This is an appeal from an order of the judge of the city court of Montgomery, refusing to grant a rule nisi on an application for a writ of mandamus to compel appellee to pay a warrant issued by the *173board of revenue of Lowndes county in favor of the relator.
On August 2, 1907, the Legislature enacted “An act for the improvement of the public roads of Lowndes county.” Said act creates the office of supervisor of roads, provides for his election and salary, also provides for overseers, their salary, etc., and provides for the levy of an annual tax of 25 cents on each $100, etc. — Loc. Acts 1907, p. 684. The petition alleges that petitioner paid said tax for the years 1907 and 1908, amounting to $289.08, under protest; that said act is unconstitutional; that he filed with the board of revenue of said county a petition setting up the unconstitutionality of said act; that said board allowed his claim and issued to him a warrant upon the treasurer of said county for said sum of money, “to be paid out of the moneys in the treasury created by the collection of such taxes”; that he presented said warrant to said treasurer, and he refused to pay the same, although he had in his hands a sufficient amount of the funds created by the collection of such taxes to satisfy the same.
In order to authorize a resort to this summary process to enforce the refunding of taxes which have been paid.into the treasury, it is evident that resort must be had to statutory authority. The petitioner alleges that his application to the board of revenue for said warrant was “by virtue of article 16, chapter 45, Code of 1907.” The first section of that article (section 2340) provides that “any person * * * who, through a mistake, or error, in the assessment or collection of taxes has paid to the county tax collector money that was not due from him for taxes, may file a petition in the court of county commissioners, asking that a warrant be drawn,” etc. It is evident that this section refers merely to cases where there has been some clerical mistake or error in *174the assessment or collection of taxes, and was not intended to clotbe the county commissioners or board of revenue with the judicial function of passing upon the validity of an act of the Legislature.
This court has held that “the audit and allowance of claims against the county is the exercise of administrative or executive, not of judicial, power.” — Jeffersonian Pub. Co. v. Hilliard, 105 Ala. 578, 17 South. 112; State ex rel., etc., v. Rogers et al., 107 Ala. 444, 456, 19 South. 909, 32 L. R. A. 520; Com'rs' Court v. Moore, 53 Ala. 25, 27. The Legislature subsequently provided for cases where tbe payment of taxes' bad been made “under mistake of law, or fact, upon any illegal tax assessment made under color of law,” and very properly provided that “the same shall be recoverable by appropriate proceedings at law, or in equity, against the proper parties, or their successors.” — Gen. Acts 1907, p. 639; section 2345, Code 1907.
It was certainly proper that so serious a matter as tbe constitutionality of an act of tbe Legislature should be referred to tbe adjudication of a duly constituted court. This the Legislature has done. Tbe judge of tbe city court committed no error in refusing to grant tbe rule nisi, and bis judgment is affirmed.
Affirmed.
' Dowdell, C. J., and Anderson, Denson and Sayre, JJ,. concur.