Clark v. Eagerton

We have in this state no statute expressly authorizing commissioners' courts to supply and establish lost county records. But those courts are intrusted with all the authority and jurisdiction, whether legislative, judicial, or executive, committed by law to the counties. Commissioners' Court v. Moore, 53 Ala. 25. And in the exercise of its general powers of supervision and control over county affairs and county property there is not only an implied power, but an implied duty as well, to see that lost records, such as tax assessments, upon which the proper administration of county affairs vitally depends, shall be reestablished.

The collection of taxes must be grounded upon duly authenticated assessments. Taxes have often been called the lifeblood of government, without which it cannot perform its necessary functions, or even long endure. "Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public." Dows v. Chicago, 11 Wall. 108, 20 L. Ed. 65; Ala., etc., Ins. Co. v. Lott. Tax Col.,54 Ala. 499, 507.

Without the record of assessments, county officials cannot safely or effectively proceed with the performance of the essential duties enjoined upon them by law with respect thereto, and the whole scheme of property taxation is thereby frustrated.

By the act approved February 13, 1919 (Gen. Acts 1919, p. 68), amending the act approved September 15, 1915 (Gen. Acts 1915, p. 548), which required state solicitors to give written opinions to every county official on all matters connected with their respective offices, it was declared that —

"Nothing herein shall be so construed as to limit or prohibit courts of county commissioners or boards of revenue from retaining or employing attorneys when it is deemed advisable or necessary and the agreed compensation to them may be paid asare claims to grand and petit jurors." (Italics supplied.)

The amendatory language above quoted is more than a mere restriction upon the effect to be given to the language of the amended act; very clearly it confers the authority to employ counsel, and to pay them for their services, at their discretion, "when deemed advisable or necessary" in the administration of county affairs, and thereby enlarges and extends the implied power to employ counsel for the purpose of bringing or defending suits, as previously recognized and declared by this court in Jack v. Moore, 66 Ala. 184, and by the authorities generally. 4 A. E. Ency. Law (2d Ed.) 383; 15 Corpus Juris, 547, 548.

As pointed out by counsel for appellee, the case of Walker v. Bridgforth, 9 Ala. App. 257, 62 So. 323, cited in brief for appellant, denied the authority of the commissioners' court to employ private counsel to aid in the prosecution of criminal offenses, — the county being in no sense a party to the prosecution, and only indirectly interested in the result, and the statutes making express provision for their prosecution by the circuit or county solicitor. That of course is a very different case from this, and the principles and reasoning which were correctly applied there can have no application here.

It seems hardly necessary to add that the methods to be pursued by the attorneys employed in this case in the reconstruction of the assessment list must be left to their own professional wisdom and discretion, and cannot be controlled by the courts. If their methods should be lacking in diligence or skill, or if the results achieved should be ineffective or futile, the question of their compensation, and the amount to which they are entitled, would be one for adjustment between them and their employers, as it is in ordinary cases. If the lost assessments are not re-established in such a way as to be legally effective, taxpayers who are adversely affected will have their remedies in the courts by resisting the collection of taxes not shown to be based upon a valid assessment, or by resort to other appropriate procedure.

The fact that the state is equally interested with the county in the reconstruction of the assessment list and the re-establishment of the last assessments, and has agreed through its Attorney General to bear one-half of the expenses to be incurred in that behalf, is without legal significance, so far as the authority of the commissioners' court is concerned.

It results from what we have said that the bill of complaint is without equity, and the demurrer for want of equity was properly sustained, and the temporary injunction was properly dissolved by the trial court.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.