Rice v. Tuscaloosa County

• Decision Date: 25 January 1940
• Docket Number: 6 Div. 602.
• Citation: 240 Ala. 4,198 So. 245
• Parties: RICE v. TUSCALOOSA COUNTY.
• Court: Alabama Supreme Court

198 So. 245

240 Ala. 4

RICE v. TUSCALOOSA COUNTY.

6 Div. 602.

Supreme Court of Alabama

January 25, 1940

Rehearing Denied April 4, 1940.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by Fleetwood Rice against Tuscaloosa County to recover fees and compensation earned as probate judge and paid into county treasury under Gen.Acts 1935, §§ 370-A, 370-B, pp. 564, 565. From a judgment sustaining a demurrer to the complaint plaintiff takes a nonsuit and appeals.

Affirmed.

GARDNER FOSTER, and KNIGHT, JJ., dissenting.

Foster, Rice & Foster and J. Gordon Madison, all of Tuscaloosa, for appellant.

E. L. Dodson and L. C. Bell, both of Tuscaloosa, for appellee.

PER CURIAM.

Upon consideration of this cause in consultation, the Court concludes that the judgment of the court below is due to be affirmed, both upon application of our non-claim statute, Code 1923, § 228, and upon the principle of law applicable to voluntary payments. The Court deems unnecessary a discussion of these questions further than to state disagreement with the theories set forth in the dissenting opinion, which take this case from without the influence of said non-claim statute and the principle applicable to voluntary payment of money.

The judgment is accordingly here affirmed.

Affirmed.

ANDERSON, C.J., and THOMAS, BOULDIN, BROWN, and KNIGHT, JJ., concur.

GARDNER and FOSTER, JJ., dissent.

GARDNER Justice (dissenting).

This cause was originally assigned to the writer, and the following opinion prepared. But upon consideration of the cause in consultation, the opinion did not meet with the approval of the majority of the Court. However, the writer considers the question of importance, and therefore adopts the opinion originally prepared as expressive of his views in dissent, in which Mr. Justice FOSTER joins.

As we understand the argument of counsel for the respective parties to this litigation, there are two main points stressed upon which the ruling of the learned trial judge is sought to be sustained. The first relates to the statute of non-claim, and the second rests upon the principle of voluntary payment.

The court below placed its ruling upon the statute of non-claim, and we give first consideration to that question. It is clear enough that plaintiff paid these fees--here sought to be recovered--upon the presumed validity of sections 370-A and 370-B of the General Revenue Act of 1935 (General Acts 1935, pages 564, 565), subsequently invalidated as in violation of our Constitution. Houston County Board of Revenue v. Poyner, 236 Ala. 384, 182 So. 455. This authority, considered in connection with Houston County v. Martin, 232 Ala. 511, 169 So. 13, suffices to show plaintiff had a vested title in these fees. We do not understand there is any serious controversy in that respect.

But defendant insists plaintiff's claim was not presented for audit and allowance (section 224, Code of 1923) within twelve months after it accrued or became payable, as required under section 228, Code of 1923.

The pivotal question, therefore, is, when did plaintiff's claim accrue or become payable within the meaning of our statute of non-claim? Defendant insists that the claim accrued and was payable on the date the money was paid over to the custodian of the county funds, and that so considering that as the date of accrual, the statute of non-claim had created a bar.

Much reliance is had upon Montgomery County v. City of Montgomery, 195 Ala. 197, 70 So. 642, as being more nearly in point. But in that case the only matter before the public officials was the construction of a statute, concerning which no presumption was available as a guide to the public authorities.

Here, plaintiff, as a public officer, paid these fees over to the county in obedience to a law presumably valid in all respects.

In Irwin v. Jefferson County, 228 Ala. 609, 154 So. 589, 590, speaking of the disbursing officer, the Court said: "But the act was presumably constitutional (12 C.J. 791), and the argument overlooks the principle recognized in the decisions expressing the majority view, that the disbursing officer may well rest upon the title to the office conferred by virtue of the act presumably valid, and is not required to search further and determine its constitutionality."

And in Cooper v. Hawkins, 234 Ala. 636, 176 So. 329, 331, the following language is to like effect: "Nor need we advert to the fact that the rule of public policy which charges all persons with knowledge of the laws of the land has exceptions when applied to public officers and others acting on the presumption that laws enacted by the law-making body are valid, until they are declared invalid. Irwin v. Jefferson County, 228 Ala. 609, 154 So. 589. Section 2619 of the Code expressly extends protection to an officer paying out as well as the person receiving public moneys pursuant to positive statute prior to an adjudication that it is invalid."

But defendant insists these authorities are inapplicable as they have reference to public officials, and that the fees paid over by plaintiff were so disbursed by him as the owner thereof, and constituted a personal rather than an official act.

We need not stop to inquire as to the materiality of the distinction thus made in argument for the reason that, in our opinion, the premise upon which the argument rests is unsound. Plaintiff received these fees as a public official, and under the law as it was written he was under duty, as such official, to pay them over to the county. As such official he was accountable to the county, and chargeable therewith as a trustee in invitum, with a penalty attached for a failure to account. Houston County v. Martin, 232 Ala. 511, 169 So. 13; Houston County Board of Revenue v. Poyner, 236 Ala. 384, 182 So. 455.

So considered, therefore, plaintiff had the legal right, in making these disbursements, to assume the validity of the law under which the disbursement was made, without any duty on his part to search further and determine for himself its constitutionality. Perhaps he entertained the conviction there was no constitutional inhibition against the limitation upon his earnings as probate judge. See, dissenting opinion in Houston County v. Martin, supra. But, however that may be, he had the right to assume that the law, as passed by the legislature, was valid and binding, and to make the disbursement upon the strength of such assumption.

It subsequently developed, however, that the law was invalid, and those judges of probate who retained the fees and declined to obey the law as written could do so with impunity. The fees they thus retained were theirs, and the counties, having no interest therein, could of course raise no objection to their retention.

Plaintiff, however, saw fit to give obedience to the written law, presumably valid, and the answer to his suit for a recovery of these fees, which belong to him, is the statute of non-claim.

That plaintiff did file his claim within the twelve months' period following a binding and authoritative pronouncement by the Court that the act was invalid, is not questioned.

The question, therefore, for consideration, is, when under the statute of non-claim did plaintiffs claim become payable? Was the time to be computed from the date of disbursement, as in Montgomery County v. City of Montgomery, supra, or should it date from the authoritative pronouncement of the invalidity of the law under which the disbursement was made? We are persuaded that logic and common sense lead to an acceptance of the latter date. Certainly this is in accord with our sense of justice and fair play.

The statute of non-claim does not serve to destroy or extinguish the debt. It relates to the matter of remedy only, as we had occasion recently to observe. Covington County v. O'Neal, Ala.Sup., 195 So. 234. The county has received money which belongs to plaintiff. It is still the money of the plaintiff. But he is told he can have no judgment for its recovery for the sole reason that he followed the law as it was on the statute books, and which he had a right to assume was entirely valid and binding. Certainly if plaintiff considered the law valid, he could not have conscientiously made oath to any claim he may have desired to present. And it is clear enough he would not consider, in any event, there was any reasonable probability that the court of county commissioners would allow any such claim in the very teeth of the statute.

We do not understand any of the discussions found in the opinion of Norwood v. Goldsmith, 168 Ala. 224, 53 So. 84, to have been intended as a qualification of the statement in State ex rel. Norwood v. Goldsmith, 162 Ala. 171, 50 So. 394, to the effect that "the audit and allowance of claims against the county is the exercise of administrative or executive, not of judicial power." And clearly as applicable to this case, it cannot well be argued that the court of county commissioners was such a court as to be expected to act in a judicial capacity, and condemn the statute as violative of our Constitution.

These observations are made merely for the purpose of demonstrating the impracticability of a presentment by plaintiff of any claim for such fees prior to any authoritative pronouncement of invalidity of the law under which they were paid.

The statute of non-claim should, like all other statutes where ambiguity arises, be construed in the light of reason and common sense.

Under the law plaintiff was due to disburse these fees to the county's general fund. Presumably the law under which this duty arose was valid. Presumably also, therefore, he had no claim against the county until an authoritative pronouncement by the court held otherwise....