Baldwin v. Kouns

• Decision Date: 12 July 1887
• Citation: 81 Ala. 272,2 So. 638
• Parties: BALDWIN v. KOUNS.
• Court: Alabama Supreme Court

2 So. 638

81 Ala. 272

BALDWIN v. KOUNS.

Supreme Court of Alabama

July 12, 1887

Appeal from circuit court, Montgomery county.

Application for mandamus to medical examiner refusing to make examination and issue certificate as to color-blindness.

Troy, Tompkins & Loudon, for appellant.

Jones & Falkner and Watts & Son, contra.

CLOPTON J.

By "An act for the protection of the traveling public against accidents caused by color-blindness and defective vision," approved February 28, 1887, all persons affected with color-blindness and loss of visual power, one or both, to the extent defined in the requirements of the act, are disqualified from serving on railroad lines within this state in the capacity of locomotive engineer, fireman train conductor, station agent, switchman, flag-man gate-tender, signal-man, or in any other position which requires the use or discrimination of form or color signals; and for any person to serve in any of the capacities mentioned without having first obtained a certificate of fitness for his position, in accordance with the provisions of the act, is made a misdemeanor. Examinations and re-examinations are required, under the act, on and after June 1, 1887, from and after which day it is declared the act shall be in force: "Provided, that those persons already in employment in said capacities on the first day of June, 1887, shall be allowed until the first day of August, 1887, in which to procure the necessary certificates." For the purpose of making the examinations, it is made the duty of the governor to appoint as examiners a suitable number of properly qualified medical men, and to distribute them through the state as to best subserve the convenience of all parties concerned. Section 5 provides: "That any one of the examiners is hereby authorized to make the examination and issue the certificates required by this act, and for each and every such examination he shall be entitled to a fee of three dollars." Acts Ala. 1886-87, p. 87.

The appellee, being a train conductor in the employ of the Louisville & Nashville Railroad Company, applied to appellant, one of the examiners appointed by the governor, for examination, and, if found qualified, for the necessary certificate. While appellant offered to make the examination, he stated that he would not issue a certificate to appellee, though qualified, unless he would pay the fee for the examination, assigning as the reason that he had previously examined several employes, and the company had refused to pay the fees, declaring that they intended to contest the liability and the constitutionality of the statute. The appellee declined to pay the fee, and instituted this proceeding for a mandamus to compel the examiner to examine him; and, if found fit for his position, to give him the requisite certificate.

A public officer is, beyond controversy, entitled to compensation for his services; and the general rule is that if a statute prescribes the fees which the officer shall receive, and omits to specially provide when, how, or by whom they shall be paid, the person at whose request the service is rendered is liable, and the officer is entitled to payment as the services are performed. People v. Harlow, 29 Ill. 43; Ripley v. Gifford, 11 Iowa, 367. If there was no provision of the statute relating to the payment of the fee allowed the examiner other than the fifth section, there could be no serious controversy as to the liability of the applicant for examination, and that the examiners would be justified in refusing to make the examination, and to issue the certificate, on his declaration that he would not pay the fee. But the third section expressly and in unambiguous terms declares that the examination and re-examinations required shall be " at the expense of the railroad companies;" and in the same section it is made a misdemeanor for any railroad company, officer or agent of the same, to employ in any of the capacities specified a person who does not possess a certificate of fitness, issued in accordance with the requirements of the act. Comparing and construing the two sections, the fifth fixes the amount of the fee, and the third provides by whom it shall be paid. When the services and fees are both regulated by statute, an officer cannot exact any fee not allowed; and if the statute further provides by whom, or the manner in which, the fees shall be paid, he cannot exact a fee other than as so provided, though he may have performed the services at the request of another party. Brophy v. Marble, 118 Mass. 548.

The statute requires examinations of all persons, and the possession of the...