Rice v. Tuscaloosa County

• Decision Date: 30 October 1941
• Docket Number: 6 Div. 800.
• Citation: 242 Ala. 62,4 So.2d 497
• Parties: RICE v. TUSCALOOSA COUNTY.
• Court: Alabama Supreme Court

4 So.2d 497

242 Ala. 62

RICE v. TUSCALOOSA COUNTY.

6 Div. 800.

Supreme Court of Alabama

October 30, 1941

Rehearing Denied Nov. 27, 1941.

Appeal from Circuit Court, Tuscaloosa County; Tom B. Ward Judge.

Foster Rice, Madison & Rosenfeld, of Tuscaloosa, for appellant.

E. L. Dodson and Jones, Dominick & McEachin, all of Tuscaloosa, for appellee.

HARRIS, Special Justice.

The appellant was judge of the Probate Court of Tuscaloosa County from December 15, 1934, to November 15, 1936, during which time the method of his compensation was what is commonly known as the fee system.

By Sections 370-A and 370-B of the General Revenue Act of 1935 General Acts 1935, pp. 256, 564, 565, approved July 10, 1935 the legislature attempted to limit the compensation of all probate judges in the state, except the few who were by virtue of local acts compensated by salary, to six thousand dollars per annum; these sections by their terms required that all earnings of the office in excess of the stated amount and of certain fixed allowances for office expenses, be paid by the probate judge into the county treasury. October 1, 1935, was fixed as the effective date of the limitation.

During the three month period from October 1, 1935, to January 1, 1936, the earnings of the office held by appellant amounted to approximately thirteen thousand dollars in excess of the fixed allowances for office expenses.

Appellant, acting on the assumption that §§ 370-A and 370-B of the General Revenue Act of 1935 were valid, paid to appellee the approximate sum of seven thousand dollars, representing the earnings of the office over and above compensation to appellant in the amount of six thousand dollars and office expenses.

On June 30, 1938, the Supreme Court of Alabama in the case of Houston County Board of Revenue v. Poyner, 236 Ala. 384, 182 So. 455, rendered judgment declaring said §§ 370-A and 370-B to be unconstitutional and void. It was after this decision, and not until August 20, 1938, that appellant presented his claim to the county for a refund of excess earnings which he had paid to it on the theory that his compensation had been limited by these sections of the revenue act. Upon the disallowance of his claim appellant filed suit against the county. In that suit the circuit court sustained a demurrer to the complaint and, because of that adverse ruling, appellant took a nonsuit and appealed. Code 1923, § 6431, Code 1940, Tit. 7, § 819. On appeal the judgment of the circuit court was affirmed by a divided court, the majority holding that appellant's claim against the county accrued on the date he paid the money to it, and, no claim having been presented to the county within twelve months after that date, the claim was barred by our statute of nonclaim (Code 1923, § 228, Code 1940, Tit. 12, § 118), and also that the money having been paid voluntarily with knowledge of all the facts could not be recovered. Rice v. Tuscaloosa County, 240 Ala. 4, 198 So. 245.

Appellant later brought this second action to recover the same money sought to be recovered in the first, and the circuit court sustained demurrer to the complaint, raising the questions decided in the first action and the further point that the action was barred by the judgment in the first action, a question not necessary to be passed upon on this appeal.

The complaint consists of five counts. It does not appear from either of the last four counts that appellant presented his claim to the county within twelve months after the payment, but it is averred in two of these counts that claim was presented within twelve months after the decision in Houston County Board of Revenue v. Poyner, supra. It is alleged in the first count that the money was paid to the county in various amounts at various times, the last payment being in May, 1938, and that the claim was presented on August 20, 1938, within twelve months after the last payment.

The point for decision in so far as the statute of nonclaim is concerned, as pointed out in the dissenting opinion in Rice v. Tuscaloosa County, supra, is: When did appellant's claim accrue or become payable? Appellee contends that the true date is that on which the money was paid to the county, while appellant says that it is the date on which the Supreme Court of Alabama declared §§ 370-A and 370-B to be invalid.

After considering the applicable authorities, I am fully persuaded that the law of the case as to this feature is with the appellee.

It is unquestionably true that the sum of money in controversy was the property of the appellant and that the county did not have a valid claim to it. It is also true that appellant paid his money to the county and received nothing in return. But it must also be considered that a statute of this state requires that: "Claims barred if not presented.-All claims against counties must be presented for allowance within twelve months after the time they accrue, or become payable, or the same are barred, unless it be a claim due to a minor, or to a lunatic, who may present such claim within twelve months after the removal of such disability."

This statute of nonclaim (Code of 1923, § 228) is a part of a comprehensive statutory scheme governing the financial affairs of counties. It is a matter of common knowledge that the annual expenditures of counties closely approximate their revenue for corresponding periods. Fiscal years are established and the law requires the adoption of budgets. One purpose of the statute of nonclaim and the fixing of the twelve month period within which claims against a county can lawfully be presented is to prevent and guard against excessive and embarrassing demands on the revenue of a particular year, growing out of occurrences in the too distant past.

A hypothetical case aids in the solution of this question. Suppose that appellant, on the day after he paid the money to the county, had decided to contest the validity of the limitation on his compensation, and had filed claim against the county, and upon the disallowance of his claim had filed suit for recovery of the money paid. In this suit, leaving aside for the present the principle of voluntary payment, the plaintiff would have prevailed, because the statute limiting his compensation was unconstitutional and would have been so declared.

It thus appears that the claim in question accrued and became payable on the day the money was paid to the county. This position is well supported by the authorities.

The case of Montgomery County v. City of Montgomery, 195 Ala. 197, 70 So. 642, is conclusive on this point. That case was an action by the county against the city to recover money paid under a statute afterwards held unconstitutional (City of Montgomery v. Montgomery County, 185 Ala. 281, 64 So. 588; County of Montgomery v. City of Montgomery, 190 Ala. 366, 67 So. 311), and the defense was the statute of nonclaim applicable to cities. The Court held that the claim of the county accrued on the day it paid the money to the city. Mr. Justice Thomas wrote the opinion of the Court, in part as follows [195 Ala. 197, 70 So. 643]:

"Here the property in dispute is money paid out under a supposed authority of law, a statute afterwards construed by this court and held not to warrant the payments in question. Both city and county officials acted under an honest misapprehension of the law. There is no pretense that fraud was committed by any one. The city, under a mistake of law, received the money now claimed by this suit, and has no doubt disbursed it to third parties, in the application of this road and bridge fund. The county did have a proprietary right, and so, an alienable title to its moneys. * * *

"The statute in question (section 1191, Code) is not technically a statute of limitations, but is one of nonclaims (Anderson v. City of Birmingham, 177 Ala. 302, 58 So. 256), and is analogous to the statute requiring presentation of claims to an administrator within a prescribed time, and providing that on failure to be so filed they shall be barred. A similar statute of nonclaims, in favor of counties, section 150 of the Code of 1907, has been applied to the claims of a city against a county. [State ex rel.] City of Mobile v. Board of R. & R. Com'rs, 180 Ala. 514, 61 So. 814. * * *

"When the payment was made by the county to the city under a misapprehension of the law, it became an accrued claim in favor of the county, and a liability of the city, as of that date (Mobile County v. Williams, 180 Ala. 639, 61 So. 963), and, of necessity, the statute of nonclaims began to run from such date of accrual (Clarke v. School District, supra [84 Ark. 516, 106 S.W. 677]; Johnson v. Black, supra [103 Va. 477, 49 S.E. 633, 68 L.R.A. 264, 106 Am.St.Rep. 890])."

Closely analogous is the rule that money paid under a mistake of fact may be recovered without any demand for its return prior to the commencement of the action. Rutherford v. McIvor, 21 Ala. 750; Hinds v. Wiles, 12 Ala.App. 596, 68 So. 556; Smith v. Baldwin, 237 Ala. 423, 187 So. 192.

In Leather Manufacturers' National Bank v Merchants' National Bank, 128 U.S. 26, 9 S.Ct. 3, 5, 32 L.Ed. 342, Mr. Justice Gray wrote: "Whenever money is paid upon the representation of the receiver that he has either a certain title in property transferred in consideration of the payment, or a certain authority to receive the money paid, when in fact he has no such title or authority, then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use. His right of action...