Macon County v. Abercrombie

• Decision Date: 01 May 1913
• Citation: 9 Ala.App. 147,62 So. 449
• Parties: MACON COUNTY v. ABERCROMBIE et al.
• Court: Alabama Court of Appeals

62 So. 449

9 Ala.App. 147

MACON COUNTY v. ABERCROMBIE et al.

Court of Appeals of Alabama

May 1, 1913

Rehearing Denied June 6, 1913

Appeal from Circuit Court, Macon County; S.L. Brewer, Judge.

Action by Macon County against M.B. Abercrombie and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

R.C. Brickell, Atty. Gen., and W.B. Bowling Sol., of Dadeville, for appellant.

R.H Powell and O.S. Lewis, both of Tuskogee, for appellees.

PELHAM J.

This action is brought by the county against the judge of probate and the sureties on his official bond to recover moneys collected by the judge of probate for services performed, or duties discharged, in relation to the public roads of the county, which the appellant contends he was not entitled to collect. These moneys were collected by the judge of probate under the provisions of an act of the Legislature to amend section 3720 of the Code (Acts 1911, p 154), which changes the amount fixed by section 3720 allowed as compensation to judges of probate for "discharging his duties in relation to public roads, on proof to the court of county commissioners that he has discharged such duties annually, to be paid out of the county treasury, not exceeding ninety dollars," to not exceeding $400 per annum. This act increasing the amount that may annually be paid out of the county treasury to the judge of probate for discharging duties in relation to public roads was approved April 1, 1911, and went into effect after the present term of office of the judge of probate began on the first Monday after the second Tuesday in January (section 5410) next after his election in November, 1910 (section 336), which term will not expire until January, 1917. Whether or not the present incumbent of the office of judge of probate during his term of office in which the act was passed would be entitled to collect the moneys under the provisions of the act approved April 1, 1911, which are sought to be recovered in this action, depends, under the inhibition contained in section 281 of the Constitution, and the proviso of section 68 of the Constitution, to the effect that allowances made by county commissioners to county officers shall not apply to compensation for ex officio services, on whether or not the increased compensation allowed the judge of probate during the present term of his incumbency of the office was an ex officio allowance.

When the framers of the Constitution of 1901 made use of the term "ex officio services" in section 68, as related to compensation for services by county officers, these words, used in such a connection, had a fixed meaning derived from long usage by the law-makers of the state in providing for compensation for this class of officers. The Legislature even before the adoption of the Code of 1852 provided for the payment of stipulated amounts to certain county officers "for all other official duties for the compensation of which no express provision is made by law." Code 1852, §§ 3043, 3046. This provision for an allowance for such services has been carried forward in all of the codifications of the laws of the state from that time to the present, and appears in the Code of 1907 in section 3720, and the act of 1911 amending this section. Acts 1911, p. 158. It is this provision for "all other...