Opinion
6 Div. 154.
January 13, 1921. Rehearing Denied February 10, 1921.
Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.
W. K. Terry, of Birmingham, and J. J. Mayfield, of Montgomery, for appellant.
Since 1915, the board of revenue of Jefferson county has been given original and unlimited power as to public highways, except as limited by Constitution and statutory provision. Acts 1915, p. 573; 166 Ala. 109. The board of revenue has the power, under the law as it existed in 1919, to appropriate any money subject to their disposal for road purposes for the maintenance, repair, and upkeep of ordinary rural roads or streets in the municipality. Authorities supra. Acts 1909, p. 304, is not applicable to road taxes in Jefferson county, since the adoption of the act of 1915. In collecting and distributing the revenues of a county, the board of revenue acts in a legislative capacity, and cannot be controlled by the courts. 58 Ala. 546; 65 Ala. 391; 166 Ala. 105, 52 So. 147; 151 Ala. 572, 44 So. 465; 7 R. C. L. 940 and 942. The mandamus should have been denied for want of funds with which to comply. 18 R. C. L. 138 and 139; 135 Ala. 409, 33 So. 168; 143 Ala. 556, 39 So. 214, 5 Ann. Cas. 625; 155 Ala. 226, 46 So. 766.
Fred G. Moore and Walter Brower, both of Birmingham, for appellee.
It is the clear legal duty of appellant to pay the money demanded. Acts 1909 (Sp. Sess.) p. 303; Acts 1885, p. 709. Mandamus will lie to compel it to do so. 180 Ala. 479, 61 So. 431. The act of 1909 is constitutional. 172 Ala. 138, 54 So. 757; 180 Ala. 479, 61 So. 431. The fact that the fund has been expended or is not available is not sufficient answer. 84 Cal. 12, 23 P. 1092, 18 Am. St. Rep. 158; 3 Idaho (Hasb.) 3, 25 P. 1092; 75 N.Y. 38; 58 Ill. 90; 72 Ill. 578; 225 Mass. 500, 114 N.E. 732; 35 Ohio St. 435.
In the case of Board of Revenue v. City of Birmingham, 88 So. 16 (this day decided), it was held that the act of February 17, 1885 (Gen. Acts 1884-85, p. 709), was mandatory, and therefore required the board of revenue of Jefferson county to levy a special tax therein named for the purposes stated. It further held that section 2 of the act approved August 26, 1909 (Gen. Local Acts, Special Session 1909, p. 304), was mandatory, and required the board of revenue to pay over to the city of Birmingham one-half of the money collected on the special road tax embraced in the special levy required by the act of 1885 on the property located in such municipality.
The opinion in that case deals with the act of 1887 and other acts relied upon by the board of revenue as justifying the amended levy made in the instant case, and the holding there is decisive of this appeal. The result of the holding in that case is that as to one-half of said tax, so collected, the board of revenue was without discretion, control, or right of disposal thereof, but could only pay it over to the municipality as prescribed by law.
It therefore follows that under this construction of these acts the board of revenue was without authority to so amend the tax levy as to deprive the city of Birmingham of its portion of said special tax, and that the order of June 18th, which would have this effect, was unauthorized, and should be annulled.
We think therefore mandamus is the proper remedy, and that the trial court correctly ruled. The judgment is accordingly affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
On Rehearing.
GARDNER, J. Application for rehearing overruled.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.