I am not in agreement with the holding of the majority of the Justices in their finespun theory that the Judge of Probate is a mere automaton — a stooge or tool — of the Court of County Commissioners, in the disbursement of the funds of the county garnered by taxation for governmental purposes. The signature of the Judge of Probate to warrants or checks issued in payment of claims and allowances, audited and allowed by the court of which he is a part, is next to the final act in the process of disbursement of public funds, set up by law as a safeguard against wrongful conversion of public funds of the county. While the issuance of the warrant is a ministerial act in the process of disbursement, it does not relieve the Judge of Probate of the duty of determining for himself whether or not the claim is a lawful claim in the first instance. If it is not a lawful claim but constitutes a wrongful conversion of the money of the county, it is the duty of the Judge of Probate to contest the same, by refusing to issue the warrant or check. McGough, Probate Judge, v. State ex rel. Stovall, Ala.Sup.,57 So.2d 527.1 The reports of the decisions of this court are full of just such controversies. Nor is the treasurer justified in paying warrants issued by the Judge of Probate, if issued for claims not authorized by law. Mobile County v. Williams, Judge,180 Ala. 639, 61 So. 963.
The defendant in this case, as the evidence shows, knew that the office of which he was the incumbent paid more than five thousand dollars per annum. He also had *Page 94 knowledge that the statute provided that such incumbent was not entitled to an allowance for ex officio public road services. Nevertheless, he continued to file claims for such services, his excuse being that he thought the law was unconstitutional. Still he took no steps to test its constitutionality. The law is a general law, applicable to all the counties of the state. It does not violate § 110 of the Constitution. By repeated amendments to the Constitution of 1901, uniformity as to fees and allowances of public officers has effectually been destroyed. Almon v. Morgan County, 245 Ala. 241, 16 So.2d 511; Dillon v. Hamilton, Tax Collector, 230 Ala. 310, 160 So. 708.
The record presents a case where a man, honored by the people, through cupidity and greed has breached their confidence by taking from the public treasury funds and converting the same to his own use, in violation of the statutes under which the indictment was drawn. Code of 1940, Tit. 14, § 127.
I am of opinion that the holding of the majority emasculates the last cited section of the code, as applicable to Judges of Probate, and saddles the entire responsibility of guarding the public funds on the Courts of County Commissioners. I am further of opinion that the judgment of the Court of Appeals should be affirmed.
Therefore, I respectfully dissent.