Hamilton v. Edmundson, 6 Div. 235

CourtSupreme Court of Alabama
Citation177 So. 743,235 Ala. 97
Docket Number6 Div. 235
PartiesHAMILTON, Tax Collector, v. EDMUNDSON.
Decision Date16 December 1937

Appeal from Circuit Court, Jefferson County; W.L. Hogue, Special Judge.

Mandamus proceeding by Lacey Edmundson against J.W. Hamilton, as Tax Collector of Jefferson County. From a judgment awarding the writ of mandamus, the respondent appeals.


Ernest Matthews, of Birmingham, for appellant.

Kenneth Perrine, of Birmingham, for appellee.

THOMAS Justice.

The assignments of error challenge the rendition of judgment for petitioner in awarding the writ of mandamus.

This suit arose in the circuit court on a petition for writ of mandamus, duly sworn to, reciting that Lacey Edmundson, the petitioner, on the 23d day of April, 1931, was appointed qualified, and commissioned as deputy tax assessor, and as such he held office continuously until the 17th day of January, 1935; that under said appointment it was his duty to cause to be listed for taxation property which had escaped assessment and the tax had not been paid thereon; that during his incumbency of said office he made two escape assessments against certain personal property owned by the American Cast Iron Pipe Company, which assessments were made final on an appeal to the circuit court for Jefferson county. A judgment was rendered in that cause fixing the taxable value of the property so assessed by the petitioner at the sum of $57,500. It is alleged that the legal fee for the service of the petitioner in making said assessments was an amount equal to 20 per cent. of the total tax paid which amounted to the sum of $11,500. That petitioner had received the sum of $7,500 of the amount of $11,500 due to him as such officer, and there remains a balance due to him in the sum of $4,000.

The petitioner further alleged that it was the official duty of the defendant, as the tax collector of Jefferson county, to pay to the petitioner the sum of $4,000, and that he made due demands on the defendant officer for the payment of said sum and he declined to make said payment, although at the time of said demands the defendant officer had on hand funds derived from the payment to that defendant of said tax more than a sufficient sum to pay petitioner's said lawful claim. The petition prayed that a peremptory writ of mandamus issue to the defendant requiring him to pay to the petitioner the said sum of $4,000.

The defendant official filed an answer to the petition admitting the allegations therein contained; but set up the fact that the petitioner had agreed to accept the sum of $7,500 for his said service for making said assessment and had been paid said sum of $7,500 and executed a release for all fees and compensation due him as such deputy tax assessor, and that the petition for the writ of mandamus should be denied.

The cause was submitted for final judgment on the petition answer and exhibit. The court rendered a judgment awarding a peremptory writ of mandamus requiring the defendant to pay to the petitioner the said sum of $4,000. From this judgment the defendant appeals.

It is insisted by the respondent that, by reason of the acceptance of the stipulated sum for services the contract was executed and the liability was extinguished. In support of this contention counsel cite two decisions of this court, viz., Bradley v. Graves, 46 Ala. 277, where the payment vel non of a note to decedent was before the court, and the court said: "Whether the note belonged to the plaintiff, B. Graves, individually, or as guardian, the payment was properly made to him, and the payment was an extinguishment of the debt, although it continued to remain in his hands. Payment made to an intermediate holder of a note, indorsed in blank, whose name does not appear on the note, such holder being, really, the owner at the time, is a good payment. Richardson v. Farnsworth, 1 Stew. 55"; and Hemphill v. Moody, 64 Ala. 468, 475, where it was held that money paid under a mistake of law cannot be recovered by action, either at law or in equity; but, when money is paid to a person to whom it properly belongs, though under a mistake as to the right in which it accrues to him, the debt is extinguished, "and he can not again enforce payment of his claim in his lawful right." Mr. Justice Stone rested that decision on this observation: "Guided, as we have said, by the averments of the bill, Moody, the complainant, was liable to pay--was indebted--to Jerusha Ready's estate, to be distributed and paid to her next of kin, eleven or twelve hundred dollars; no more. He has paid, and they have received a larger sum than that, to which they had no other rightful claim. They can not demand a second payment, on the technical ground that, when the payment was made, it was erroneously supposed to be due on another account. Payment discharges a debt, no matter when, or by whom made."

It is thus noted that the foregoing decisions are not applicable to the instant pleading and facts; no question of an official's lawful compensation was involved.

The rule that prevails and to be here applied is that the acceptance of less compensation than that established by law for an official service does not estop that official from subsequently recovering the just and due legal compensation. Any other rule would be void on the grounds of public policy. Stewart v. Sample, 168 Ala. 270, 53 So. 182. The general authorities are collected in 46 Corpus Juris 1027. See, also, Pitsch v. Continental and Commercial Nat. Bank, 305 Ill. 265, 137 N.E. 198, 25 A.L.R. 164, and 22 R.C.L. 538.

The deputy tax assessor of Jefferson county is a public officer. General Acts of Alabama 1931, p. 295, Scruggs v. State, 111 Ala. 60, 20 So. 642, and Montgomery v. State, 107 Ala. 372, 18 So. 157. His compensation was fixed by the General Acts of 1923, p. 293, § 25-A.

It results from the general decisions and those in this jurisdiction that, when a public official has performed an official service and the amount of his compensation has accrued, a release executed by that official for a sum substantially less than the amount that has accrued to him and was due him under the law is without sufficient or valuable consideration and void. 53 C.J. 1200, and Alabama authorities under note 74; Maness v. Henry, 96 Ala. 454, 11 So. 410; Western Ry. v. Foshee, 183 Ala. 182, 62 So. 500; McCarty-Greene Motor Co. v. House, 216 Ala. 666, 114 So. 60; Abercrombie v. Goode, 187 Ala. 310, 65 So. 816; Cotton States Life Ins. Co. v. Crozier, 218 Ala. 173, 118 So. 327; Penney v. Burns, 226 Ala. 273, 146 So. 611; 83 A.L.R. 960, and 55 A.L.R. 184.

In Williston on Contracts, § 1730, p. 3025, the pertinent observation is made as to the appointment, payment, and discharge of compensation of an official, that: "As it is the duty of a public official charged with making appointments to make the best appointments possible without reference to private interests, and as it is expedient that those occupying public office shall have such inducements as its emoluments afford for the faithful performance of their duties, a contract to make a certain appointment or to influence the making of an appointment by such an official, or for an official to share the emoluments of his office with another, is invalid. For the same reason, a contract of one who holds a public office or of one who is a candidate for such an office, the emoluments of which are fixed by law, to take less than legal compensation is invalid. If the agreement is executed by the payment of the diminished emoluments, there are decisions, holding that no further claim can be made. But the opposite view, also supported by authority, seems better. Ohio Nat. Bank v. Hopkins, 8 App.D.C. 146; School City v. Hickman, 47 Ind.App. 500, 94 N.E. 828; Pitt v. Board of Education, 216 N.Y. 304, 110 N.E. 612." (Italics supplied.)

The first observation is supported by well-considered authorities and illustrated by the following decisions:

"A deputy sheriff, duly appointed and entitled by statute to receive from the sheriff a certain compensation, may recover the full statutory amount notwithstanding an illegal agreement with the sheriff to serve for a less sum. In such case the rule that a party to an illegal contract cannot enforce any right under it is not applicable, because the claim is under the statute and not under the illegal contract." Bodenhofer v. Hogan, 142 Iowa 321, 120 N.W. 659, 134 Am.St.Rep. 418, 19 Ann.Cas. 1073, 1075.
"A contract whereby a justice of the peace agrees to charge smaller fees in suits to be brought before him by a certain corporation than prescribed by statute, and that such fees shall not be collected unless they have been paid over by the defendants to the corporation, is contrary to public policy and void." Hawkeye Ins. Co. v. Brainard, 72 Iowa 130, 33 N.W. 603.
"In the case of People ex rel. Satterlee v. Board of Police, 75 N.Y. 38, 39, 42, the question was whether the compensation of a police surgeon was that fixed by statute, or that named in a resolution of a Board of Police under which he was appointed. He accepted the appointment and performed the duties of the office for more than two years, drawing only the salary fixed by the resolution, and which was less than that fixed by statute. The court of appeals of New York, speaking by Judge Miller,--all the members of the court who voted in the case concurred,--said: 'As the statute gave the salary, I think fixing the amount at a less rate by resolution could not make it less than the statute declared. There is no principle upon which an individual appointed or elected to an official position can be compelled to take less than the salary fixed by law'."

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