Ellis v. Batson

58 So. 193 | Ala. | 1912

ANDERSON, J.

Section 211 of the Code of 1907, in declaring the duties of a county treasurer, among other things, says: “It is the duty of the county treasurer— (1) To receive and keep the money of the county and to disburse the same according to law.” This is an imperative and nondelegable duty, and any breach of same is a violation of law. — Section 7485 of the Code of 1907. Construing the complaint, counts 1, 2, and 3, most strongly against the pleader on demurrer, we are of the opinion that the contract upon which the plaintiff’s action is grounded directly contravenes the statute, and is therefore void, not only as violative of the Taw, but as being contrary to public policy. Whether or not the statute would prevent a special deposit of the fund, as distinguished from a general deposit, or special bailment, such as sending funds by express, we need not decide, as it is evident that the arrangement, as set up in the complaint, is more than a mere special deposit for safe-keeping or transmission of the fund; it shows an unauthorized delegation of the duty of the plaintiff to Batson of receiving, keeping, and accounting for the county funds covering a series of years, and is in violation of the statute. While the statute does not authorize the county treasurer to have a deputy, it might be that hé could employ a bookkeeper or clerk to assist him; but he cannot, under the law, delegate to said clerk or bookkeeper the unqualified right and duty of being the general custodian of the public funds, or the right to receive, keep, and account for same. It may be conceded that there was no conversion of the funds, so as to render the plaintiff. guilty of a felony, as defined by section 6838 of the Code, upon the theory that Batson was a bailee, and not a debtor, and that this case might not therefore fall within the rule declared in the cases of Alston v. State, 92 Ala. 124, 9 South. 732, 13 L. R. A. 659, and Clisby v. Mastin, 150 Ala. 132, 43 South. 742, 124 Am. St. Rep. 64; yet the complaint does set out a state of facts plainly forbidden by law, whether it does or does not set up a conversion of the funds by the plaintiff, or the permissive use of same by another, and which point we need not decide.

It has been repeatedly held by the courts that contracts specially prohibited by law, or the enforcement of which violated a law, or the making of which violated the laAV which was enacted for regulation and protection, as distinguished from a law created solely for revenue purposes, is void and nonenforceable.—Sunflower Co. v. Turner Supply Co., 158 Ala. 191, 48 South. 510, 132 Am. St. Rep. 20; Youngblood’s Case, 95 Ala. 523, 12 South. 579, 20 L. R. A. 58, 36 Am. St. Rep. 245; Western Union Co. v. Young, 138 Ala. 243, 36 South. 374. Whenever a party requires tne aid of an illegal transaction to support his case, he cannot recover.—Yarborough v. Avant, 66 Ala. 526; Gunter v. Leckey, 30 Ala. 591; 5 Mayfield’s Digest, 219, § 207. It is sufficient to say that the trial court did not err in sustaining the demurrers to counts 1, 2, and 3.

Whether or not there is a sufficient argument to cause a consideration of the ruling upon the amended counts, or whether or not the appellant is precluded by the statement of counsel that, if the demurrers to the original counts were correctly sustained, they should also be sustained to the amended counts, we need not decide; for it is well settled that the plaintiff cannot, as an individual, recover the funds under the common counts, if received by the defendant in violation of the law, or for a conversion of same.—Bluenthal v. Headland, 132 Ala. 249, 31 South. 87, 90 Am. St. Rep. 904; Marsicano v. Birmingham, 165 Ala. 405, 51 South. 608; Treadwell v. Torbert, 119 Ala. 279, 24 South. 54, 72. Am. St. Rep. 918; Higgins v. McCrea, 116 U. S. 671, 6 Sup. Ct. 557, 29 L. Ed. 764; White v. Barber, 123 U. S. 392, 8 Sup. Ct. 221, 31 L. Ed. 243. Nor can vitality be injected into the illegal transaction by way of estoppel, so as to cause a waiver of the right to such a defense.—Boyett v. Standard Co., 146 Ala. 554, 41 South. 756; Western Union Co. v. Young, 138 Ala. 240, 36 South. 374. Of course, the county could, no doubt, recover the funds belonging to it from Batson; but the plaintiff cannot, as an individual, and for his OAvn benefit, maintain a suit for a breach of the illegal contract, or for moneys received by the defendant under and by virtue of said illegal contract or transaction, or for a conversion of funds received thereunder.

The judgment of the circuit court is affirmed.

Affirmed.

Doavdell, C. J., and Simpson, Sayre, and Somerville, JJ., concur. McClellan and Mayfield, J.J., not sitting.