Calhoun County v. Watson

• Citation: 152 Ala. 554,44 So. 702
• Parties: CALHOUN COUNTY v. WATSON.
• Decision Date: 02 July 1907
• Court: Supreme Court of Alabama

44 So. 702

152 Ala. 554

CALHOUN COUNTY v. WATSON.

Supreme Court of Alabama

July 2, 1907

On Rehearing, 1907.

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action by I. E. Watson, clerk of the Calhoun county circuit court against Calhoun county. From a judgment for plaintiff defendant appeals. Reversed and remanded.

This is an action by I. E. Watson, clerk of the circuit court of Calhoun county, against the county, to recover for ex officio services alleged to have been performed for the county for the second half of the year 1905 as clerk of the said circuit court. It is averred that said account was itemized and sworn to by plaintiff, and was presented to the commissioners' court of said county for allowance, and was reduced by said court to $82.25, and plaintiff refused said reduction. It is then averred that the amount sought to be recovered is a fair and reasonable value for performing said ex officio services for said part of said year. The second count is as follows "Plaintiff claims of the defendant the further sum of $175, due to the plaintiff from the defendant for services performed by the plaintiff for the defendant during the second half of the year 1905, and the plaintiff avers that during the said second half of the year 1905 he was clerk of the circuit court of said county of Calhoun, and that said sum is due him for performing as such clerk official duty not otherwise provided for. Said account was itemized and sworn to by plaintiff, and presented to the commissioners' court of said county, and the same was by said court reduced to $82.25." It is then alleged that that amount is a fair and reasonable price for the services. What is said about the demurrers to the complaint in the opinion of the court is deemed sufficient. The plaintiff was allowed to prove over the objection of the defendant that he attended court 13 days, and that a reasonable price for such service was $2 per day.

The oral charge of the court excepted to was as follows "When you take into consideration the evidence as to what the Code allows for performing such services." The following charges were given at the request of the plaintiff: (1) "The court charges the jury that every service the plaintiff is required by law to perform, and for which no fee or charge is specified, or that cannot be legally charged to either the plaintiff or defendant in any cause before the court, is an ex officio service, for which the plaintiff is entitled to a fair and reasonable compensation, to be paid by the county." (2) "The court charges the jury that the plaintiff is entitled under the law to a fair and reasonable compensation for all ex officio service performed by him, which is required by law to be performed, not only such an amount as the commissioners' court may determine the plaintiff to be entitled to receive, but the plaintiff is entitled to receive such an amount as the jury may determine from the evidence in this case, not to exceed the amount claimed in plaintiff's complaint." (13) "Whatever the proof shows the plaintiff's services, for which he is entitled to charge in this case, are reasonably worth, it is the duty of the jury to allow, regardless of the amount that the commissioners may have allowed the plaintiff for said services." There was judgment for plaintiff, and defendant appeals.

Knox, Acker & Blackmon, for appellant.

Tate & Walker, for appellee.

ANDERSON J.

It appears that section 1372 of the Code of 1896, in providing for ex officio services for circuit clerks, says: "Such sum as may be allowed by the court of county commissioners not exceeding per annum $200"--making an exception as to the amount to the extent of $500 for Calhoun and a few other counties. If this section stood alone and controlled in the case at bar, it might be that the sum to be allowed would be discretionary with the commissioners' court in so far as it did not exceed the maximum. But section 1363 of the same Code, in providing for the presentation and allowance of claims for ex officio services, says: "The compensation allowed shall be the fair and reasonable value of the services, in no case to exceed two hundred dollars per annum, unless otherwise provided by law." There is an apparent conflict between these two sections; for one leaves the sum to be allowed to the discretion of the commissioners' court, while the other requires them to allow such compensation as is the fair and reasonable value for said services. In tracing the history of these two sections, we find that section 1363 is of more recent enactment, and must be construed to modify and amend section 1372, so far as there may be any necessary conflict or incongruity between the two sections. Gunter v. State, 83 Ala. 96, 3 So. 600; Steele v. State, 61 Ala. 213; Zaner v. State, 90 Ala. 651, 8 So. 698. The quotation from section 1372 of the Code of 1896 was contained in the Code of 1852 as section 3043, and was continuously brought down to the Code of 1896, while section 1363 appears for the first time in the Code of 1876 as section 5025, and was amended before getting into the Code of 1896. The plaintiff, therefore, had the right to sue the county for his ex officio services, and to recover such sum as was a fair and reasonable compensation for same, not to exceed the maximum, upon averment and proof of a compliance with section 13 of the Code of 1896. Shinbone v. Randolph County, 56 Ala. 183; Schroeder v. Colbert County, 66 Ala. 137. The demurrer...