198 So. 245 | Ala. | 1940
Lead Opinion
Upon consideration of this cause in consultation, the Court concludes that the judgment of the court below is due to be affirmed, both upon application of our non-claim statute, Code 1923, § 228, and upon the principle of law applicable to voluntary payments. The Court deems unnecessary a discussion of these questions further than to state disagreement with the theories set forth in the dissenting opinion, which take this case from without the influence of said non-claim statute and the principle applicable to voluntary payment of money.
The judgment is accordingly here affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS, BOULDIN, BROWN, and KNIGHT, JJ., concur.
GARDNER and FOSTER, JJ., dissent.
Dissenting Opinion
This cause was originally assigned to the writer, and the following opinion prepared. But upon consideration of the cause in consultation, the opinion did not meet with the approval of the majority of the Court. However, the writer considers the question of importance, and therefore adopts the opinion originally prepared as expressive of his views in dissent, in which Mr. Justice FOSTER joins.
As we understand the argument of counsel for the respective parties to this litigation, there are two main points stressed upon which the ruling of the learned trial judge is sought to be sustained. The first relates to the statute of non-claim, and the second rests upon the principle of voluntary payment.
The court below placed its ruling upon the statute of non-claim, and we give first consideration to that question. It is clear enough that plaintiff paid these fees — here sought to be recovered — upon the presumed validity of sections 370-A and 370-B of the General Revenue Act of 1935 (General Acts 1935, pages 564, 565), subsequently invalidated as in violation of our Constitution. Houston County Board of Revenue v. Poyner,
But defendant insists plaintiff's claim was not presented for audit and allowance (section 224, Code of 1923) within twelve months after it accrued or became payable, as required under section 228, Code of 1923. *5
The pivotal question, therefore, is, when did plaintiff's claim accrue or become payable within the meaning of our statute of non-claim? Defendant insists that the claim accrued and was payable on the date the money was paid over to the custodian of the county funds, and that so considering that as the date of accrual, the statute of non-claim had created a bar.
Much reliance is had upon Montgomery County v. City of Montgomery,
Here, plaintiff, as a public officer, paid these fees over to the county in obedience to a law presumably valid in all respects.
In Irwin v. Jefferson County,
And in Cooper v. Hawkins,
But defendant insists these authorities are inapplicable as they have reference to public officials, and that the fees paid over by plaintiff were so disbursed by him as the owner thereof, and constituted a personal rather than an official act.
We need not stop to inquire as to the materiality of the distinction thus made in argument for the reason that, in our opinion, the premise upon which the argument rests is unsound. Plaintiff received these fees as a public official, and under the law as it was written he was under duty, as such official, to pay them over to the county. As such official he was accountable to the county, and chargeable therewith as a trustee in invitum, with a penalty attached for a failure to account. Houston County v. Martin,
So considered, therefore, plaintiff had the legal right, in making these disbursements, to assume the validity of the law under which the disbursement was made, without any duty on his part to search further and determine for himself its constitutionality. Perhaps he entertained the conviction there was no constitutional inhibition against the limitation upon his earnings as probate judge. See, dissenting opinion in Houston County v. Martin, supra. But, however that may be, he had the right to assume that the law, as passed by the legislature, was valid and binding, and to make the disbursement upon the strength of such assumption.
It subsequently developed, however, that the law was invalid, and those judges of probate who retained the fees and declined to obey the law as written could do so with impunity. The fees they thus retained were theirs, and the counties, having no interest therein, could of course raise no objection to their retention.
Plaintiff, however, saw fit to give obedience to the written law, presumably valid, and the answer to his suit for a recovery of these fees, which belong to him, is the statute of non-claim.
That plaintiff did file his claim within the twelve months' period following a binding and authoritative pronouncement by the Court that the act was invalid, is not questioned.
The question, therefore, for consideration, is, when under the statute of non-claim did plaintiffs claim become payable? Was the time to be computed from the date of disbursement, as in Montgomery County v. City of Montgomery, supra, or should it date from the authoritative pronouncement of the invalidity of the law under which the disbursement was made? We are persuaded that logic and common sense lead to an acceptance of the latter date. Certainly this is in accord with our sense of justice and fair play. *6
The statute of non-claim does not serve to destroy or extinguish the debt. It relates to the matter of remedy only, as we had occasion recently to observe. Covington County v. O'Neal, Ala.Sup.,
We do not understand any of the discussions found in the opinion of Norwood v. Goldsmith,
These observations are made merely for the purpose of demonstrating the impracticability of a presentment by plaintiff of any claim for such fees prior to any authoritative pronouncement of invalidity of the law under which they were paid.
The statute of non-claim should, like all other statutes where ambiguity arises, be construed in the light of reason and common sense.
Under the law plaintiff was due to disburse these fees to the county's general fund. Presumably the law under which this duty arose was valid. Presumably also, therefore, he had no claim against the county until an authoritative pronouncement by the court held otherwise. When such pronouncement occurred, his claim for reimbursement arose, and the statute of non-claim properly dates therefrom.
We have heretofore had no occasion to construe the statute of non-claim presenting circumstances as here disclosed. Our attention is directed, however, to a number of cases from the Supreme Court of South Carolina holding in effect that under circumstances such as here disclosed, no presentation at all was to be expected, as the "county board", as there called, had no power to decide the question, saying: "It is foolish to say that the county board has exclusive original jurisdiction of a matter in respect to which its favorable action would be a nullity." Gamble v. Clarendon County,
We need not express full agreement with all that is said in those opinions upon this question, though they serve well to illustrate the point.
In the first place, we think the claim filed by plaintiff demonstrates that it need be audited (sections 224, 225, Code of 1923), and duly presented as required by section 228, Code of 1923 (see, also, section 5680, Code); and that plaintiff's claim does not come within any excepted class.
The point of our decision relates to the date of its accrual, or the time when it becomes payable. We have stated our conclusion that under circumstances as here disclosed this period of time is the decisive determination by the court that the law under which plaintiff acted was declared invalid.
Defendant insists that such a holding defeats the purpose of the non-claim statute; that the county authorities have used the money in previous years, and to be required to now refund would disturb and upset the budget of the county for the year.
But as we view it, this is but an argument upon the inconvenience of being required to pay, an argument which should not stand in the way of a fundamental right. And considered from the standpoint of inconvenience, we still think the argument untenable. Under the express language of section 186, Code of 1923, the court of county commissioners may well have made provision for plaintiff's claim.
This suit was filed in April 1939, and the claim itself was presented in August 1938. Under the decisions of this Court, which had been rendered previous to these dates, the fees which plaintiff had paid to the county belonged to him, and this the county *7 authorities presumably knew. Whether they would be able to defeat their recovery was of course uncertain. But in any event, they were aware plaintiff's claim came within the meaning of "equitable claims or demands" treated in said section 186, supra. Therefore the county authorities had ample opportunity to set aside this fund as a contingent liability, and fix the county's budget for the next fiscal year beginning October first in accordance with such contingent appropriation. If, therefore, inconvenience results, it must be said to rest upon a failure to guard against a contingent liability. But, as we have previously observed, any mere matter of inconvenience is not to defeat a fundamental right.
Based upon the broad ground of public policy, the law favors the payment in full of the compensation allowed by law to public officials. And that no consideration of the principles of waiver or estoppel stand in the way of plaintiff's recovery, is well settled by the case of Hamilton v. Edmundson,
Indeed, we do not understand counsel for defendant to seriously contend otherwise. That plaintiff acted promptly and in due time under the statute, as here construed, is not controverted. It follows, therefore, that the non-claim statute presents no bar to recovery.
This conclusion renders unnecessary a consideration of the further insistence based upon the theory of a mutual account, and that question is therefore left to one side and undetermined.
Upon the defense of voluntary payment little need be said. Plaintiff disbursed this money and paid these fees to the county under a mistake of law, but with knowledge of all the facts. There was no fraud or improper conduct on the part of the county payee. And under the weight of authority, uninfluenced by statute to the contrary, it is a voluntary payment, and recovery is to be denied. 48 Corpus Juris 755. Our own cases are in accord with this view. Southern Rwy. Co. v. City of Florence,
The rigid application of this rule of voluntary payment has confessedly resulted in many "hard cases" (48 Corpus Juris 756), and the writer, speaking for himself alone, is of the opinion it has often been pressed to unnecessary extremes. It is the settled law, however, and must be observed by the courts.
But we are of the opinion the instant case is influenced by our statute (section 186, Code of 1923), and the rule of voluntary payment is of consequence here to be relaxed. And though section 2619, Code of 1923, is not strictly applicable to the facts of this case, yet it tends to illustrate the legislative thought in matters of this general character. The reason of the rule concerning voluntary payment rests upon grounds of public policy and convenience. 21 R.C.L. 143; 48 Corpus Juris 756, note (a); Hemphill v. Moody, supra. The language of section 186 of the Code is broad enough to embrace an equitable claim, such as plaintiff has in this case. This statute, as now enacted, is an enlargement of the original act and covers a broader field. See, General Acts 1915, page 704, and General and Local Acts, Special Session 1920, page 154.
The language of this statute clearly indicates a legislative policy that payments made under a void act may be refunded by the county without regard to the rule governing voluntary payments, and that the rule in such cases is to be ignored.
But defendant says this statute is not compulsory, but permissive only, citing Escambia County v. Dixie Chemical Products Co.,
The question of moment is whether or not the legislature had demonstrated a different policy in cases of this character, and a waiver of the strict requirements which inhere in the rule applicable to voluntary payments. We think it has, and so considered, we are of the opinion plaintiff is not to be denied his recovery upon this theory of the case. And this conclusion is further strengthened by consideration of the principle that payments made by public officers under mistake of law may be recovered. 48 Corpus Juris 757; City of Demopolis v. Marengo County,
Lastly it is suggested, though apparently not seriously argued, that the constitutional amendment ratified in December 1935 by election duly held (General Acts 1935, page 1170 [passed September 13, 1935]) validated sections 370-A and 370-B of the General Revenue Act. But we think it clear enough this amendment had reference to the salary act passed prior to the submission of the amendment, which was to become effective upon its adoption. Local Acts 1935, page 62, approved June 12, 1935. Practically all the fees here involved were earned prior to the adoption of this local amendment, which adds force to the conclusion as to its true meaning, in view of the provision of our State and Federal Constitutions. Houston County v. Martin, supra.
It results as my conclusion there was error in the ruling sustaining the demurrer to the complaint, and that the judgment should be reversed and the cause remanded. I therefore respectfully dissent.
FOSTER, J., concurs in the foregoing opinion.
Addendum
Application for rehearing overruled.
ANDERSON, C. J., and THOMAS, BOULDIN, and BROWN, JJ., concur.
GARDNER, FOSTER, and KNIGHT, JJ., dissent; KNIGHT, J., joining in the dissenting views of Justice GARDNER hereinabove set forth.