81 Ala. 272 | Ala. | 1886
— By “An act for the protection of the traveling public against accidents caused by color blindness and defective vision,” approved February 28, 1887, all persons affected with color blindness and loss of visual power, one or both, to the. extent defined in the requirements of the act,
The appellee, being a train conductor in the employ of the Louisville and Nashville railroad company, applied to appellant, one of the examiners appointed by the Governor, for examination, and if found qualified, for the necessary certificate. While appellant offered to make the examination, he stated that he would not issue a certificate to appellee, though qualified, unless he would pay the fee for the examination; assigning as the reason, that he had previously examined several employees, and the company had refused to pay the fees, declaring that they intended to contest the liability and the constitutionality of the statute. The appellee declined to pay the fee, and instituted this proceeding for a mandamus, to compel the examiner to examine him, and, if found fit for his position, to give him the requisite certificate.
A public officer is, beyond controversy, entitled to compensation for his services; and the general rule is, that if a statute prescribes the fees which the officer shall receive, and omits to specially provide when, how, or by whom they shall be paid, the person at whose request the service is rendered is liable, and the officer is entitled to payment as the services are performed. — People v. Harlow, 29 Ind. 43; Ripley v. Gifford, 1 Iowa, 367. If there was no provision of the statute relating to the payment of the fee allowed the ex-
The statute requires examinations of all persons, and the possession of the necessary certificates, before serving in any of the capacities specified, whether or not they were in the employment of a railroad company on June 1,1887; and it is insisted, that it could not have been intended, that the examination of those not employed, and who may never be employed, should be at the expense of the railroad companies. It will be conceded that the terms, though comprehensive, are indefinite and uncertain in this respect; and it may be, that in order to avoid such resultant hardship and injustice, the proviso to the third section, extending to employees the time for obtaining the certificates, should be construed as designed to limit and qualify the general provision ; so that applicants for examination, not employees, would be personally liable for the fee of the examiner, there being in such case, no provision that it shall be otherwise paid. But such is not this case. The petition states, and the facts are admitted by the answer, that the petitioner had been in the employment of the Louisville & Nashville Railroad Company as conductor, for six years past, and that he informed the examiner that he was and is so employed, and made the application as such employee. These averments define the status of petitioner, and show that he falls within the class of persons entitled to the extended time in which to procure the certificates. And counsel for both parties concur in the construction, that as to employees, the examinations
The offer to examine, accompanied with the avowal by the examiner that he would not grant a certificate of fitness, though found qualified, without payment of the fee, was substantially and practically a refusal to perform the duty which he owed the petitioner, under the 'statute, by affixing to its performance an unauthorized condition. Possession of the certificate is the statutory authority to serve in the specified capacities — the shield which protects. The examination is the means to a substantial end; and if the applicant is found qualified, would be meaningless and fruitless without the certificate. The law regards the substance. The appellant was not authorized to make the payment of the fee a condition of the delivery of the certificate, and hence has declined to examine the petitioner in the sense the statute contemplates and provides. The petitioner has a clear legal right to be examined, and if found qualified, to a certificate of fitness for his position; the corresponding duty is devolved on the examiner to make the examination, and grant the certificate, if found competent; and mandamus is the only adequate legal remedy to compel its performance. The petitioner is entitled to a mandatory order, requiring the examination without reference to the payment of the fee. — Mobile Mutual Ins. Co. v. Cleveland, 76 Ala. 321.
Neither party is in a position to assail the constitutionality of the statute, both claiming and asserting rights under it as a valid enactment. We have, therefore, not considered the constitutionality of any of its provisions, and do not wish to be understood as intimating any opinion. We have assumed its validity as between the parties to this proceeding, solely for the purposes of this decision.
Affirmed.