(dissenting.) — I dissent from the judgment of the court, in this case, for the following reasons :
The appellants applied to the circuit court, at the spring term, 1869, for a rule nisi to the appellee, to show cause why a mandamus should not issue to compel payment of certain claims against the county which accrued to their testator in the years 1862,1863, and 1864, and to levy a tax for their payment. They allege that these claims had been audited and allowed by the commissioners court, and warrants had been issued for their payment, which are set out in the transcript; that these warrants had been presented to the treasurer of the county, and payment of them demanded and refused; that application had been made to the court to levy a tax, or make other provision for payment, which had also been refused.
This application was demurred to — 1st, because the commissioners court had no authority to borrow money; 2d, no legal liability against the county was shown; 3d, the application shows an illegal consideration. The demurrer was sustained, and hence this appeal.
It must be remembered, that this cause has not been heard on its merits, and that on demurrer the facts stated in the relation must be taken as true.
Eleven of the fourteen claims are orders by the court to the county treasurer, or the probate judge, to pay the amounts therein specified, to the persons named, for provisions furnished to the families of absent soldiers. The application states, that the persons for whom the debts were contracted were indigent persons.
The second and third grounds of demurrer are not sustained by the record. It is the duty of the commissioners court to provide for the poor in the county; and also to *123audit all claims against the county. The judge of probate is required to give tbe bolder of the claim a warrant on the treasury for the amount so allowed. — Revised Code, §§ 832, 907. The application alleges that this has been done, which establishes the existence of a legal liability.
No illegal consideration appears from the record. We can not presume that the families of soldiers relieved were those of persons in arms against the Union, or, if so, that they were ministered to because their male protectors were so engaged, without other necessity. The allegation is, that they were in destitute circumstances. It is well known that the conscription law of the Confederate States originated in dire necessity, and was executed with relentless severity. It is also true, that the more destitute portion of the people were especially its victims. The example of the Federal government, in supplying the necessities of the same class of persons, suffering from the same causes, both during and after the war, is in favor of the humanity and eharity which will relieve affliction, whether imposed by misfortune or offense.
The first ground of demurrer is an objection to only a portion of the application, while it professes to answer the whole. For this reason, it ought to have been overruled. Ferguson & Scott v. Baber’s Adm’rs, 24 Ala. 402; Wilson v. Cantrell, 19 Ala. 642.
As these claims ought to be paid, unless they fall under the denomination of debts contracted in aid of the rebellion, I think the rule nisi ought to have been granted, in order that their true character might be shown.
To this application the following response was made by PECK, C. J. — I have carefully read and considered the application for a rehearing, and have again, read the opinion of the court, delivered by me, and I remain satisfied with the correctness of the same. The present court of county commissioners are under no legal obligation to pay the debts contracted by the rebel court of county commissioners during the rebellion. The present court of county commissioners are in no legal sense the successors of the court called the court of county commissioners under the rebellion, or rebel government of this State. The rebel court of county commissioners could make no contract that can impose any legal obligation on the present court of county commissioners, or on the people of said county. The application for rehearing is refused.