177 So. 743 | Ala. | 1937
The assignments of error challenge the rendition of judgment for petitioner in awarding the writ of mandamus.
This suit arose in the circuit court on a petition for writ of mandamus, duly sworn to, reciting that Lacey Edmundson, the petitioner, on the 23d day of April, 1931, was appointed, qualified, and commissioned as deputy tax assessor, and as such he held office continuously until the 17th day of January, 1935; that under said appointment it was his duty to cause to be listed for taxation property which had escaped assessment and the tax had not been paid thereon; that during his incumbency of said office he made two escape assessments against certain personal property owned by the American Cast Iron Pipe Company, which assessments were made final on an appeal to the circuit court for Jefferson county. A judgment was rendered in that cause fixing the taxable value of the property so assessed by the petitioner at the sum of $57,500. It is alleged that the legal fee for the service of the petitioner in making said assessments was an amount equal to 20 per cent. of the total tax paid which amounted to the sum of $11,500. That petitioner had received the sum of $7,500 of the amount of $11,500 due to him as such officer, and there remains a balance due to him in the sum of $4,000.
The petitioner further alleged that it was the official duty of the defendant, as the tax collector of Jefferson county, to pay to the petitioner the sum of $4,000, and that he made due demands on the defendant officer for the payment of said sum, and he declined to make said payment, although at the time of said demands the defendant officer had on hand funds derived from the payment to that defendant of said tax more than a sufficient sum to pay petitioner's said lawful claim. The petition prayed that a peremptory writ of mandamus issue to the defendant requiring him to pay to the petitioner the said sum of $4,000.
The defendant official filed an answer to the petition admitting the allegations therein contained; but set up the fact that the petitioner had agreed to accept the sum of $7,500 for his said service for making said assessment and had been paid said sum of $7,500 and executed a release for all fees and compensation due him as such deputy tax assessor, and that the petition for the writ of mandamus should be denied.
The cause was submitted for final judgment on the petition, answer and exhibit. The court rendered a judgment awarding a peremptory writ of mandamus requiring the defendant to pay to the petitioner the said sum of $4,000. From this judgment the defendant appeals.
It is insisted by the respondent that, by reason of the acceptance of the stipulated sum for services the contract was executed and the liability was extinguished. In support of this contention counsel cite two decisions of this court, viz., Bradley v. Graves,
It is thus noted that the foregoing decisions are not applicable to the instant pleading and facts; no question of an official's lawful compensation was involved.
The rule that prevails and to be here applied is that the acceptance of less compensation than that established by law for an official service does not estop that official from subsequently recovering the just and due legal compensation. Any other rule would be void on the grounds of public policy. Stewart v. Sample,
The deputy tax assessor of Jefferson county is a public officer. General Acts of Alabama 1931, p. 295, Scruggs v. State,
It results from the general decisions and those in this jurisdiction that, when a public official has performed an official service and the amount of his compensation has accrued, a release executed by that official for a sum substantially less than the amount that has accrued to him and was due him under the law is without sufficient or valuable consideration and void. 53 C.J. 1200, and Alabama authorities under note 74; Maness v. Henry,
In Williston on Contracts, § 1730, p. 3025, the pertinent observation is made as to the appointment, payment, and discharge of compensation of an official, that: "As it is the duty of a public official charged with making appointments to make the best appointments possible without reference to private interests, and as it is expedient that those occupying public office shall have such inducements as its emoluments afford for the faithful performance of their duties, a contract to make a certain appointment or to influence the making of an appointment by such an official, or for an official to share the emoluments of his office with another, is invalid. For the same reason, a contract of one who holds a public office or of one who is a candidate for such an office, the emoluments of which are fixed by law, to take less than legal compensation isinvalid. If the agreement is executed by the payment of the diminished emoluments, there are decisions, holding that no further claim can be made. But the opposite view, alsosupported by authority, seems better. Ohio Nat. Bank v. Hopkins,
The first observation is supported by well-considered authorities and illustrated by the following decisions:
"A deputy sheriff, duly appointed and entitled by statute to receive from the sheriff a certain compensation, may recover the full statutory amount notwithstanding an illegal agreement with the sheriff to serve for a less sum. In such case the *100
rule that a party to an illegal contract cannot enforce any right under it is not applicable, because the claim is under the statute and not under the illegal contract." Bodenhofer v. Hogan,
"A contract whereby a justice of the peace agrees to charge smaller fees in suits to be brought before him by a certain corporation than prescribed by statute, and that such fees shall not be collected unless they have been paid over by the defendants to the corporation, is contrary to public policy and void." Hawkeye Ins. Co. v. Brainard,
"In the case of People ex rel. Satterlee v. Board of Police,
A decision of the Supreme Court of the United States in the case of Glavey v. United States,
It will be further noted that it is held that "a city treasurer cannot, by contract with the city, alter the compensation fixed by ordinance for the collection and disbursement of city funds, but is entitled * * * to the compensation prescribed." Purdy v. City of Independence,
Adverting to decisions by this court, Mr. Justice Brickell declared of an agreement to reduce commissions of the chief deputy of the tax assessor, in Robertson v. Robinson,
"The proposition was accepted, and it is this agreement the subsequent writing was intended to embody, and which the parties treated as embodying.
"Of such an agreement, in the strong language of Chief-Justice Wilmot, in Collins v. Blantern, 2 Wils. 341 (1 Smith's Lead.Cas.Pt. 2, 673), it may be said, that it 'is void ab initio, by the common law, by the civil law, moral law, and all laws whatever.' It concerns a place of public trust, in which the public have high interests, involving the performance of public duties, and which can not be made the subject of traffic, and can not become the matter of trade and bargaining."
We come to the consideration of the legal effect of the release executed by petitioner, exhibited in support of the answer and taken as a part thereof. Grimsley v. First Avenue Coal Lumber Co.,
It was the amount of tax due and collected from the delinquent taxpayer; was a certain fixed and definite sum of money due as taxes and fixed by law. The amount of the plaintiff's compensation as an official was an amount equal to 20 per cent. of the tax which was likewise a fixed, definite, and certain sum of money earned. When the petitioner executed a release of a $11,500 debt which had already accrued and theamount of which was not in dispute, for the sum of $7,500, he executed a document that had no legal efficacy. In Brown v. Lowndes County,
This ruling has been followed in Bryan v. Spivey,
"In earlier cases, it appears to have been held that the statute intends that on part payment of the debt evidenced by an agreement in writing, without a surrender of the writing — in this case promissory notes — the agreement by the creditor to accept in discharge of the debt a less sum in money than the debtor owed is a nude pact and constitutes no bar to a recovery of the balance. Hand Lumber Co. v. Hall,
"The case in hand is not affected by section 7670 of the Code, which gives effect to settlements in writing for the composition of debts, meaning claims unliquidated or in dispute. Hand Lumber Co. v. Hall,
The contracts dealt with in the case of Bryan v. Spivey, supra, were notes for the purchase price of land, and the party gave new notes in novation of the old ones.
See, also, Penney v. Burns,
It is inescapable that the release given by the official and pleaded by the respondent is insufficient in law to constitute a defense in this case and to prevent payment of the amount earned as an official and due that official.
It follows that the trial court was not in error in rendering judgment for petitioner and in awarding petitioner the writ of mandamus.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.