Files v. McWilliams , 49 Miss. 578 ( 1873 )

Tarbell, J.,

delivered the opinion of the court:

Mandamus to compel the treasurer of Itawamba county to pay a warrant of the board of police of that county, issued in 1864, to the sheriff, for taxes overpaid in 1862 and 1863, An alternative writ was served, and the. treasurer answered, setting up several grounds why the warrant ought not to be paid. Among.others, that the warrant was issued illegally, and without authority of law; that, if legal, the remedy was not by mandamus; that the warrant was contemplated to be paid in Confederate treasury notes; and that, in fact, the allowance was for taxes for the support of the war in hostility'to the goyernment of the United States. A peremptory mandamus was denied, and hence a writ of error. The case was heard upon the return, which is full and explicit in its specifications why the warrant should not be paid. The ground of the decision- of the circuit court does not appear, but it is stated in the return of the alternative writ, that the warrant was issued for an allowance to the sheriff, as such,' and was hence without authority and void. The argument is, that the money, having been collected in the form of taxes from, belonged to, the people.

Whether allowed to the claimant in his official or in his individual capacity, the return claims that the allowance by the board of police was without authority of law, and was, therefore, not a legal claim upon the county. .

Admitting the legality of the consideration and the warrant, yet the return insists that the claimant had mistaken his remedy, a point not well taken. 42 Miss., 238; 28 ib., 38 ; 44 ib., 383 ; 9 S. & M., 77, etc.

The return then sets out the existence of the war for the separation of the Union, and states, specifically, that“ the entire amount of said tax assessed, levied and collected was for the use of said war and in support of said government, against the government of the United States.” Upon the record in this case there may be submitted a few suggestions which seem, upon the facts presented, to be conclusive in support of the judgment of the circuit court.

1. Art 161, Code of 1857, p. 132, directs that no court shall be authorized to make any allowance payable out of the county treasury, unless the same he provided for hy some act of the legislature, and when any allowance shall be made by any court to any of its officers or other person, payable out of the county treasury, the clerk of such court shall make out a fair copy of the account so allowed, and of the order allowing the same, certified under his seal of office, and reciting therein under what statute, it was made ; and if the treasurer shall have doubt of the propriety of any allowance made as aforesaid, he shall not pay the same, but shall report it to the next term of the board of police for consideration.

2. By article 30, page 418, Code of 1857, it is further pro-' vided, that boards of police shall direct the appropriation of the money that may come into the treasury of their respective counties, but shall not appropriate the ,same to any object not authorized by law.

3. It does not appear whether the amount over-paid to the treasurer was by him converted to his own use, or de-. voted to the payment of the debts of the county, upon which the circuit court might well have considered there depended an important argument.

4. The amount overpaid was undoubtedly in Confederate currency.

5. Being taxes for the support of the war, as stated in the return, which must be taken as true on the motion for a peremptory writ, (9 S. & M., 77 ; 42 Miss., 237 ; 44 ib., 393), the legality of the allowance may be very seriously questioned, and affords conclusive ground for its non-payment how.

6. All of the adjudications on this class of questions show that in each particular case, the consideration of the warrant, and the action of the board upon the whole subject,, were inquired into, at least sufficiently, to put the court in possession of the facts, as a basis of adjudication! 45 Miss., 651; 42 ib., 237; 28 ib., 38.

7. In the absence of full information, which may have been known to and influenced the decision of the court below, being a court of competent jurisdiction, presumptions in favor of the judgment may be indulged in when necessary.

Judgment affirmed.