I concur in the substance of the Court's opinion. But I do not think it is necessary to support it that the legislature should have provided that the fund in question must be set up in a suspense account and not be available for allocation or distribution; as contained in amended section 891, Title 51, Code Pocket Supplement. I think, as said in the opinion of the Supreme Court of the United States in the Oklahoma case (Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873,88 L.Ed. 1121), cited in the opinion of this Court, supra, that such a feature is immaterial. Section 891, before it was amended, and as it was held unconstitutional in the Raible case, (Raible Co. v. State Tax Commission) 239 Ala. 41,194 So. 560, provided that the officer collecting the tax shall not be personally liable for it, although it should be held to be illegally collected. And section 890, Title 51, Code, provided that the Court shall order the same to be repaid by the State — clearly a judgment against the State. It is not so provided in the amended sections 890 and 891. I think the validity of sections 890 and 891 is to be upheld on the theory that the suit authorized by them is essentially a suit against the officer personally. There is no doubt of his personal liability, since section 891 does not now relieve him of it as before. Atchison, etc., Ry. Co. v. O'Connor, 223 U.S. 280,32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050; United States v. Nunnally Inv. Co., 316 U.S. 258, 62 S.Ct. 1064, 86 L.Ed. 1455, 140 A.L.R. 792.
The effect of the amended section 891 is to make an appropriation for the relief of an officer who shall have collected illegal taxes for which he is personally liable when such taxes have been covered into the treasury. There is no doubt of such legislative authority, and there is no doubt of such personal liability. In making the appropriation, the legislature is of course at liberty to provide that the fund shall not be disbursed, but retained in the treasury until the suit is determined, and if it is determined against the officer that it be used in satisfying his liability. But I do not think that it is material that it should be done in that form, since the appropriation may be made out of the State's general fund.
A judgment against the officer under amended sections 890 and 891, supra, is not one to compel him, nor anyone else, to use State funds to reimburse the plaintiff as said in the Oklahoma case, supra, to have been so. The State is not required by the judgment to do anything. But the State may make an appropriation for an anticipated proper purpose payable upon a named condition. In the Oklahoma case, supra, the opinion stresses the fact that the suit is to compel the officer sued to use State funds for a certain purpose, and so it was held to be a suit against the State. But the theory of the O'Connor case, supra, is that the legislature made what amounts to an appropriation to provide for "any difficulty in which the Secretary of State otherwise might find himself in case of a disputed tax." I do not think it is material whether the State officer is named as such in the suit, or is sued individually. A judgment against him as an officer of the State is not one which by itself (unaided by an appropriation) requires or authorizes him or anyone else to use State funds in its payment. But the judgment, whether against him as an officer or as an individual, is the existence of the condition on which the legislative appropriation is payable. It is for a proper purpose, because it satisfies the State's moral obligation to repay a tax which the State has received but which it was not due to receive.
The theory is the same which supports the statute providing for the State Board of Adjustment. Sections 333 to 344, Title *Page 588 55, Code; Hawkins v. State Board of Adjustment, 242 Ala. 547,7 So.2d 775.
I am authorized to say that Mr. Justice STAKELY and Mr. Justice SIMPSON concur in the foregoing treatment of this subject.