State ex rel. Lindsey v. Howard

KNIGHT, Justice.

Petition for mandamus filed in the circuit court of Lauderdale county against S. B. Howard, as city clerk of the city of Florence, Ala., to require respondent to accept certain bonds issued by said city, in the matter of municipal improvements, as a partial payment in lieu of cost upon the municipal improvement assessment due by the relator to the city of Florence.

The court sustained respondent’s demurrer to the petition, and, the relator declining to plead further, the petition was dismissed, and from that decree the appellant has prosecuted the present appeal.

Appellant’s counsel have filed here in support of their contention a carefully prepared and forceful brief, which has been given careful consideration.

We have reviewed our recent holding in the case of Howard, City Clerk, v. State ex rel. McGarry, 146 So. 414 , bearing in mind, and giving due consideration to, section 2225 of the Code. We are of the opinion that said section can exert no controlling influence in the ease, nor do we think the section, when read and construed as a part of the contract, embodied in the bonds in question, presents the question now before us in a different light from the McGarry Case, supra.

We adhere to our holding in the above-stated ease, and are of the opinion, and so hold, that this case is controlled by the decision in the McGarry Case, supra, and upon the authority of that case, and of the case of H. J. Moore v. S. B. Howard, as City Clerk, etc., post, p. 219, 149 So. 249 , this day decided, the decree in this cause must be, and is, affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ„ concur.' .