Hodnett v. Yalobusha County

• Decision Date: 08 May 1922
• Docket Number: 22494
• Citation: 91 So. 454,128 Miss. 772
• Court: Mississippi Supreme Court
• Parties: HODNETT v. YALOBUSHA COUNTY

91 So. 454

128 Miss. 772

HODNETT v. YALOBUSHA COUNTY

No. 22494

Supreme Court of Mississippi

May 8, 1922

1. SCHOOLS AND SCHOOL DISTRICTS. Board of supervisors not empowered to change amount of school superintendent's salary fixed by statute.

Where the salary of a county superintendent of education is by statute definitely fixed at five per cent, of the school fund of the county, the board of supervisors has no discretionary power to change the amount allowed by the statute.

2. SCHOOLS AND SCHOOL DISTRICTS. Allowance by supervisors to county superintendent of less compensation than fixed by statute held not to preclude him from claiming full amount.

In such case an allowance by the board of less than the amount fixed by statute is not an adjudication binding upon the superintendent, nor is the superintendent estopped from claiming the full payment of amount fixed by the statute.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Yalobusha county, HON. CREEK L. RICE Judge.

Action by J. R. Hodnett against Yalobusha County. From judgment sustaining demurrer to declaration, plaintiff appeals. Reversed and remanded.

Judgment reversed and case remanded.

Creekmore & Creekmore, for appellant.

The circuit court in sustaining the demurrer held that the issuance of warrants by order of the board of supervisors for the amount shown by the declaration constituted an adjudication by the board of supervisors and that the judgment of the board was final, treating the right of the appellant to his salary as if it were a claim, arising out of contract, against the county. Counsel for appellee relied on two cases from this court to sustain his position, to-wit Arthur v. Adams, 49 Miss. 404; George County v. Bufkin, 117 Miss. 844.

In the case from 49 Miss., the facts were that the board of supervisors of Warren county allowed a claim for two thousand dollars to Adams and Speed and entered an order on its minutes. At a later time and after the adjournment of the board of supervisors they sought to rescind this order. In the litigation arising over this the court held that the claim was a judgment and valid until reversed by an appellate court. This decision was rendered in 1873 at which time one aggrieved by a decision of the board of supervisors had no remedy except by appeal. The claim was one for legal services rendered by Adams and Speed to the county.

In the case in 117 Miss., the facts were that Bufkin had presented a claim for sixty dollars to the board of supervisors of George county for the alleged value of a colt killed in process of dipping. The claim was allowed for forty dollars and thereafter he sued in justice court for sixty dollars. The court held in that case that the judgment of the board of supervisors was a judgment against the county for the amount of forty dollars and as it was not appealed from was final and binding upon the county. It will be remembered that under the statute governing injuries to stock in the process of dipping, in force at the time the injury occurred, there was no liability against the county, but the board of supervisors had power in their discretion to make such allowances for injuries as in their judgment was right and proper.

In both these cases the board of supervisors had discretion as to whether they should allow any sum to the claimant and if they allowed anything they had the discretion further to fix the amount of the allowance. These cases are not applicable to the case at bar, nor are the principles announced therein in point, because, as we think, the board of supervisors had no discretion as to the salary to be allowed the appellant, as the game was fixed by law and was an incident to the office.

Chapter 183, of the Laws of 1916, which is page 269, fixed the salary of the county superintendent of education at five per centum of the school fund, not to exceed eighteen hundred dollars. The declaration alleged that the school fund of Yalobusha county was in excess of thirty-six thousand dollars for each of the years in controversy and therefore the salary for each of the years as fixed by the said law was eighteen hundred dollars.

The last sentence of that statute undertakes to give to the board of supervisors power to suspend the operation of the statute until 1920. As it would take affirmative action on the part of the board of supervisors to suspend the operation of the statute if such suspension is relied upon as a defense, the appellee would have to plead it and could not raise it by demurrer.

It was also urged in the court below that the board of supervisors had discretion as to the amount of the salary of the superintendent of education because certain statutes provide for a deduction from the salary as fixed by law in the event that the superintendent of education failed to visit schools and to perform certain other duties as required by law. It might be that the board of supervisors could make deductions under some circumstances, but they had not such discretion in this case for the declaration alleged and for said term performed all the duties of the said office.

So it seems to us that this case is to be determined by the resolution of the question whether the action of the board of supervisors in allowing a salary at a less sum than that fixed by law and the acceptance thereof by the officer is such final judgment as will bar the claim of the officer or will estop the officer from claiming the balance of salary fixed by law.

This question has been before a number of courts in various forms and so far as we have been able to ascertain the courts uniformly, have held that an officer cannot estop himself from insisting on full payment by having received a less amount than full compensation and is entitled to sue for and receive the balance. Pitt v. Board of Education, 110 N.E. 612 (N. Y.); McMath v. U.S. 63 Law Ed. 177, 248 U.S. 151; Glavey v. U.S. 45 Law Ed. 1247, 182 U.S. 595; U. S. v. Andrews, 60 Law Ed. 541, 240 U.S. 90.

One who is entitled to statutory compensation cannot estop himself from insisting on full payment by having received a less amount in full compensation. Gallaher v. Lincoln, 88 N.W. 505; Abbott v. Hays County, 11 N.W. 780; 19 Ann. Cases 1073 and note; Annotated cases 1914D-824, Second Column note.

Contracts of a public officer to render services required of him for less than the compensation as provided, are unenforceable as against public policy. Bodenhofer v. Lyon, 134 A. L. R. 418 (Iowa); Town of Wesson v. Collins, 72 Miss. 844; Jackson v. Newman, 59 Miss. 385; Tupelo v. Beard, 56 Ib. 532; Mayor v. Lefferman, 4 Gill (Md.) 425, 18 Am. & Eng. Enc. L. p. 214, et seq., 4 Wait's Ac. & Def., 476, 479.

Although there had been settlements from time to time and the court held that as to the three per centum voluntarily paid in, Collins could not recover, yet on suggestion of error it was again held that, as to the five per centum commissions, although there had been settlements from time to time and suit was not brought until after the expiration of the term of office, they were a debt due from the city, not to be retained by the marshal and that as to these commissions fixed by ordinances the marshal could recover.

On the holding in the case of Town of Wesson v. Collins, supra, we confidently assert that the lower court was in error in overruling the demurrer and that the case should be reversed and remanded.

Fred H. Lotterhos, for appellee.

The county superintendent of education must look to the act of 1916, chapter 183, and to the Code of 1906, especially to sections 4498 and 4502, for authority to claim any salary from the county and all of the law must be taken and considered together. And no presumption can be indulged that appellant should have received the maximum salary.

"There is no presumption in law that a public official is to receive a salary." State v. Remore, Ann. Cas. 1914C. 1114.

We have no difficulty in giving assent to the rule that when a public officer claims compensation for the performance of duties appertaining to his office, either by way of fees or salary, he must be able to support his claim by pointing to some provision of law authorizing him to demand it." Peterson v. Butte, Ann. Cas. 1913B, 538.

That the legislature intended to invest the board of supervisors with discretion in matters relating to the payment of salary of the county superintendent of education, is clearly shown by a reading of chapter 125 of Code of 1906, and by reading chapter 183, of acts of 1916, in which act the discretion is with the board of supervisors to even suspend the provisions of that act entirely.

The courts must look to the statute itself for the legislative intent and cannot make law by judicial construction. Abbott v. State, 106 Miss. 340. "In construing statutes, the court should look to the legislative intent and the spirit and purpose of the statute and for that purpose the entire legislation on the subject should be considered." Holly Springs v. Marshall County, 104 Miss. 752.

The board of supervisors, in passing upon the claim of appellant each month, had all of the facts and law before them and their finding on the facts and law was shown by orders of allowance of the amounts found to be due under the facts and law, shown in the declaration filed in this suit. If the board of supervisors, after hearing proof of neglect of the county superintendent in visiting schools and in making his reports, and had been convinced of the truth of these facts, it could not have allowed him the maximum salary but would have been compelled to have allowed a smaller salary than is the maximum as fixed by chapter 183 of the Laws of 1916, and any other allowance would have been void.

To allow an account which is...