county, as to the State tax. The reason is the same, and the law has made no distinction between them.

The taxes here involved, were collected in 1841 and 1842. It does not appear that in either year, at either the special, or general County Court, any application was made for an allowance of insolvencies, and most certainly the County Judge had no power afterwards to adjudicate them. We have already stated, that the Commissioners’ Court had the power to make the proper allowance, although the power of the County Judge, by lapse of time, was gone ; and in this case it appears the Commissioners’ Court has acted on the subject, and recommended a reduction of thirteen hundred dollars. This was certainly obligatory upon the county, and for that sum the defendant is entitled to a credit.

Let the judgment be reversed, and the cause remanded for further proceedings.