Jefferson County v. Case

• Citation: 12 So.2d 343,244 Ala. 56
• Decision Date: 25 February 1943
• Docket Number: 6 Div. 113.
• Parties: JEFFERSON COUNTY v. CASE.
• Court: Alabama Supreme Court

12 So.2d 343

244 Ala. 56

JEFFERSON COUNTY v. CASE.

6 Div. 113.

Supreme Court of Alabama

February 25, 1943

Clarence Mullins and Harvey Deramus, both of Birmingham, for appellant.

Coleman Spain, Stewart & Davies and H. H. Grooms, all of Birmingham, for appellee.

GARDNER, Chief Justice.

Plaintiff George I. Case, Jr., in his suit instituted in January, 1941 recovered a judgment against Jefferson County for a portion of the sum claimed as "back salary" while employed in the office of the Tax Collector for said County, and from this judgment, defendant prosecutes this appeal.

Plaintiff's employment in the office began in 1928 and terminated November 1, 1936, when he resigned.

Originally his salary was by resolution of the County Commission fixed at $150 per month, but by subsequent resolution was reduced to $135 per month, effective August 1, 1932. In June, 1933 the County Commission adopted another resolution making a further reduction of ten per cent to remain in force for the three months of July, August and September, 1933. Thereafter plaintiff received a monthly salary of $121.50 with the exception of the periods wherein he was required to take a ten-day leave of absence without pay, a resolution applicable to all alike employed in various specified departments of the county.

It appears that the ten per cent reduction was not renewed by appropriate formal resolution, and in June, 1938, the Commission by resolution attempted to amend nunc pro tunc its minutes of September 12, 1933, so as to show the passage of a resolution as of that date continuing the reduction in salary of ten per cent to such a time as the Commission might determine that the financial condition of the County justified the elimination. But no matter of record is shown justifying an amendment nunc pro tunc and of consequence such amendment must be considered as legally ineffective. Jeffers v. Wharton, 240 Ala. 21, 197 So. 358.

Plaintiff therefore contends that as the County Commission speaks through its records, there was no ten per cent reduction following the three months provided for in the resolution of June 23, 1933, and that his salary was due him at the rate of $135 per month and no less, and that the ten days leave of absence without pay was likewise unauthorized.

After the passage of the resolution which made effective the ten per cent reduction, plaintiff received a monthly salary of $121.50, with exception of the periods when he was required by duly adopted resolution to take the ten-day leaves of absence without pay. During each of the months involved, plaintiff filed a claim with the County Commission on or about the last day of each of the months wherein he claimed the sum actually paid to him as and for salary for that particular month and received a check or voucher with the following endorsement thereon, which he signed: "The payment of this voucher is accepted in full settlement for services rendered as herein described." And it further appears that for each of the months involved, the payroll was made up by the Tax Collector, submitted to the County Commission, and each was approved by the Commission by resolution duly adopted, and in each such payroll the salary of Plaintiff was there stated and the sum so stipulated was the amount actually received by plaintiff for services rendered for that particular month and so accepted by him.

In 1932 Jefferson County's indebtedness was within and less than the constitutional debt limit, but for the year 1933 and each subsequent year, the County's indebtedness has continuously been beyond such debt limit and the steadily declining receipts of the County are made to appear.

The argument of counsel for the respective parties, in well prepared and helpful briefs, has taken a wide range. But, in view of our recent holding in answer to an inquiry from the Court of Appeals in State ex rel. Mantell v. Baumhauer, 12 So.2d 326 (here re-affirmed, State ex rel. Hyland v. Baumhauer, Ala.Sup., 12 So.2d 342), and on further study of the authorities there cited, we think our discussion here may be brought within a narrow compass.

Plaintiff relies in large part upon the principle this Court has recognized that the acceptance of less compensation by a public officer for his official services than that established by law does not estop that official from subsequently recovering the just and due legal compensation. Hamilton v. Edmundson, 235 Ala. 97, 177 So. 743.

This rule was established by the Court based upon the theory that it is against public policy there should be anything connected with such official duties bordering upon barter or trade as to such office and upon the further theory such public official should be able to render service free from fear of diminution in compensation which had been fixed by law. State Tax Commission v. Smith, 188 Ala. 432, 66 So. 61, 43 Amer. Juris. 147.

Illustrative of the evils to follow, if public office is to be made the subject of traffic, is the case of Robertson v. Robinson, 65 Ala. 610, 39 Am.Rep. 17, where the Court observed that the office then in question was "a place of public trust, in which the public have high interests, involving the performance of public duties, and which can not be made the subject of traffic, and can not become the matter of trade and bargaining."

But the effect of our holding in State ex rel. Mantell v. Baumhauer, supra, was to limit the court-made rule above to public officers, as such, and a declination to extend that rule to one who may merely hold a position of public employment.

The question of prime importance therefore, here to be considered, is whether or not plaintiff was a public officer within the meaning of the above noted rule.

In many instances, of course, no difficulty is presented in determining such a question, as in case of the Tax Collector himself and other such official positions of high public trust and responsibility, created by the legislature with a fixed compensation and term of office; and as to some holding important, but subordinate positions, the legislative intent is clear.

Illustrative is Scruggs v. State, 111 Ala. 60, 20 So. 642, 643, relating to the chief clerk in the office of the probate judge appointed pursuant to the statute and whose "power is but little less than that of the judge himself." And in Montgomery v. State ex rel. Enslen, 107 Ala. 372, 18 So. 157, some stress was laid upon the fact as to whether or not there was a fixed tenure of office.

In Jeffers v. Wharton, 240 Ala. 21, 197 So. 358, there was no tenure of office. But the legislative act in question did create an important and indeed a necessary office, that of a clerk of the newly established court with a salary maximum limitation of $1500, the exact amount to be determined, however, by the Commissioner's Court. The duties of the clerk, all of important public interest, were defined by the act and a bond for faithful performance of his duties was required, though his tenure of office was left to the discretion of the appointing power, the judge of the court. Yet we think a consideration of the entire act discloses that the conclusion reached that he was a public officer was entirely correct.

Though the case of Jefferson County v. O'Gara (cited by plaintiff), 29 Ala.App. 281, 195 So. 267, (Court of Appeals) does not appear here to have been reviewed upon the merits (Jefferson County v. O'Gara, 239 Ala. 3, 195 So. 277), yet there are many distinguishing features between that case and the one here considered, especially in view of the fact that the plaintiff in that case was in effect the License Commissioner of the Bessemer territory.

These illustrations serve to demonstrate that many factors are to be considered in determining the question at hand, and numerous authorities are cited in the annotated notes in 53 A.L.R. 595 et seq., and 118 A.L.R. 1458 et seq., which serve a like purpose.

To here review these authorities would extend the opinion to undue length and serve no useful purpose. We have carefully considered many of them. Judge Cooley, in People ex rel. Throop v. Langdon, 40 Mich. 673, makes the following observation on the question: "The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general."

In determining whether or not one was a public officer authorities have considered the fact that no bond nor official oath was required. And other...