Jefferson County v. O'Gara

• Decision Date: 30 June 1939
• Docket Number: 6 Div. 473.
• Citation: 29 Ala.App. 281,195 So. 267
• Court: Alabama Court of Appeals
• Parties: JEFFERSON COUNTY v. O'GARA ET AL.

195 So. 267

29 Ala.App. 281

JEFFERSON COUNTY v. O'GARA ET AL.

6 Div. 473.

Court of Appeals of Alabama

June 30, 1939

Rehearing Denied Oct. 3, 1939.

Affirmed after Return by Supreme Court Jan. 16, 1940.

Rehearing Denied April 2, 1940.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action in assumpsit by Helen Veitch O'Gara and Elizabeth Veitch Jones, residuary legatees of the estate of Edward A. Veitch deceased, against Jefferson County to recover salary alleged to be due deceased at time of his death. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Certiorari dismissed by Supreme Court in Jefferson County v O'Gara, 195 So. 277.

Clarence Mullins, of Birmingham, for appellant.

Sam T Huey, of Bessemer, for appellees.

BRICKEN Presiding Judge.

Plaintiffs brought their action in assumpsit against said County to recover certain sums of money as the unpaid salary of said Edward A. Veitch, alleged to be due him at the time of his death, for services rendered by him as Deputy License Commissioner of said County in the months of April, May and June, 1933, and September, 1934.

A judgment was rendered by the court below in favor of said plaintiffs for the sum of $292.50 and costs, and from that judgment said Jefferson County, defendant, appeals.

The complaint filed by plaintiffs against defendant in the court below contained, originally, eight counts. Four of these counts were eliminated by demurrer and upon the remaining four counts, viz: counts 2, 4, 6 and 8, issue was joined between the parties.

Counts 2, 4 and 6, each respectively, claimed the sum of $75 balance of salary for the months of April, May and June, 1933, while count 8 claimed the sum of $67.50 balance of salary due for the month of September, 1934.

It was alleged in each of said counts 2, 4, 6 and 8 that the amount therein sued for was due for salary of said Edward A. Veitch for work and labor done by him for the defendant, and at its request, during the month specified in said counts, and that the said Edward A. Veitch was, at the time said services were rendered, Deputy License Commissioner of Jefferson County, Alabama, Bessemer Division, and that as such officer he was duly authorized and required to perform all of the duties of said office throughout the entire duration of each of said months.

Each of said counts of the complaint also aver that the said Edward A. Veitch filed his claim, duly itemized and sworn to, for the amount therein sued for, with the County Commission of said County, on towit: March 18, 1936, and that said claim was disallowed by said County Commission on, towit: October 11, 1936, and that thereafter on, towit: January 11, 1938, plaintiffs, as residuary legatees of the estate of Edward A. Veitch, deceased, filed an additional claim for the amounts sued for in each of said counts, with said County Commission, and that said claim was disallowed by said County Commission on, towit: May 11, 1938. Plaintiffs filed their suit in the court below on July 8, 1938, as appears from the endorsement of the clerk of the court below upon the complaint.

The defendant filed its demurrer to said complaint, assigning 11 separate grounds of demurrer, one of which was that said complaint did not state a cause of action against the defendant. This demurrer, as has been noted, was sustained as to all counts of the complaint except counts 2, 4, 6 and 8 thereof, to which said demurrer was overruled. Thereupon the defendant filed its plea of the general issue, in short by consent, to counts 2, 4, 6 and 8 of said complaint, each separately and severally, with leave to give in evidence any matter, which, if well pleaded, would be in defense of said suit, and to have effect as if so pleaded, and with the like right to plaintiffs to give in evidence any matter, which, if well pleaded, would be admissible in reply to such defensive matter, and to have effect as if so pleaded.

The issue between plaintiffs and defendant was, as set out in said counts 2, 4, 6 and 8 of said complaint and in said plea, submitted to the court below for its judgment thereon upon an agreed statement of facts, a copy of which is incorporated in the transcript filed in this court.

It is the contention of plaintiffs (appellees) that Edward A. Veitch, their deceased testator, was a county officer of Jefferson County; that his term of office was six years; that he was entitled to receive a salary of $225 per month for the services performed and duties discharged by him as such county officer; that it was the duty of the defendant to pay this salary; that his term of office did not expire until July 17, 1937, on which day any balance of salary earned by him in the months of April, May, and June, 1933, and September, 1934, might have been paid under the provisions of section 2713 of the Code of Alabama, 1923; that his claim for $292.50 balance of salary, filed with the County Commission of Jefferson County on March 18, 1936, was not then barred by the provisions of section 228 of the Code 1923, because his term of office had not expired, and, furthermore, that claims of county officers for official salaries do not belong to that class of claims which require an audit and allowance by the governing body of the county, and hence their suit was not barred and they were entitled to recover.

It is the contention of the defendant (appellant) that Edward A. Veitch, plaintiffs' deceased testator, was not a county officer of Jefferson County in the months of April, May and June, 1933, and September, 1934, when the services described in the complaint were rendered; that he was then, and at all times, a mere employee of the county; that said employee was appointed to his position by the County Commission of said County; that his compensation was fixed by said Commission; that if said Commission deemed it necessary, for the public good, to put said employee upon an enforced ten days' vacation, without pay, during said months and thereby reduce his compensation to the amounts actually paid him for each of said months, said Commission had the legal power and authority so to do; that the claim of plaintiffs' testator accrued, if it accrued at all, and was payable on the last day of each of said months; that it was necessary for said County Commission to audit and allow, or disallow, said claim; that said claim was not presented to and filed with said County Commission for audit and allowance until more than twelve months after the same accrued, or became payable; that at the time of presentation and filing it was barred by section 228 of the Code 1923; that plaintiffs' suit was prohibited by section 5680 of the Code 1923; that the trial court erred in overruling defendant's demurrer to counts 2, 4, 6 and 8 of plaintiffs' said complaint; that the trial court erred in rendering a judgment for plaintiffs and in refusing to render a judgment for the defendant.

1. This Court does not agree with counsel for appellant in his contention that Edward A. Veitch, plaintiffs' testator, was not a county officer of Jefferson County, Bessemer Division, during the time he was actually serving and acting as Deputy License Commissioner of said County, in the Bessemer office, having actual charge and control of that office, as admitted by appellant.

Any person, executing an agency of the State, under the authority of a public law, is an officer within the generic meaning of the term. The statute (Gen'l. Acts, Alabama, 1931, p. 522) created the office of License Commissioner of Jefferson County, Alabama, and provided that the officer (the License Commissioner) should be appointed by the County Commission of said County. The Act fixes the term of office for the incumbent at six years, and his salary at $5,000 per annum.

The duties of the License Commissioner are declared by the statute in broad and comprehensive terms, among which is the appointment of such clerks and assistants as he may deem necessary for the proper discharge of the duties of said office. The number of clerks and assistants to be appointed by said License Commissioner is to be determined by the County Commission, which body is required to fix the amount of salary, or compensation, to be paid to each, and which body is also required to approve said appointments before they become effective.

Eugene B. Henry was appointed License Commissioner of Jefferson County by the County Commission of said County, under the provisions of said statute, on July 17, 1931, and immediately qualified as such officer by executing an official bond and taking the oath of office.

By the terms of an Act of the Legislature of Alabama, approved September 16, 1915 (Gen'l.Acts, Alabama, 1915, p. 549), all county officers of Jefferson County are required to keep and maintain a branch office at Bessemer for the transaction of all business arising in the Bessemer judicial division of said County, and to appoint deputies, who shall at the time of their appointment and during their term of office be qualified electors, residing within the Bessemer Division of said County, and who shall at all times be in charge of the office of their principals, and who are authorized to discharge all ministerial duties, and perform all acts of their principals that could be performed by their principals that are not strictly and exclusively nondelegable, and for all such acts said deputies are held responsible on their official bonds.

Said Act also requires that said county officers shall, before permitting said deputies to enter upon the discharge of their duties, require said deputies to take the oath of office and to enter into bond in the sum of not less than two thousand nor more than ten thousand dollars and made payable and...