Hodnett v. Yalobusha County, 91 So. 454

91 So. 454 | Miss. | 1922

Holden, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Yalobusha county, sustaining a demurrer to the declaration filed by appellant, Hodnett, suing the county for a balance of eight hundred and fifty dollars claimed to be due him on his salary as county superintendent of education during the period from January, 1916, to. January, 1920.

The declaration alleged that the appellant, Hodnett, served as county superintendent of education for the term of four years, and faithfully performed all of the duties of the office; that the school fund, of the county for each of the years of his incumbency as superintendent was in excess of thirty-six thousand dollars, and that by virtue of chapter 183, Laws of 1916, his salary was fixed at five per centum of the school fund, but not to exceed one thousand, ..eight hundred dollars per annum; that from April to August, 1916, he received one hundred dollars per month as salary, and from September, 1916, to August, 1918, he received a salary of one hundred and twenty-five dollars per month, or a total of three thousand, five hundred dollars for the period of twenty-nine months, whereas his lawful salary for the twenty-nine months, as fixed by the statute, was four thousand, three hundred and fifty dollars, a difference of eight hundred and fifty dollars, which is claimed as a balance due him by the county.

The demurrer was sustained upon the grounds: First, that the board of supervisors, by orders on its minutes, made monthly allowances of the salary to the appellant, and such allowances were final adjudications; and, second, that the amount of monthly salary to be paid the county superintendent within the limit fixed by law is committed to the discretion of the board, and the amount allowed each month was in the exercise of a judicial function and final.

The single question for our determination is whether or not the board of supervisors is empowered with a discretion in allowing the salary of the superintendent of education, where the statute definitely prescribes the amount to be paid for-his services.

Chapter 188, Laws of 1916, page 269, fixes the salary of the county superintendent of education at five per cen-tum of the school fund of the county, not to exceed one thousand, eight hundred dollars per annum. The declaration alleged that the school fund of Yalobusha county was in excess of thirty-six thousand dollars for each of the years in controversy; therefore the salary for each of the years was certainly fixed by the law at one thousand, eight hundred dollars. This being true, we do not think the board of supervisors had the discretionary power to change the amount so fixed by the statute, and the orders of the board, allowing a less amount than one hundred and fifty dollars per month as salary for the superintendent, was not an adjudication binding upon the appellant.

The rule is well settled that an officer cannot estop himself from claiming full payment of his salary as fixed by* statute. The reason of the rule seems to be based upon public policy. Therefore the appellant was within his legal rights in demanding the balance of eight hundred and fifty dollars due him as salary for the period mentioned.

The statute mentioned above, which fixes the salary of the superintendent upon a five per cent, basis of the school fund, provides for the suspension of its own operation, but affirmative action would be required to suspend the statute, which does not appear in this case. It also appears from other statutes on the subject that the salary of the superintendent, as fixed by law, may be reduced by. deduction where the superintendent fails to visit schools and perform certain other duties required by law, and it may be that the board could make deductions under certain circumstances; but it had no discretion or power to make deductions in this case, because the declaration alleges “and for said term performed all the duties of the said office,” and this is admitted to be true by the demurrer.

The statute having fixed with certainty the amount, to be paid as salary to the appellant as superintendent, there was no judicial function to be exercised by the board of supervisors in making the monthly allowances, because the -amount to be paid was already determined, and the duty of the board in paying the salary was merely ministerial. There is nothing in the declaration, nor, we assume, upon the minutes of the board, affirmatively showing any facts under the law whifch warranted deductions from the amount fixed by the statute.

The views expressed above are sustained by all of the authorities, a few of which we here cite: Pitt v. Board of Education, 216 N. Y. 304, 110 N. E. 612 ; MacMath v. U. S., 248 U. S. 151, 39 Sup. Ct. 31, 63 L. Ed. 177 ; Glavey v. U. S., 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247 ; U. S. v. Andrews, 240 U. S. 90, 36 Sup. Ct. 349, 60 L. Ed. 541 ; Gallaher v. Lincoln, 63 Neb. 339, 88 N. W. 505 ; Abbott v. Hayes County, 78 Neb. 729, 111 N. W. 780 ; Bodenhofer v. Hogan, 142 Iowa, 321, 120 N. W. 659, 134 Am. St. Rep. 418, 19 Ann. Cas. 1073, and note; Ann. Cas. 1914D, 824, second column note; Town of Wesson v. Collins, 72 Miss. 844, 18 So. 360, 917.

The judgment of the lower court, sustaining the demurrer, is reversed, and the case remanded.

Reversed and remanded.