Construing the act of September 15, 1915 (Gen. Acts 1915, p. 348), abolishing the office of county treasurer and providing for the deposit of county funds in banks designated as depositories, this court has held that it was intended to create a mere contractual agency to perform the functions of the former county treasurer, and that the depositary did not become a public officer. Compton v. Marengo County Bank,203 Ala. 129, 82 So. 159. The act provides that —
"All warrants drawn upon the depository must be signed by the probate judge of said county or the president of the board of revenue," etc.
It is further provided, however, that if the county board are unable to arrange with a county bank for its assumption of the duties and functions of a depository, they "may designate some individual who may act as treasurer of such county under such terms and conditions" as may be fixed by said board.
Three days after the approval of the depository act, the act was approved fixing the salaries of county judges, and providing for their payment "by warrant of such judge drawn on the treasury of the county." Gen. Acts 1915, pp. 603, 604. On the original hearing we concluded, too narrowly and technically as we now think, that such salary warrants, in order to support a proceeding in mandamus to compel their payment, must be drawn upon the county depository, where one existed, and not upon the county treasurer, whose office had been abolished.
That view of the matter reflected, as we are now disposed to concede, a momentary lapse of the judicial mind to the old fetish of form, in disregard of sense and substance. No doubt the practice everywhere is to use the old form of warrants which were drawn on the county treasurer, and they would be strictly appropriate in counties where no depository exists, and where an appointee of the county board is acting as treasurer. In any case, the status might change from one to the other after warrants have been drawn, and very clearly this should not and would not affect the validity of the warrants, nor relieve the custodian of the county funds of the obligation to pay them.
The custodian of county funds is not a party to the warrant. "It is nothing more than an order on the county itself, the debtor." Savage v. Mathews, 98 Ala. 535, 13 So. 328; Com'rs' Court v. Moore, 53 Ala. 25, 28. It is in substance and effect an authorized demand upon the county treasury, and if it so appears upon its face courts will not indulge in the finical requirement of technical precision in the designation of the custodian of county funds. It is enough that the warrant evidences the payment of an authorized demand, and would as a voucher in the custodian's hands protect him against liability for an illegal payment.
While such a depositary is not a public officer, as hereinbefore noted, yet it is subject to all the duties and liabilities of a county treasurer, as previously prescribed by law, and a warrant drawn upon the county treasurer is certain to all intents and purposes, and must be paid by the depositary as though drawn upon him eo nomine.
Counties are not liable for interest on warrants for the payment of money.
"When a claim against a county is audited and allowed by the commissioners' court, and the party to whom it is payable accepts the warrant on the county treasurer for its payment, he does so with the knowledge that, by law, it can be paid by the treasurer only in the order of its presentment and registration. Unless there is a failure to pay in this order, the principal is not detained, or withheld, and interest cannot accrue. If there is such failure, it is the default of the treasurer, not of the county, and the statute subjects him to liability for interest, and ten per cent. damages in addition. From the day of this default only interest attaches. It does not accrue against the county, but against the treasurer." Vincent v. Gilmer's Ex'r, 51 Ala. 387.
It is true that these warrants were not of the class of claims which require registration (Hasty, Judge, v. Marengo Co. Bank, 204 Ala. 229, 86 So. 37), but this does not affect the application of the principle stated.
The petition herein does not claim interest on the warrants, and was not subject to demurrer on that ground. The order for the rule nisi, and the writ issued thereon, erroneously included interest on the sum to be paid; but that error must be corrected in some appropriate way.
On the original hearing we held that the petition should allege, not only that there *Page 282 were funds in the county treasury available for the payment of these warrants at the time of their presentation to the depository, but also that such funds were available for their payment at the time of the filing of the petition for mandamus. The case of Farson v. Bird, Treas., 197 Ala. 384, 72 So. 550, does not support that rule as to the burden of allegation and proof. The rule is, we think, correctly stated as follows:
"Since the presence or absence of such available fund is a fact lying peculiarly within the knowledge of the officer, and can rarely, if ever, be certainly known by the creditor, except with the aid of the officer, it is but fair that, when that defense is relied upon, it should be alleged in the return of the officer, so that an issue on that point may be made up and determined with the burden upon the officer to show the absence of available funds." 18 R. C. L. 227.
In principle and effect that text is supported by the case of Somerville v. Wood, 115 Ala. 534, 22 So. 476. This is a new proceeding, and wholly distinct from the one formerly here on appeal between the same parties (Hasty, Judge, v. Marengo County Bank, 204 Ala. 229, 86 So. 37), and the questions decided on that appeal do not include those which are herein discussed. We hold that the demurrer to the petition was improperly sustained. The judgment of the circuit court will therefore be reversed, and one will be here entered overruling the demurrer, with remandment of the cause for further proceedings.
Reversed, rendered, and remanded.
All the Justices concur.