Hendricks v. Board of Supervisors, 49 Miss. 612

Hendricks v. Board of Supervisors

49 Miss. 612 | Miss. | 1873

Simp.all, J.,

delivered the opinion of the court:

The plaintiff in error sued the board of supervisors of Lowndes county, to recover compensation, for issuing notices by her intestate, as clerk, of the appointments of road overseers, for the years 1870 and 1871, amounting to $300.00, as appears from the account filed with the declaration.

The cause has been removed into this court, to review the judgment of the circuit court, which was adverse to the claim.

It is made the duty of the chancery clerk, who is also clerk of the board of supervisors, to deliver, within ten days, to the sheriff, copies of the appointment of all road overseers made by the board, in order that the sheriff may notify the respective parties. § 2346, ch. 53, Code of 1871, same as art. 13, Code of 1857, p. 173. In the Code of 1857, p. 144, is this provision in reference to the clerk of the probate and police court: “ For like service by them performed, the same fees gs are allowed by law to the clerks of the circuit court.”

By the 14th art., p. 416, Code of 1857, the clerk oí the board of police is allowed $3.00 per day for his attendance on the board, when in session, and for all services required by the act, compensation not to exceed $50.00 per annum. The new Code makes similar allowances, thus, § 1361, $3.00 per day for attendance, and $50.00 for all other services required by chap. 4th. Books, desks and other necessary articles to be paid for out of the comity treasury. The sheriff is allowed $2.00 per day for attendance, and $50.00 for all other services.

No clerk or sheriff shall claim and receive from the board of supervisors any fee or compensation not authorized by law. § 1379, Code of 1871.

It is manifest from these references, to the statutes, that the intendment is distinct to annex to each service rendered by the clerk and sheriff, a special compensation and fee, and *615for such as are not specified, a gross sum. The books, desks and stationery are furnished the clerk; he is paid for each day’s attendance upon the board and keeping a record of its proceedings, and then a sum in gross, not to exceed $50.00 per annum, may be paid to him for those services for which a specific amount, or fee, is not allowed. And then the legislature, with emphasis declares that the clerk and sheriff shall not claim or receive from the board of supervisors, any fee or compensation not authorized by law. § 1379. We understand the meaning to be, that the law has determined the fees and compensation to be paid these officers, for official acts and services, duties imposed upon them by statute; and if anything is enjoined npon them by law, if the remuneration is not made by a specific fee, then it must be esteemed as covered by the gross sum that may be annually paid out of the county treasury.

But apart from the statute, the rule is, that an officer can only demand such fees, for the performance of official duties, as the law has fixed. Town of Carlyle v. Sharp, 51 Ill. Rep., 72. There the mayor claimed $2.00 per day, for each trial where the town was interested. The general statute gave him the same fees, as allowed a justice of the peace. There being no law permitting a justice to make such charge, the plaintiff failed.

It is a doctrine of the common law, .founded in public policy, that an officer shall be confined to the compensation, or fee, prescribed; and, therefore, a promise to pay money for doing that which the law did not suffer him to take anything for, or to pay more than was allowed by law, was void, however freely and voluntarily made. 1 How., P. C., ch. 68, § 4; Lane v. Sewall, 1 Chitt., 175; Morris v. Burditt, 1 Camp., 218.

The statute does not give a fee for issuing these notices of the appointment of road overseers. The clerk accepts the office with knowledge of its duties, and the rates of compensation, and it must be assumed that he assented to perform all the services enjoined by law, for such fee, and compensation, *616as are named in the statutes. If a party interested in a particular official act, promises compensation, where the law allows none, such promise, the authorities condemn as void. If that be so, a fortiori, a promise to .pay for such service will not be raised by implication. That is the plain tiff’s case. The early case of Bridge v. Cage, Cro. Jac., 103, was assumpsit by the sheriff to recover money promised to him in consideration that he would execute the writ of elegit, for which service no fee was provided by law. The court held that the. action could not be maintained to recover a compensation not given by law.

We think the circuit court correctly expounded the law to' the jury, and affirm the judgment. •