61 So. 963 | Ala. | 1913
Lead Opinion
We do not, of course, ascribe bad faith to any of the officers of the county of Mobile in this discussion of the legal questions which are presented by this record. On the contrary, we are satisfied that the transaction was had without bad faith on the part of any of said officers. We think it probable that the transactions set up by the pleadings grew up out of a custom which has prevailed in Mobile and possibly other counties of the state, and that the officials have been misled by such custom rather than from any intentional violation of the law. The whole theory of this case is based upon the assumption that there was no mala fides on the part of any one. Everything which was done by said officials was openly done and are matters of public record.
A person claiming fees or costs must point to the definite law authorizing it; the law will not be extended beyond its letter; the law may impose duties upon public officers without providing compensation therefor.—Pollard v. Brewer, 59 Ala. 130; Torbert v. Hale County, 131 Ala. 143, 30 South. 453.
“An officer demanding fees for services rendered must point to some clear and definite provision of the statute which authorizes the demand, and the compensation cannot be allowed unless it is conferred by a strict construction of the language employed in the statute. * * * Troup v. Morgan County, 109 Ala. 162 [19 South. 503].” Torbert v. Hale County, 131 Ala. 143, 30 South. 453.
“Those who accept public offices which require them to render services to the state must take the office cum onere,” and must render their services gratuitously, “unless, by express statutory provision, compensation is fixed and an express liability for its payment imposed.”—Pollard v. Brewer, supra.
In. cases of public officers, their fees and compensation are fixed by law, and, if a court of county commissioners make an order allowing a public officer a fee when he is not entitled to it, the records, out of necessity, must show it. In such a case the record of the court shows that the order is void, that the warrant drawn pursuant thereto is void, and such an order and such a warrant can furnish protection to no one.
When, therefore, there are, either upon the face of the claim or upon the face of the records of the court of county commissioners or otherwise, evidences brought home to the county treasurer that a claim, although allowed by the court of county commissioners, is in fad invalid, then it is the duty of such treasurer to refuse to pay such claim and to present, on behalf of the county, the defense of such county to such claim. If he pays such a claim he does so at his peril.
Section 1500 of the Code of 1907 provides, among other things, that “every official bond is obligatory on the principal and sureties thereon * * * for the nse and benefit of every person who is injured, as well by any wrongful act committed” by the officer “under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” This section of our Code is broad, and to use the language of this court in McElhaney v. Gilleland, 30 Ala. 183, the object intended is to “extend the remedy beyond those cases in which a wrong is done in the discharge of the legitimate duties of the office, to those in which a wrong is done under color of office.” Color of office is defined by Bouvier, in his Law Dictionary, to be where a wrong is committed by an officer “under the pretended authority of his office.” The phrase “color of office” occurs in the criminal law and is defined by text-books, treating of prosecutions of officers for extortion. “Extortion, in its, strict legal acceptation, signifies the taking of money by an officer, by color of his office, either where none at all is due, or not so much is due, or where it is not yet due.”—2 Chitty’s Crim. Law, 293, note W; 4 Black’s Coin. 142.
We take it, therefore, that when a public officer corruptly claims a fee to be due him for services rendered by him as such officer, and corruptly receives such fee when no such fee is due him or allowable to him for such services, he is guilty of extortion. The corrupt motive in receiving the fee renders the act criminal, but all the law on the subject of extortion, as we read it in the books, rests upon the proposition that when a public officer demands and receives a fee for services rendered by him as such public officer, whether the fee claimed be legal or illegal, he is to be held to have done so under color of his office. In other words, whenever a public officer claims that a fee is due him for services which he claims that he rendered as a public officer, the claim is made under color of his office, and, if he receives that fee, he receives it under color of his office; and under the statute of this state which we have above quoted there is, in legal effect, in every official bond, a stipulation on the part of the official and the sureties on his bond providing protection to every person who is injured by any wrongful act of such officer “committed under color of his office.” If a sheriff, while sheriff, does an act as sheriff which is required by law and claims and collects a certain illegal fee for that service, with corrupt intent, he is liable for extortion because he made the claim and collected the fee under color of his office. If he made the claim and collected the illegal fee in good faith, acting under a mistake as to his
In the case of State v. Flynn, 161 Ind. 554, 69 N. E. 159, above quoted, we find a dicta which might appear to be opposed to the views above expressed, but in that case the court said: “If the allowances in question were unlawfully made by the court to him, either in his private capacity or under mere color of office, then no right to recover by the county would arise on his official bond.” This quoted statement of the Supreme Court of Indiana was, as applied to the facts of the case, then under consideration, entirely gratuitous, and
Wrongful means “an invasion of right, to the damage of the party who suffered it. It consists in the injury done, and not commonly in the purpose or mental or physical capacity of the person or agent doing it. It may or may not have been done with bad motives. The question of motive is usually a question of aggravation only ”—8 Words & Phrases, p. 7547; Spivey v. McGehee, 21 Ala. 417. Public office is a public trust, and whenever a public officer, under color of his office, does an act without legal right, and the act results in injury to another, that act is wrongful.
For telephone ....................................................................................$ 135 00
Signing and sealing county bonds.............................. 343 00
City directories .............................................................................. 15 00
Lunacy cases .................................................................................... 2,859 75
Indexing minutes of board of revenue..................... 573 99
The court of county commissioners, acting under subdivision 3 of section 3313 of the Code, which provides that the court of county commissioners shall have authority to “examine, settle, and allow all accounts and claims chargeable against the county,” allowed the claim and the same was paid. This suit was brought by the county of Mobile against Price Williams, Jr., and the sureties upon his official bond, as probate judge of the county, for the recovery of the money paid to him, as above stated, upon the ground that the claim was illegal and its payment without warrant of law.
The payment of county funds to an officer for services rendered by him as such officer under the requirements of the law, and for which services the law allows him no compensation, is not only without consideration but
Public office, is, as we have already said, a public trust. A public office is created, not for the.benefit of the incumbent of the office, but for the benefit of the people whom the incumbent of the office serves. A public officer, as we have already said, accepts his office with all of the burdens which the law imposes upon the incumbent of that office. He knows, when he accepts the office, what its perquisites are, and he must, with
In addition to the above, the states of Alabama and Indiana, along with many of the other-states, are committed to the doctrine that a court of county commissioners, in auditing and allowing claims against the county, act in an administrative capacity. See Commissioners v. Heaston, note 55 Am. St. Rep. on pages 203 to 209. The states of Mississippi, New York, California, and Nevada, along with some of the other states, are committed to the view that they act in such matters as judicial officers. Some of the other states hold that they act in a legislative capacity.—Commissioners v. Heaston, 56 Am. St. Rep., note, supra. To the divergence of opinion among the courts of last resort of the various states as to how a court of county commissioners, in auditing claims, is to be held to act, whether in an administrative, judicial, or legislative capacity, is to be attributed many of the conflicts which exist among-such courts upon some of the questions above discussed.
Be ver sed and remanded.
Rehearing
Sections 1500 and 5415 of the Code of 1907 have appeared in our various Codes since their first appearance together in the Code of 1852. Section 5452 of the Code expressly renders the judge of probate liable on his official bond for certain named omissions of official duty, as well as for all omissions of official duty. This section seems to deal only with the liability of a judge of probate on his bond for a failure of such judge to perform his official duty. It deals with acts of omission only, and says who may sue therefor.
Section 1500 of the Code deals with the legal effect of every official bond, and declares that “every such' bond shall be obligatory upon the principal and sureties for the use and benefit of every person who is injured, as well by any wrongful act committed under color of office as by his failure to perform or the improper or neglectful performance of those duties imposed by law.” This section covers all official bonds, and has therefore been uniformly construed by this court as covering the bonds of judges of probate as well as those of all other officers.—Savage v. Mathews, 98 Ala. 535, 13 South. 328; Tallman v. Drake, 116 Ala. 262, 22 South. 485.
In the above-named case of Savage v. Mathews, this court declared that “the wrongful issuance of a county warrant by the judge of probate is done under color of his office, within the meaning of subdivision 3 of section 273 of the-Code” of 1886 (now section 1500 of the Code of 1907), “upon which an action would lie upon his official bond at the suit of the county, if thereby the funds of the county were unlawfully diverted or lost.” While this construction of the statute may not
The application for a rehearing is overruled.
Dissenting Opinion
(dissenting). — To say that the commissioners’ court, the sole and only quasi sovereign power of the county, and the sole representative of the county entity, in the absence of fraud or bad faith, cannot compromise and settle claims or demands due to or from the county under our laws, constitutional and statutory, is in my judgment erroneous.
If the record in this case showed that the transaction between the defendant, Williams, and the board of commissioners was a fraud upon the county, I could and would readily agree that the decision is correct. No person or officer will or should be allowed by the courts to profit by his own wrong. If the decision was placed upon the ground that the Legislature had no power to authorize a man to be a judge in his own case, and it appeared that the defendant had so acted, I could readily agree; but no such case is presented by this record, and the opinion itself precludes any such idea. The opening sentence of the opinion is as follows: “We do not, of course, ascribe bad faith to any of the officers of the county of Mobile in this discussion of the legal questions which are presented by this record. On the contrary, we are satisfied that the transaction was had
The minutes of the commissioners’ court as to the first action on these claims are not shown by this record further than that they were presented and allowed; but, as to the subsequent actions of the commissioners, the following, among others, is shown: “Upon full consideration of the matter this board is of the opinion that the aforesaid claim of the county against the said probate judge is doubtful, and that the terms, of com
Plea 4 sets up the exact state of facts necessary to bring the transaction within the influence of subdivision 11 of section 3313, which reads as follows: “To compromise on such terms as they may deem just, all doubtful claims in favor of the counties, when such claims arise on account of moneys heretofore paid in good faith, by order of such courts” — and then alleges that the claim here sued upon was so compromised and adjusted.
The opinion says the statute did not cover the case made by the record. If not, why not? The plea, the statute, and the Constitution use the same language, and for this reason I cannot understand why the defense made by the plea is not within the protection of the statute. The facts stated in the plea may not be true, but that question cannot be tested by a demurrer, and that is the only mode in which there has been any attempt, so far, to test the truth thereof. If the facts stated in this plea are true, I submit that it is a perfect defense to this complaint. The object and effect of the allowance of the claims by the commissioners’ court is correctly stated by this court in Moore’s Case, 53 Ala. 25, which is relied upon in the decision of this case. It is, however, decided in that case that the allowance primarily fixes a liability upon the county, and that the
Plea 4, however, does not rely on the allowance as a defense. It concedes that the allowance was not final or conclusive, but says that instead of the county suing on it, he undertook to compromise the matter with the county, as the statute authorizes, and that the claim was thus fairly compounded and settled, and that he performed his part of the settlement by paying what, and in the manner, the county agreed to accept, and that he was thereby released; and he sets up the county’s own record as showing the facts. In the absence of fraud or bad faith, why this is not binding is more than I can understand. Will the county be allowed to accept the plaintiff’s money or rights and extinguish his claim against it, and still sue and recover as if there had never been a settlement? The effect of this settlement does not at all depend upon whether the claims originally allowed were proper or improper. If they were proper, then there was no need of any settlement, and, so far as Williams was concerned, there was no error to correct, nor wrong to arbitrate or right, and the county thus received the defendant’s money and canceled his void claim for which the latter received no consideration whatever. It was only in the event that there was error, mistake, or fraud in the allowance in favor of Williams and against the county that there could be any use or sense in a settlement of the differences between them.
This record fails to show,, except in the most general way, what was the nature of the original claims. All that is attempted to be shown is the account made out by one of the examiners of public accounts against the defendant, Williams. It is in words and figures as follows:
Typewriters .........................................................$ 929 26 $ 227 49
Telephones ............................................................ 135 00 18 50
Signing and sealing county bonds... 343 00 123 75
City directories ............................................. 15 00 4 25
Lunacy cases ...................................................... 2,859 75 825 00
Clerical services tax commissioner’s raises ......................................................... 4,680 50 789 50
Indexing minutes of board of revenue ........................................................................... 573 99 158 01
Total ........................................................$9,536 50 $2,146 50
Total principal and interest...........................$11,683 00
The largest of these items, to wit, $4,680.50, and the .third to the largest, $929.26, were subsequently held by the Attorney General to be improper charges against •the defendant, or,' in other words, that they were originally properly allowed him by the commissioners’ court. Whether all these amounts were allowed at one time or at different times, and whether all were embraced in one claim or were made up of sundry items for different services, this record does not attempt to inform us. I do not see how this court on this record can say that all of these claims, or all of the claims that were due, were not and could not be made proper charges against the county. As to whether or not this claim or any part of it was doubtful, if that question could be considered on this appeal, surely there was some doubt as to some of the items, especially those large amounts for interest for years before any demand was made. The complaint conclusively shows that the county in this suit does not now claim interest until after demand ; yet of this claim which was compromised a large amount was for interest.
The original allowance of an improper claim against the county and the settlement of one due it are separate and distinct functions, though they pertain to the same matter, and the power to make, and the effect of, when made, are entirely different. Whether the county will collect what is due it, by suit or by compromise or by arbitration, is a matter which the law places within the sound discretion of the commissioners.
I submit that there is no power in this state to make a county sue for the full amount which an examiner may think is due the county, or that should prevent the commissioners from compromising or arbitrarily settling any claim without suit, if they act in perfect good faith. Of course they cannot legally use their power and authority for the purpose of defrauding the county, nor for conferring favors upon themselves or their friends. They must in good faith act for the good of the county; and, if they do this and merely err in judgment or discretion, this does not destroy or invalidate settlements or arbitrations made by them in good faith.
The county is bringing this suit for the county just as much so as it was the proceedings in the lower court,
Litigation is expensive to him Avho wins, and experience in law, if not the science of it, teaches that any litigant is liable to lose, no matter how just or righteous his claim. The law, both divine and human, constitutional, statutory, and common, encourages arbitration, compromise, and settlement of differences without going to laAV. This rule of morals and of law is applicable to counties and to other corporations or persons; and if it is to be followed, as to counties, the law has imposed the duty and conferred the authority and power solely upon the commissioners to follow the precept and enforce the rule. The record in this case shows that this has been done by these commissioners, and I fhinfr their action ought to stand until it is set aside for fraud
It is matter of common knowledge that the Legislature has often released persons and corporations from their valid obligations to the state, whether due in money, or in other property, or in services; and because this power was frequently abused by the officers or functions of government in which the power was reposed, and to curb, restrain, and, in some instances, to prohibit, its exercise, the Constitution contains a limitation upon this particular power of the Legislature-Section 100 of the Constitution provides as follows: “No obligation or liability of any person, association or •corporation held or. owned by this state, or by any, county or other municipality thereof, shall ever be remitted, released or postponed, or in any way diminished, by the Legislature, nor shall such liability or obligation be extinguished except by payment thereof; nor shall such liability, or obligation be exchanged or transferred except upon payment of its face value: Provided, that this section shall not prevent the Legislature from providing by general law for the compromise of doubtful claims.” This section of the Constitution clearly called for subdivision 11 of section 33IB, and probably other similar sections of the Code, in order to do exactly what the Constitution says may be done, to provide a general law “for the compromise of doubtful claims.” This statute certainly did not violate the Constitution, because the Constitution expressly provides for just such a law. The statute was clearly intended to comply, and I think unquestionably complies with this provision of the Constitution. There
There is no attempt to allege fraud in this case on the part of the plaintiff - or of the defendant, and, as before stated, the opinion concedes there is none. I know my Brothers do not think so and have not intended to so decide, but in my'judgment they have virtually repealed the statute. I know they have attempted to save the statute by saying it does not apply to certain officers or to certain claims, but may apply to others, but this, I submit, is not a warranted interpretation to put upon this statute or the constitutional provision which called it forth. Why should one officer’s claim be compromised any more than that of another, or why should any officer’s claim not be compromised as well as the claims of other citienzs? I can find no intimation in the law that any such discrimination was attempted. Of course the probate judge could not act as a member of the board in allowing or compromising his claim; hut it does not follow that the other members
I think my Brothers have erred in concluding that the claim compromised in this case was not a doubtful one within the meaning of the Constitution and the statute. It affirmatively appears that the Attorney General of the state held that a part of it was not at valid claim against the defendant or in favor of the county; and certainly the large amount of interest with which he was charged by the examiner was not a proper charge, and that is abandoned in this suit; but it was embraced in the claim which was compromised, so there was certainly a doubt as to the validity of a part of the claim, a doubt even as to the liability of the defendant; but I submit that is not the only element of doubt which a claim may possess. There is another element of doubt, and that is as to the ability and costs of realizing anything by suit or summary proceeding or other legal process. It may be that the debtor or his sureties, one or both, are insolvent or have disposed of their property in such manner that the cost of ultimately realizing anything on the claim may exceed the claim. It is certainly a question of some doubt as to whether this claim was a valid one in toto against the sureties on the official bond of Williams. While it may be said that this is a question of law, and not of fact, yet the law is'not such a* science as that there is and can be no doubt about it. One has but to try to learn, practice, write, or obey it to find out that there is frequently as much doubt about it as there is in many questions of fact. While it is often said that every one is presumed to know the law, and that ignorance thereof excuses no one, this rule or maxim is frequently misconstrued and misapplied, as I think my Brothers have unconsciously done in this case.
It was said by Beasley, O. J., in State v. Cutter, 36 N. J. Law, 125, 127: “This rule in its application to
The Supreme Court of Michigan has thus explained the maxim and rule under decision: No man can avoid a liability, as a general thing, because he is ignorant of the law. This is an essential rule of society. But the law is not so senseless as to make absurd presumption of fact. In Regina v. Tewkesbury, L. R., 3 Q. B. 628, this supposed maxim was clearly explained, and it ivas held that where an actual knowledge was in question the legal presumption could not supply it. Blackburn, J., uses this language: “From the knowledge of the fact that I! lizard was. mayor and returning officer, was every elector bound to know, as matter of law, that he was disqualified? I agree that ignorance of the law does not excuse. But I think that in Martindale v. Falkner, 2 C. B. 719, Maulé, J., correctly explains the rule of the law. He says: ‘There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason, if it Avere so.’ In Jones v. Randall, Cowp. 38-40, Dunning, arguendo, says: ‘The laws of this country are clear, evident, and certain ; all the judges know the laAArs, and, knowing them, administer justice Avith uprightness and integrity.’ But Lord Mansfield, in delivering the judgment of the court,
Let us apply this rule to this case: The Attorney General and the Examiner of Public Accounts, two officers, differed as to the amount of this claim, and the county commissioners and the examiners differed from both the other officers as to the validity vel non of the claim. The attorney for the county and the commissioners differed, and the attorney for the county differed from the Attorney General, and the Examiner of Public Accounts as to the interest, and the trial court and this court evidently differ as to the validity and the amount of the claim, and the judges of this court differ as to the matter, though only one from the other six. Is all this not sufficient to justify the commissioners in claiming and treating this claim as a doubtful one, and in exercising the power conferred and discharging the duty imposed, by the statute, in settling this claim? It does seem to me that there could be no doubt that there was involved in this matter such a “doubt” as Avas referred to in the Constitution and in the statute above alluded to.
I think that the case should be reversed as to plea 5, but, as to plea 4 I am “beyond doubt” in my mind, there was no error.
