139 So. 277 | Ala. | 1931
The purpose of this litigation is to test the constitutionality of the act approved May 27, 1931, which provides, in counties of 300,000 or more inhabitants, for the payment into the county treasury of all official or trust funds coming into the possession of the county officers and employees.
That the circuit clerk is a constitutional county officer (section 165, Constitution 1901) and the proper custodian of funds paid into court (Coleman v. Ormond,
It is not pretended that the act in question runs counter to any express constitutional provision, but the insistence is that the clerk, being a constitutional officer, may not be deprived of any of his duties by the Legislature. The authorities are not entirely harmonious upon this question. Throop on Public Offices, § 19; 22 R. C. L. § 294; 46 Corpus Juris pp. 1035, 1036; State ex rel. Kennedy v. Brunst,
In Hutton v. King, supra, the Arkansas court, speaking to the question, said: "It is a well-established principle that a constitutional provision merely creating an office does not amount to a prohibition against legislative action varying the duties of that office. The rule is stated by Mr. Throop to be that: 'Unless the Constitution otherwise expressly provides, the Legislature has power to increase or vary the duties, or diminish the salary or other compensation appurtenant to the office.' "
And the North Carolina court, in Fortune v. Buncombe County Comm., supra, used the following language: "The office is constitutional, it is true, but the duties are statutory. The Legislature may within reasonable limits change the duties and diminish the emoluments of the office, if the public welfare requires it to be done, and to this the incumbent must submit."
But a pursuit of the authorities elsewhere is unnecessary, as this court long since adopted the view expressed in the two last-noted quotations. In Ex parte Lusk,
The act in question in no manner affects the emoluments of the office. On the other hand, it relieves the clerk of responsibility for the safe-keeping of the funds when so deposited with the county treasurer. It relieves him of an apparently onerous duty without resulting in diminution of compensation. Nor does it provide an entirely new practice, as it follows that obtaining in the federal courts (Howard v. U.S.,
It is further suggested that money paid to the clerk in a pending cause is in custodia legis, and not subject to be disturbed. It would seem that this argument overlooks the well-known rule that, in the absence of any inhibitions in the State or Federal Constitution, the legislative power in this respect is supreme. Ex parte Lambert,
We conclude therefore that the chancellor correctly upheld the validity of the statute and properly entered the order sustaining the demurrer to the bill and dissolving the temporary injunction theretofore issued.
Let the decree be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.