McElderry v. Abercrombie

• Decision Date: 28 May 1925
• Docket Number: 3 Div. 681
• Citation: 104 So. 671,213 Ala. 289
• Parties: McELDERRY v. ABERCROMBIE, Superintendent of Education, et al.
• Court: Alabama Supreme Court

104 So. 671

213 Ala. 289

McELDERRY v. ABERCROMBIE, Superintendent of Education, et al.

3 Div. 681

Supreme Court of Alabama

May 28, 1925

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill for injunction by G.T. McElderry against John W. Abercrombie as Superintendent of Education, and W.B. Allgood, as State Auditor. From a decree sustaining demurrer to the bill complainant appeals. Affirmed.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Hugh D Merrill, of Anniston, and Steiner, Crum & Weil, of Montgomery, for appellees.

BOULDIN J.

This is a taxpayer's bill with the primary purpose of enjoining the state superintendent of education from drawing $2,000 per annum, as compensation for new and additional ex officio duties, required of him as executive officer of the state board of education. The bill shows that, under order or resolution of the state board of education, the superintendent is receiving such compensation in addition to the salary of $4,000 per annum attached to his office. The authority of the board of education to make the allowance is challenged. The appeal is from a decree sustaining demurrers to the bill.

We are reminded in brief for appellant that the law of fees and costs of public officers is penal, and no fee must be received, except in cases expressly authorized by law. Code 1923, § 7255. This section relates to fees and costs taxed against the parties to suits. Strictly speaking, laws fixing salaries and compensation for public officers out of public funds cannot be classed as penal. They are rather administrative, designed to compensate for services performed pursuant to law, that the government may properly function.

It is true, however, that he, who accepts public office, takes it cum onere, and can receive only such salary or compensation as is authorized by law. Torbert v. Hale County, 131 Ala. 143, 30 So. 453; State ex rel. Pollard v. Brewer, 59 Ala. 130. Salaries are usually fixed by express enactment. But it is within the power of the Legislature to delegate to administrative agencies, state or divisional, having special knowledge of the nature and quantum of the service, the fixing of the amount of the salaries or compensation.

It is not here questioned that a public officer may, when duly authorized by law, receive, beside the fixed salary of his office, compensation for services in performance of substantial new and additional duties attached to his office, without a violation of the constitutional provisions against dual office holding and increase of salary during his term. Tayloe v. Davis (Ala.) 102 So. 433. The amended bill questions the application of that rule to the case in hand.

On September 26, 1919, was approved an act of the Legislature "to provide a complete educational system for the state of Alabama." Gen.Acts 1919, p. 568. A catalogue of the several subdivisions of this general subject is set out in the title of the act. This act, with other legislation, is embodied in the "School Code of Alabama 1924." In general it provides for "a general system of public schools" throughout the state, under the supervision of the "state superintendent of education with the advice and counsel of a state board of education." School Code, §§ 4, 5. The state board of education created by the act was composed of the governor, six members appointed by him, and the "state superintendent of education, who shall be chairman and executive officer of the board." Acts 1919, art. 3, § 1, p. 570. The members are now increased to one from each congressional district. School Code, § 7.

In the reorganization of the entire department of education, the enlargement of its fields of activity, and creation of the state board of education, it cannot be well questioned that new and responsible duties were imposed upon its executive officer, ex officio duties of the superintendent of education. The duties were further enlarged by the act to promote "vocational rehabilitation" (Acts 1920, p. 137); and by an act providing for the physical examination of public school children, and for a system of physical education in the public schools. Acts 1920, p. 149. The General School Law of 1919 did not fix the salary of the state superintendent of education, but declared:

"He shall receive such salary as is fixed in accordance with law." Art. 4, § 2, p. 576.

This act did, however, provide for the expenses and per diem of members of the state board of education for a limited number of days in attending meetings and transacting the business of the board. Article 3, § 3, p. 571. This section does not deal with compensation for the services of the executive officer of the board, to be rendered at all times, and apart from the mere matter of attending meetings. Its relevancy to the issue here is whether the failure to make provision for compensation to the executive officer, as such, implies that no such additional compensation was intended. The salary of the state superintendent of education was dealt with in the general act to "fix the compensation of the several state executive officers," etc. Acts 1919, p. 1006. Therein the salary was fixed at $3,000 per annum during the ensuing term, and $4,000 thereafter. Page 1010.

Without more, it is not to be questioned that the added duties attached to his office, as executive officer of the board of education, would be covered by the salary.

Article 3, § 25, School Code (Acts 1919, p. 575) reads:

"The state board of education is specifically charged with the duty of equalizing public school facilities throughout the state, in so far as it may be practicable; and in order to make it possible to increase the length of school terms in rural districts, and to care for that and other worthy purposes for which no adequate appropriation has been made, including expenses and compensation of the members of the state board of education in the discharge of their official duties, the said state board of education is hereby empowered and directed to expend so much as it may deem proper of the amount set aside annually by legislative enactment as a revolving fund for the use of the state board of education, provided that at least eighty (80) per cent. of the amount appropriated, if used, shall

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