City of Anniston v. Douglas

• Decision Date: 18 March 1948
• Docket Number: 7 Div. 948.
• Citation: 250 Ala. 367,34 So.2d 467
• Parties: CITY OF ANNISTON v. DOUGLAS.
• Court: Alabama Supreme Court

34 So.2d 467

250 Ala. 367

CITY OF ANNISTON v. DOUGLAS.

7 Div. 948.

Supreme Court of Alabama

March 18, 1948

W. D DeBardeleben and Richard Emerson, both of Anniston, for appellant.

Knox, Liles, Jones & Woolf, of Anniston, for appellee.

The complaint is as follows:

'Count One. Plaintiff claims of defendant the sum of Two Hundred Seventy Dollars ($270) due by the defendant to the plaintiff as his salary as a police officer of the defendant for the period of, to-wit, December 1, 1946, to and including January 15, 1947, which sum of money, together with interest thereon, is still unpaid.'

FOSTER, Justice.

This is a suit by a policeman for his salary as such for forty-five days, from December 1, 1946, to January 15, 1947. Count one is the only count that went to the jury on the affirmative charge for plaintiff. The demurrer to that count was that it fails to state a cause of action. The demurrer was overruled. Plaintiff had judgment for the amount of his salary for the forty-five days.

The city officers were under civil service by virtue of the Act of August 4, 1931, General Acts 1931, page 676, Code 1940 Tit. 62, § 392 et seq. The city of Anniston is acting under that Act, and the Civil Service Board adopted rules and regulations, Rule 12-6, so adopted, authorizes the chief of the Police Department to suspend peremptorily any employee without pay and without the right of hearing for improper behavior, which shall 'not exceed thirty days in any one year of service.' The acting head of the Police Department suspended appellee who was a policeman in that department for a period of forty-five days from December 1 1946, to and including January 15, 1947.

Plaintiff notified the acting chief, who suspended him, that he did not consider his suspension legal or warranted, demanded a hearing by the board, denied improper behavior, and stated that he will expect his salary to be paid during said period, and is ready and willing to perform his duties as a policeman. No charges were preferred, and plaintiff did not serve during the period of suspension, and did not receive compensation, for which this suit is prosecuted.

The appellant in brief states that the appeal presents two questions: (1) Will general assumpsit lie for his salary for services as a policeman, when he performed no such service during the period for which compensation is claimed; and (2) does the suspension of forty-five days in any one year of service make the entire suspension void, or is it void only for the excess (fifteen days) over the 'thirty days in any one year of service.'

On the first question, appellant assumes count one to be a common count in assumpsit, and relies on the case of Henry v. Jefferson County, 234 Ala. 525, 176 So. 285. The plaintiff there was the daughter of the county treasurer, and was employed as clerk, and remained so for several years when she was discharged on a resolution of the Commissioners' Court based upon the 'Nepotism Act.' General Acts 1931, page 247 (afterwards held unconstitutional). The action was in indebitatus assumpsit, with the common counts. She was not under a contract, nor performing services prescribed by law as an officer. The Court held that in that suit in order for plaintiff to recover she must have rendered the services for the period in question, since it was a suit in indebitatus assumpsit, and denied recovery, although the 'Nepotism Act' was unconstitutional. The situation was similar to the one cited by the Court, which was Smith v. Sharpe, 162 Ala. 433, 50 So. 381, 136 Am.St.Rep. 52. In neither case was there a contract which had been breached by the defendant. It was there noted, as stated in the Henry case, supra, that to maintain indebitatus assumpsit on a contract, the party suing must perform all the stipulations on his part, leaving nothing to do but to pay the money. But there the question was whether plaintiff had complied with his contract as broker for services in selling certain property. His contract for compensation by way of commission required a compliance with it, since the other part did not hinder such a compliance. It is however observed that neither case was in respect to an employer and employee under contract for a specified term, where the employer had discharged the employee without legal cause, and thereby the employee was prevented by the wrongful act of the employer from performing his contract, nor in respect to the salary of one serving under statutory regulations.

Whereas, we have a long line of cases, not applicable in the Henry case, supra, holding that where an employee is discharged without his fault and in violation of his contract, he has either one of three remedies: (1) He may elect to treat the contract as rescinded and entirely abandoned, and sue on a quantum meruit for work actually performed; (2) he may at once sue for a breach of the contract by the defendant and recover damages for such breach up to the date of trial; or (3) he may wait until the expiration of the term of service, and sue for the stipulated wages agreed to be paid for the whole term. Strauss v. Meertief, 64 Ala. 299, 38 Am.Rep. 8, and cases cited; Holloway v. Talbot, 70 Ala. 389; Decamp v. Hewitt, 11 Rob., La., 290, 43 Am.Dec. 204, and note; 2 Add.Contr. § 897; Wood on Master and Servant, pages 237, 250, § 125; Wilkinson v. Black, 80 Ala. 329; Liddell v. Chidester, 84 Ala. 508, 4 So. 426, 5 Am.St.Rep. 387; Warten Cotton Co. v. McGuire, 206 Ala. 469, 91 So. 308; Ex parte Towle, 213 Ala. 129, 106 So. 60.

Those cases, in which service was not rendered, are dependent upon a contract of employment for a certain time when the employer prevented the employee from performing his contract. They are different from one in which service was rendered and accepted. For thereby a promise to pay is implied. Jefferson County v. O'Gara, 239 Ala. 3, 195 So. 277.

But those cases and those principles do not apply when there was no service rendered for the period in question, and there was no contract of employment.

This plaintiff was not serving under contract, but under law. He began service November 15, 1941, and was under civil service, with no term fixed by law, rule or contract. His salary was presumably fixed by the city authorities, though how that was done does not appear. It was in the amount of $180.00 monthly. But it is clear that he was not serving as an employee under contract, expressed or implied, but as an officer under law. The right to suspend him is not controlled by contract, but by law.

He is suing for his salary fixed by authority of law as an incident of his office, for the period of an alleged unlawful suspension. 43 Corpus Juris 686, notes 75 and 76. He may sue at law, though mandamus may be available. 43 Corpus Juris 704, section 1177.

We think the appropriate form of suit is the common law action of debt, rather than assumpsit, for his right is not dependent upon contract expressed or implied. An action of debt may or may not be based on contract. 26 C.J.S., Debt, Action of, § 2(c).

That is the appropriate form for the recovery of money provided by law when there is no contract, expressed or implied, to pay it, as for the recovery of a statutory penalty. Southern Car & Foundry Co. v. Calhoun County, 141 Ala. 250, 257, 37 So. 425; Spence v. Thompson, 11 Ala. 746; Turner Coal Co. v. Glover, 101 Ala. 289, 13 So. 478.

The theory is that when a statute creates a liability to pay money and prescribes no particular form of action for its recovery, an action of debt is the appropriate remedy. Strange v. Powell, 15 Ala. 452; Blackburn v. Baker, 7 Port. 284, 290; 26 C.J.S., Debt, Action of, § 2(9).

Such also is a suit for a penalty for the failure to satisfy a mortgage record. Drennen Motor Car Co. v. Evans, 192 Ala. 150, 68 So. 303.

It is the appropriate form of action to recover taxes due the state or county. Perry County v. Selma, M. & M. R. R., 58 Ala 546(12), 564...