Schloss v. Hewlett

• Decision Date: 01 February 1887
• Citation: 1 So. 263,81 Ala. 266
• Parties: SCHLOSS v. HEWLETT.
• Court: Alabama Supreme Court

1 So. 263

81 Ala. 266

SCHLOSS v. HEWLETT.

Supreme Court of Alabama

February 1, 1887

Appeal from circuit court, Madison county.

Action for fees of office.

L W. Day and D. D. Shelby, for appellant.

Walker & Betts and Humes, Gordon & Sheffy contra.

SOMERVILLE J.

The suit is brought by the plaintiff, Hewlett, to recover of the defendant a large sum of money which he claims to have earned as fees of office through his own services, and those of 11 assistants or subdeputies, while acting as United States deputy-marshal, the plaintiff having acted in such capacity by appointment of the defendant, who was himself a United States marshal. The contract between the plaintiff and the defendant, Schloss, according to the plaintiff's version, was, in substance, briefly this: The plaintiff was to employ and pay his under-deputies, and was to receive three-fourths of all the fees earned by himself and them. These subdeputies were not sworn or commissioned, but it was understood that process was to be executed by them, which was done in the name of the marshal, and when done their acts were approved by him.

1. This contract was, in our judgment, illegal and void, as opposed to the public policy, for one or more reasons. While the laws of the United States fully provide for the appointment, compensation, and removal of deputy-marshals, they recognize no such office as the deputy of a deputy, or a subdeputy, marshal. Every marshal is authorized to appoint one or more deputies, whose powers, in executing process, are precisely the same as those of deputy-sheriffs; and when once appointed, they become officers of the United States, subject to removal by the judge of the district court, or by the circuit court of the particular district, at the pleasure of either. Rev. St. U.S. 1878, §§ 780, 788. Before entering upon the duties of his office, every deputy is compelled to take an oath to faithfully execute process; to well and truly, and without malice or partiality, perform the duties of his office; and to take only his lawful fees. Rev. St. U.S. § 782. This is a very solemn oath, and of great importance in binding the conduct and the conscience of these officers. The contract under consideration, in effect, provides for the appointment by the plaintiff of these unauthorized and unsworn officials, who, it is implied, are to execute important process, involving the liberty and affecting the property of our citizens, not only without authority of law, but in direct opposition to its express provisions. It has been held, very long ago in this state, that a sheriff could not delegate to another the power to appoint a deputy for him; and, where the subdeputy assumed to act under such void appointment, the sheriff could not ratify a levy made in his name by such appointee. Perkins v. Reed, 14 Ala. 536. The same principle will, of course, apply to a marshal and his deputies. The most that can be claimed for these assistants of the plaintiff is that they were officers de facto under the colorable, but illegal, appointment of the plaintiff. Having no appointment from the defendant, Schloss, and having wrongfully failed to qualify by taking the requisite oath of office, they were not officers de jure. State v. Carroll, 38 Conn. 449, 9 Amer. Rep. 409; Parker v. Kett, 12 Mod. 467; Joseph- v. Cawthorn, 74 Ala. 411; Cary

v.

State, 76 Ala. 78. It may be that the official acts of these persons, so far as the public and third persons are concerned, were as valid as if they were officers de jure, as often held in the case of officers de facto. But this rule, based, as it is, on principles of necessity and justice, was designed to mitigate evils growing out of a violation of the law, so far as they affect innocent parties,-not to legalize the illegal act from which they flow. It cannot be permitted to authorize the making of a contract which has in contemplation the violation of the law. State

v.

Metcalfe, 75 Ala. 42; 1 Whart. Cont. § 340. The public peace could scarcely be imperiled more seriously than by turning loose upon the country hordes of irresponsible persons, armed with the process of our courts, and, without the restraint of oaths or bonds, seizing the property of citizens, and arresting their persons. Yet this contract, impliedly, if not in express terms, authorizes and contemplates the doing of this very thing. The contract was illegal and void n toto, and no recovery could be had under it. Many rulings of the court were opposed to this view of the law, and were erroneous.

2. This contract is invalid for another reason. It violates the statutes of the United States governing the lawful compensation allowed deputy-marshals. These laws provide that "the allowance to any deputy shall in no case exceed three-fourths of the fees and emoluments received or payable for the services rendered by him, and may be reduced below that rate by the attorney general, whenever the returns show such rate to be unreasonable." Rev. St. U.S. § 841. We might, if necessary, take judicial notice of the fact appearing in the register of the department of justice, that the attorney general of the United States, under the authority of this statute, has limited the earnings of deputy-marshals to the sum of $3,000 per annum. Reg. Depart. Just. 1876, p. 202. In making his returns of the fees and emoluments of his office, the marshal is required to state, in a report to the attorney general, separately, the fees due himself personally, and those due to each of his deputies, naming him, and what proportion of them his...