State ex rel. Mobile County v. Stone , 69 Ala. 206 ( 1881 )

SOMEBYILLE, J.

The claim of the county of Mobile, •sought to be enforced by the writ of mcmdmius in this case, is very plainly a preferred claim as against the fine and forfeiture fund in the hands of the appellee, who is treasurer of the county. This priority was secured by the act of February 3d, 1846, entitled “An act to establish a Criminal Court in the City of Mobile.” — Acts 1846, pp. 29-30. Section 9 of this act provides that the salary of the judge of this court shall be paid by the coxuity, and “for the remuneration of said county for the payment of the same, the fines cmcl forfeitures of all State cases in Mobile county, to the. full amonnt of said salary, shall be paid into said Ireasury, im preference to any other appropriation of the same

Subsequently the name of the court was changed to “ The City Court of Mobile,” by the act of February 12th, 1850, which operated as a change of name only, and not of legal identity, jurisdiction, powers or authority. — Acts 1850, p. 88. The salary of the judge was also increased, but was made “payable at like time and from the same sources” as before provided by law. — Acts 1850, p. 36, §44. We find no legislation repealing the original act authorizing the county to be reimbursed ■out of the fine and forfeiture fund for the amount of this officer’s salary, or in any manner abrogating the priority secured to this claim by the act of February 3, 1846.

We have no doubt that mandamus is the proper and only remedy of petitioner in this case. The relator shows a clear legal right, and has no other adequate remedy to enforce it, and this is the sole test of- cases where the writ can properly be invoked. — Ex parte S. & N. R. R. Co. 65 Ala. 499; High on Extr. Rem. § 10; Murphy v. State, ex rel., 59 Ala. 639.

The commissioners courts have no control over fines and forfeitures. The fund accruing from these sources is in the custody of the treasurer of the county, and is subject to his continued custody until paid out pursuant to law. And the General Assembly can by legislative enactment charge it with such priorities or preferences as their option may suggest. — Palmer v. Fitts, 51 Ala. 489.

A suit at law here for the money claimed by the county would clearly not lie. As the treasurer is entitled to hold and retain all moneys of the county, he would be entitled- to hold this fund, and his custody of it could not be interrupted by suit, so long as he honestly held it, during the term of his office, and without any wrongful or tortious dealing with it. Iiis duty under the statute is expressly declared to be, “to receime and heep the money of His county, and disburse the samé according to-law.” — Code, 1876, § 845; Edmondson v. DeKalb County, 51 Ala. 103. The function of the writ of mandamus, as here resorted to, is not to invade or interrupt his lawful custody of the fund in question. It is, in effect, only to compel the treasurer to transfer the proper amoiont from one account to another, he still retaining his lawful possession — to transfer the amount claimed, in other words, from the special fund, accrued from fines'and forfeitures, to the moneys in the general treasury of -the county, which are subject to disbursements of a character entirely different. The petitioner showed a clear legal right to have this done, and the writ of mandamus, we’ think, was the appropriate remedy to compel the performance of the ministerial duty of doing it.

The Circuit Court erred in dismissing relator’s petition, and its judgment is reversed, and a judgment is rendered by this court, granting the prayer of the petition, and awarding the writ of mcmda/rrms.