Parker v. Hubbard , 64 Ala. 203 ( 1879 )

STONE, J.

The “act for the relief of Robert Parker, late coroner for the county of Montgomery,” approved February 13,1879, authorized and empowered the Board of Revenue of Montgomery county “to examine and audit the account of Robert Parker, for expenses incurred and services rendered by him as coroner for the county of Montgomery, and which would have been proper charges against the fine and forfeiture fund of said county, and for which he has received no compensation.” The act then directs that the Board of Revenue shall “draw their warrant, in favor of said Robert Parker, on the treasurer of said county, and payable out of the fine and forfeiture fund of said county, for the amount that may be allowed and audited by said Board of Revenue.” Pamph. Acts 1878-9, page 482.

The petition in this case represents, “That pursuant to the provisions of said act, the said Board of Revenue has examined and audited the account of petitioner [Barker] mentioned in said act, and-the amount allowed and audited by said board in favor of petitioner is the sum of one thous- and and thirty-two and 75-100 dollars.” Betition then averred, that a warrant was thereupon demanded of Hubbard, clerk of said Board of Revenue, on the treasurer of said county, for the sum so awarded ; that it was the duty of said clerk, among other things, to issue warrants on claims audited and allowed by said board; that “by virtue of the direction, authority, and practice of said Board of Revenue, it was and is' the duty of said clerk to sign and issue lawful and proper warrants on all claims allowed and audited by said Board of Revenue, and to sign and issue to petitioner the said warrant tendered to said clerk by petitionerthat said clerk signed and tendered to petitioner a warrant for the proper amount, but on its face made payable “out of any moneys in the fine and forfeiture fund, not required to pay registered claims against said fund, as now required bylaw and that said clerk refused to issue his warrant to petitioner m any other form. Petitioner refused to accept this warrant, and tendered to said clerk, to be signed by him, a warrant in the following form : “The treasurer of Montgomery county, when in funds, will pay to Robert Parker, or order, one thousand and thirty-two and 75 — 100 dollars, from the fine and forfeiture fund of said county, in pursuance of an act of the General Assembly of Alabama, approved the 13th day of February, 1879.” This, Hubbard refused to sign. The prayer of the petition was for a mandamus to Hubbard, commanding him to sign the warrant tendered. There was a demurrer to this petition, which the Circuit Court sustained ; and Parker brings the case here by appeal.

We do not think the warrant tendered by Hubbard was a compliance with the statute. The legal effect of its terms would have been to constitute all registered claims, against the fine and forfeiture fund, preferred claims over that of Parker. We can not think this was the intention of the legislature.

The petitioner contends that the effect of the special statute, the substance of which is given above, is to give to him a right to demand and have payment thereof, out of the fine and forfeiture fund, paramount to other claims on that fund : in other words, to make it a preferred claim. To this it is objected, for the Board of Revenue, that under the “act to regulate the fine and forfeiture fund of Montgomery county, and the disposal of moneys arising from fines, forfeitures, and convict labor,” approved January 28,1879 (Pamph. Acts 246), the moneys accruing to the fine and forfeiture fund must be expended under the provisions of that statute. To this it is replied, that the special act for the relief of Robert Parker is of later date than the general statute above referred to; that the provisions of the two acts are incompatible, and that the later enactment repeals by implication all the provisions of the former to which it is repugnant. To this it is rejoined, that the two acts are not repugnant,, but may well stand together.

Bepeal of statutes by implication is not favored in the law; and it is only when there is an irreconcilable conflict that the later repeals the older enactment, by implication. If we can find a reasonable field of operation for the more recent statute, without displacing, or colliding with the provisions of the previous law, the conclusion is that the legislature intended both statutes should stand. In such case, there is-no repugnancy, and no repeal by implication. — 2 Brick. Dig. 463. “When the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more-particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.” — Sedg. Stat. and Cons. Law, 2 ed., 98, and note a; State, ex rel. v. Bishop, 41 Mo. 16.

We do not think there is any repugnancy between these two statutes, when properly construed. The general statute furnishes persuasive evidence that the aggregate of proper claims against the fine and forfeiture fund of Montgomery county was disproportionately large, and it provided for a competitive system among the creditors, awarding first payment to him who would submit to the heaviest discount from the face of his claim. It obliterated the preference given to claims first registered, save in case of a tie, and-directed payment of registered claims to be first made to him who proposed to accept the smallest per cent, in full liquidation. It did not propose to determine what were, or were not, proper claims against that fund, but left that subject as-previous legislation had defined it. Its provisions embrace all claims against that fund, whether registered or unregistered at the time of the enactment. All, upon registering their claims, could bid for the money belonging to that fund, as the same might be advertised and offered from time to time.

The special statute for the relief of Bobert Barker indicates that his claim was for services previously rendered, and that either the treasurer refused to recognize it as a valid, subsisting claim, or that it was in such form that Barker could not successfully assert it, or have it registered. There is no general statute, requiring or authorizing claims against the fine and forfeiture fund to be audited. The statutes provide other methods for their authentication. — Code of 1876, §§ 4460-62, 5046; Pampli. Acts 1865-6, 470. Hence, we are led to infer there was some obstacle in the way of the successful assertion of Mr. Parker’s claim, and that on this account the statute was procured to be enacted. This view receives further confirmation in the language of the statute, which directed the Board of Revenue to audit Parker’s claim for expenses incurred, &o., which would have been proper charges against the fine and forfeiture fund of said county. If his claim consisted of charges confessedly chargeable on that fund, and if there was no impediment in the way of its operation, there would have been no need of the statute, or that the claim should be audited. This, we suppose, furnished the reason for the passage of the act for the relief of Robert Parker, which we are construing. There is nothing in the special statute which, in terms, repeals any former law, and nothing which asserts that this shall stand as a preferred claim on the fine and forfeiture fund. The legislature has frequently declared that certain classes of claims shall be preferred ; but they have always done so in express language. We presume the legislature would not have enacted the statute in question, if the treasurer had allowed the claim, or the Board of Revenue had felt itself authorized to audit and examine it. This furnishes to the act for the relief of Robert Parker a field of operation, without disturbing or impairing the provisions of the act to regulate the fine and forfeiture fund of Montgomery county. We do not think the statute makes petitioner’s a preferred claim. It enables him to have it put in form to be registered, with all the rights which the general statute secures to all other owners of registered claims against that fund. The words, ■‘when in funds,’ found in the warrant tendered to Hubbard for signature, are beyond the language or purpose of the statute, and should have been omitted.

The words of permission and authorization employed in this statute must be construed as mandatory. — 2 Brick. Dig. 462, §§ 29, 30 ; Sedg. Stat. and Const. Law, 2 ed., 376. The statute made it the duty of the Board of Revenue to examine and audit the claim; and if they had declined to obey its direction,, they could have been coerced tó do so. The Board of Revenue performed this duty, and ascertained the amount due. This being done, a single duty remained; that of drawing “their warrant in favor of said Robert Parker, on the treasurer of said county, and payable out of the fine and forfeiture fund of said county,” for the amount allowed. This is a mere ministerial duty, and could be performed by the board directly, or through Hubbard, their clerk, as they might elect. But, whether drawn in one form or the other, it was the act of the board, and not the act of the clel'k. If the petitioner failed to obtain the warrant he was entitled to, his recourse was on the Board of Bevenue ; and, until he demanded such warrant from the Board of Bevenue, and failed to obtain it; or, until he sought unsuccessfully to obtain from that body its mandatory order, compelling their clerk to issue the proper warrant, he fails to show a right to the writ of mandamus. One court will not interfere with, or cause the performance of mere clerical duties of another tribunal, judicial in its nature and functions, until that tribunal has been unsuccessfully applied to, to command and compel its own ministerial agent to perform the duty. — Mansony, Ex parte, 1 Ala. 98; Lehman, Durr & Co. v. Robinson, 59 Ala. 219, 245.

It is contended for appellant that the petition in this case does show in effect that the Board of Bevenue had done its duty, and made the proper order for the issue of the warrant, and that nothing remained but for the clerk to issue the warrant to which appellant was entitled. The language relied on as supporting this view is : that “by virtue of the direction, authority, and practice of said Board of Bevenue, it was and is the duty of said clerk to sign and issue lawful and proper warrants on all claims allowed and audited by said Board of Bevenue, and to sign and issue to petitioner the said warrant tendered to said clerk by petitioner.” We are inclined to construe this language as affirming the nature and scope of the duties of the clerk, rather than as an averment that the Board of Bevenue had directed their clerk to issue the warrant in the form claimed. But, conceding that the averment is the equivalent of a statement that they had directed their clerk to issue a warrant in the form demanded, it does not aid the petitioner’s case. It still fails to show that petitioner had applied unsuccessfully to the Board of Bevenue, for an order compelling their clerk to issue the proper warrant. Until he had made such application, and failed, petitioner had no right to appeal to the Circuit Court.

It is contended for appellant that the act “to regulate the fine and forfeiture fund of Montgomery county,” approved January 28,1879, provides only for the payment of claims then existing, and makes no provision whatever for claims afterwards to accrue against that fund. On this the argument is made, that the effect of our ruling is to exclude the Parker claim from all participation in the competitions for the moneys realized, and from time to time advertised and offered to the highest bidder. We need not consider, in this case, whether that is the proper construction of the statute, and whether further legislation is or is not necessary. The present claim was in existence when that statute was enacted. Whether it had been registered or not, it was within the provisions of that statute ; for it is in express terms made applicable to all claims against the fine and forfeiture fund, “whether registered or unregistered.”

The judgment of the Circuit Court is affirmed.