State ex rel. Mantell v. Baumhauer

• Citation: 12 So.2d 332,31 Ala.App. 27
• Decision Date: 27 October 1942
• Docket Number: 1 Div. 416.
• Parties: STATE ex rel. MANTELL v. BAUMHAUER et al.
• Court: Alabama Court of Appeals

12 So.2d 332

31 Ala.App. 27

STATE ex rel. MANTELL v. BAUMHAUER et al.

1 Div. 416.

Alabama Court of Appeals

October 27, 1942

Rehearing Denied Jan. 19, 1943.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, J Blocker Thornton and D. H. Edington, Judges. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Conforming to answer to certified question, Ala.Sup., 12 So.2d 326.

Certiorari denied by Supreme Court in State ex rel. Mantell v. Baumhauer, 12 So.2d 340.

M. F. Dozier, Winston F. Groom, and Dan T. McCall, all of Mobile, and C. L. Hybart, of Monroeville, for appellant.

Harry Seale, of Mobile, for appellees.

PER CURIAM.

Petition for mandamus to compel payment of the salary of relator, as a fireman of the City of Mobile, allegedly due by an Act of the Legislature, hereinafter mentioned. From a judgment below awarding relator a portion of the amount claimed, both parties appeal.

Relator was continuously employed by the City of Mobile as a fireman from November 1, 1927, up to and including June 1, 1941. The hereafter cited Act of the Legislature fixed the salary of such firemen as relator at $1,440 per annum, payable in 24 equal installments out of the general fund of the City. The relator was never at any time paid this full statutory salary and instituted this proceeding in the court below to recover the difference in that salary and the sum received.

The Act became effective June 22, 1931. In October, 1932, and from time to time thereafter the salary of relator and other firemen was fixed by ordinances of the municipality. During all these years, relator accepted, without protest, this reduced salary.

It is disclosed by the pleadings and evidence that during the national financial crisis-the depression-the City of Mobile was in serious financial straits and was faced with either discharging some firemen or of effecting a further general scale reduction in the pay of those employed, including relator. Faced with such a contingency, the City, rather than discharging any employee, reduced the pay of all. This same situation prevailed in the other departments of the City.

The tendency of the evidence adduced for the City is that the firemen, at a meeting of whom Mantell (the relator) was present, agreed to this reduction in salary-in fact requested this solution of the difficulty in the face of the alternative of the discharge of some employees to preserve the pay scale (not then as high as that stipulated in the Act) of the others remaining.

The relator contends that at this meeting of the employees of the fire department, called for the purpose of deciding the question, no final vote was ever taken, but for purposes here pertinent, this controversy is immaterial. The fact is apparent that the relator was acquainted with the City's-and in fact his and the others'-plight and accepted then and thereafter the pay accorded him by the City.

The respondents plead as defenses waiver, estoppel, the statute of limitations of one, two, three and six years, and non-liability of the City under Section 226 of the State Constitution. They also contended that under no version of the case could the salary fixing statute have application after the effectiveness of the Civil Service Act of Mobile County, found in Local Acts, 1939, page 298.

The contention of relator-presented in illuminating briefs and argument by able and astute counsel-is that none of these defenses are available. Much of the argument turns upon the primary issue as to whether or not a fireman is such officer as that he cannot waive-or, under the facts, be estopped from recovering-the statutory salary stipulated in the Act of the Legislature.

The judges of this court were variant in their views on the several controlling questions and could not reach an unanimous conclusion. In view of the novelty and importance of the litigation and the points involved therein, we deemed it proper and necessary to certify these questions to the Supreme Court for decision. Code 1940, Title 13, Section 88.

The following inquiry was, accordingly, addressed to the Supreme Court:

"To the Supreme Court of Alabama: * * *

II

"Right of recovery in the * * * case hereinabove is claimed under Act No. 441, General Acts, Regular Session 1931, pages 538 and 539, wherein the salary of firemen is fixed at $1440.00 per annum. The City of Mobile (the city affected by the Act) at no time paid its firemen the salary therein stipulated, but from time to time, since the effective date of such Act, adopted ordinances prescribing their scale of pay. Petitioner is one such fireman and sues for recovery of the difference in the compensation received and that stipulated in the Act above.

"The judges of this court are unable to reach an unanimous conclusion in the case, and the abstract question of relator's right vel non of recovery is certified to your court for answer (Code 1940, Title 13, Section 88).

"Under this primary query, answer to the following questions will control the issue:

"(a) Is a fireman of the City of Mobile such public officer or employee within the contemplation of the rule that renders void his contract or agreement whereby he agrees to perform services required of him for less compensation than that fixed in the statute?

"(b) May a fireman of said City waive the payment of salary stipulated and accept a lesser amount so as to preclude a later recovery of the statutory compensation?

"(c) Does the acceptance by a fireman of said City, over a long period of time, of less compensation than that fixed by statute estop him from later claiming the amount stipulated in the Act?

"(d) Does the rule which avoids the agreement of a public officer to accept less than the compensation attached by law to his office apply to a fireman of the City of Mobile, whose tenure of employment is subject to the will of the governing body of that City?

"(e) May a fireman of said City be estopped from claiming a larger amount of salary after having accepted a lesser amount under an express agreement, upon which agreement the City relied to its detriment?

"(f) Is relator required to file the statutory claims as a condition of recovery (Section 476, Title 37, Code 1940)?

"(g) What is the proper limitation of action in cases of this kind?

"(h) Where the City has been unable to pay the salaries required by statute, and the deficit is carried over beyond the year in which the payment was supposed to have been made, is the claim for the deficit void under Section 226 of the Alabama Constitution, where the City is over its Constitutional debt limitation?

"(i) Does the local Civil Service Law applicable to Mobile County (Local Acts 1939, page 298) supersede the Acts of 1931 with respect to the fixing of the salaries of firemen?

"This certification is under the authority of Code 1940, Title 13, Sections 87 and 88.

"For your convenience the transcripts and briefs are herewith submitted."

Responding to the foregoing certification, the Supreme Court has tendered the hereafter quoted opinion in reply:

"Your * * * inquiry is divided into sub-sections, and each will be treated as there set forth. It relates to Act No. 441 General Acts (Regular Session) 1931, page 538 (see, Code of 1940, Title 62, section 460), which became a law under section 125, Constitution, on July 22, 1931, and provides that the city controlled by it 'shall appoint the necessary number of firemen who have had as much as one year's experience as firemen at a salary of $1440.00 per annum. * * * (They) shall hold office at the will of such city governing body,' and shall be paid out of the general fund of the city.

"An answer to the several features of your * * * inquiry involves a discussion of principles of law which we will undertake before answering each separately.

"When there is no question but that the position held by one was a public office and no contention that it was merely a public employment, we have held that having performed the official service, he is entitled to the compensation provided by law though he had agreed to take less, and though he accepted less in full satisfaction of his claim. Downs v. City of Birmingham, 240 Ala. 177, 198 So. 231(28); Jeffers v. Wharton, 240 Ala. 21, 197 So. 358; Hamilton v. Edmundson, 235 Ala. 97, 177 So. 743. See, Robertson v. Robinson, 65 Ala. 610, 39 Am.Rep. 17; Crutcher v. Johnson County, Tex.Civ.App., 79 S.W.2d 932; Altenberg v. City of Superior, 228 Wis. 372, 280 N.W. 342, 118 A.L.R. 1458.

"The fact that the tenure of office is not fixed by law, but is subject to the will of the judge who appoints him does not seem to be controlling in respect to this question, as demonstrated in Jeffers v. Wharton, supra. The officer there in question was the clerk of an inferior court of Ensley, appointed by the judge and holding office at his will.

"The reason for the rule in Robertson v. Robinson, supra, is said to be that it 'concerns a place of public trust, in which the public have high interests, involving the performance of public works.' And in Montgomery v. State, 107 Ala. 372, 381, 18 So. 157, 159, it is said that an "'office" implies a delegation of a portion of the sovereign power, and the possession of it by the person filling the office * * *. [Such power is] a portion belonging sometimes to one of the three great departments, and sometimes to another. Still, it is a legal power, which may be rightfully exercised, and, in its effects, will bind the rights of others, and be subject to revision and correction only according to the standing laws of the state. An employment, merely, has none of these distinguishing features.' See, Lacy v. State, 13 Ala.App. 212, 226, 227, 68 So. 706.

"And in Harrington v. State, 200...