Opinion
1 Div. 189.
January 22, 1935. Rehearing Denied February 5, 1935.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Petition of the State of Alabama, on the relation of William H. McCaulley, for mandamus to the Board of Revenue and Road Commissioners of Mobile County and the individual members thereof. From a judgment sustaining a demurrer to the petition and dismissing it, relator appeals.
Affirmed.
Certiorari denied by Supreme Court in State ex rel. McCaulley v. Board of Revenue and Road Com'rs, 230 Ala. 315, 161 So. 112.
The amended petition for mandamus is, in substance, as follows:
Relator is and has been continuously since (and prior to) February 1, 1934, a duly appointed and qualified probation officer of the juvenile court of Mobile county, at a stated monthly salary. During the period involved it was necessary for relator to go into different parts of the city and county of Mobile in the performance of his duties as such officer. Such duties included, among other things, the transportation of juveniles to and from institutions within the city and county, and to and from the juvenile court; and the investigation of cases in said court, the service of process, warrants, and subpœnas of said court. In the performance of his duties as such probation officer, the use of an automobile, and gasoline and oil therefor, were and are necessary and proper. The statutes under which the juvenile court was organized and operates (Gen. Acts 1927, p. 653; Gen. Acts 1931, p. 244; Gen. Acts 1933, Ex. Sess., p. 131) provide that the county in which such court is situated shall pay all items of expense, including all costs of transportation of juveniles and officers to and from institutions, arising out of the operation and in connection with the juvenile court and the cost and maintenance of said juvenile court, not including furnishings, etc., separately provided for in section 5 of the act (Gen. Acts 1927, p. 656, § 5), but including all other matters of expense or cost. The cost or expense of an automobile, together with gasoline and oil therefor, for use in the performance of relator's duties, constitute a part of the cost or expense of maintenance and operation of the juvenile court as contemplated by said statutes. Such expense or cost of the use of an automobile by relator in performance of his duties were paid for and gasoline furnished for many months prior to February 1, 1934, but respondents in January, 1934, refused to furnish or pay for the expense or cost of the use of an automobile by relator after February 1, 1934, and no payments on account thereof have been made since said date. Since said date relator has had to use his own car and to pay for the gasoline and oil used in performance of his duties, without compensation therefor. Relator has filed with respondent board petition for payment to him for reasonable use of his car and the expense incurred by him for gasoline and oil, and respondents declined and refused said petition.
It is averred that the statutes make mandatory the payment by respondent board of the cost and expense of the use of an automobile and gasoline and oil therefor, and it is prayed that writ of mandamus issue to respondents requiring them forthwith to pay, or issue warrants, for the claims so made by relator.
Ground 11 of the demurrer is as follows: "Because the petition fails to point out or cite any clear, legal right on the part of the petitioner to the thing demanded."
D. R. Coley, Jr., and J. Gaillard Hamilton, both of Mobile, for appellant.
Authority for a county to use public funds must of course be found in the statutes, but such authority may be either expressed or implied from the statutes. Ensley Motor Co. v. O'Rear, 196 Ala. 481, 71 So. 704; Yielding v. Ball, 205 Ala. 376, 87 So. 785; Underwood T. Co. v. Marengo County Bank, 203 Ala. 128, 82 So. 158; Bice v. Foshee, 19 Ala. App. 421, 97 So. 764; 25 R.C.L. 979; State v. Johnson, 103 Wis. 591, 79 N.W. 1081, 1090, 51 L.R.A. 33. The controlling principle in statutory interpretation is that the intention of the lawmaker constitutes the law. Cocciola v. Wood-Dickerson Co., 136 Ala. 532, 537, 33 So. 856; 25 R.C.L. 960; Steber v. State, 229 Ala. 88, 155 So. 708; Middleton v. Gen. W. W. Corporation, 25 Ala. App. 455, 149 So. 351. An interpretation should never be adopted which would defeat the purpose of a statute, if any other reasonable construction can be given it. Thompson v. State, 20 Ala. 54, 62. In the construction of section 5, page 656, Gen. Acts 1927, the doctrine of ejusdem generis cannot be applied to defeat the purpose of the statute. 25 R.C.L. 998; Jones v. State, 104 Ark. 261, 149 S.W. 56, Ann.Cas. 1914C, 305; U.S. v. Mescall, 215 U.S. 26, 31, 30 S.Ct. 19, 54 L.Ed. 77; State v. Western Union Tel. Co., 196 Ala. 570, 72 So. 99; Standard Oil Co. v. State, 218 Ala. 243, 118 So. 281; Martin v. State, 156 Ala. 89, 47 So. 104. All clauses of a statute should be construed together so as to arrive at the whole meaning thereof. Lee v. State, 10 Ala. App. 191, 195, 64 So. 637; Wages v. State, 225 Ala. 2, 141 So. 707; Crandall v. State, 2 Ala. App. 112, 114, 56 So. 873; Shell v. State, 2 Ala. App. 207, 56 So. 39.
Gordon, Edington Leigh and Geo. A. Sossaman, all of Mobile, for appellees.
To support a petition for mandamus, there must be a duty clearly shown. Lewis v. Jenkins, 215 Ala. 680, 112 So. 205. Relator must have a clear legal right to the thing demanded. Minchener v. Carroll, 135 Ala. 409, 413, 33 So. 168; Moseley v. Collins, 133 Ala. 326, 32 So. 131; Roche v. Board, 19 Ala. App. 528, 98 So. 654.
This is a petition for the writ of mandamus. The substance of the amended petition, as well as the demurrers thereto, appear in the report of the case.
So far as we know, the following language used by our Supreme Court in the opinion in the case of Minchener v. Carroll, Treas., etc., 135 Ala. 409, 33 So. 168, 169, is as good a guide as any other for us (Code 1923, § 7318) in the consideration of this appeal, to wit: "It is practically a universal rule that, in order to entitle a party to the writ of mandamus, he must show that he has a clear legal right to demand the performance of a specific duty. In other words, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required."
In line with the above, our Supreme Court has said: "If the authority of the defendant or defendants to do the act is not clearly shown, or is left in doubt by the averments, an appropriate demurrer thereto should be sustained." Lewis et al. v. Jenkins, 215 Ala. 680, 112 So. 205, 206.
Without repeating the averments of the amended petition, appearing as before mentioned in the report of the case, it will suffice for us to state that, after careful study of same, we are persuaded, and hold, they do not meet the test prescribed in the above quotations from opinions by our Supreme Court. We will elaborate but briefly.
Appellant's counsel, in a series of briefs filed here, evincing much industry, ability, and ingenuity, frankly admit that there exists no express statutory provision for the granting of the relief prayed. But they argue that the manifest "implication and intention" of sections 5, 17, and 21 of the act of the Legislature approved September 9, 1927 (Gen. Acts Ala. 1927, pp. 656, 663, 668), are to the effect that the prayer of the petition should be granted in toto.
We content ourselves by merely stating that we do not so read said sections. It seems to us that there are a number of different ways — which we need not point out — by which respondents might discharge any and all duties resting upon them by virtue of the three sections of the act mentioned, other than the specific one appellant, by his petition, would force upon them.
While other grounds of the demurrer were, in our opinion, well taken, it needs only be said here, further, that ground 11, being likewise well taken, was sufficient as a basis for the judgment of the lower court.
And the said judgment is affirmed.
Affirmed.