Jones v. Graham , 21 Ala. 654 ( 1852 )

LIGON, J.

— The only question presented on the record for our consideration arises on the charge of the court below, and is this, does the proof set out in the bill of exceptions authorize a recovery ?

There can be but little doubt that it does. Not, indeed, for the full amount claimed in the declaration, but to some extent, which the jury alone could ascertain from the proof. The plaintiff proved that he was regularly appointed physician to the penitentiary on the 7th February, 1848, and that he regularly discharged the duties of his office until the 18th day of that month, when the defendant hindered him from further performance by refusing him admittance into the hospital ; that he continued afterwards ready to perform such duties, and offered to do so, but was still hindered by defendant, who was lessee of the penitentiary. He further proved that he had never been removed from office, either by the inspectors, the General Assembly, or the Governor.

The rights and duties of the physician and lessee of the penitentiary, at the time of the appointment of the plaintiff to the former office, were, in one respect, essentially different from what they were at the commencement of this suit. By the law, as it then stood, the physician was to be appointed by the lessee, with'the advice and consent of the inspectors; and if, on the happening of a vacancy, the lessee failed to fill it in three days, it became the duty of the inspectors to do so the fourth; and to the inspectors alone was given the power of removal, which might be,exercised when it was ascertained that the appointee was incompetent, or had neglected his duty. Sess. Acts 1847-8, 126. Under this act, the plaintiff was appointed to office by the inspectors. The salary of the physician was fixed by law at $500, payable quarter yearly. Clay’s Dig., 897, § 6. And the lessee was required to pay it. Sess. Acts, 1845-6, 11, § 8.

The law imposes the duty on the lessee to pay to the physician a stipulated amount, at set times; and when the plaintiff was duly appointed to office on the 7th February, 1848, he had the right to demand and recover of the defendant a fourth part of his salary at the end of everjr three months’ service during his continuance in office, and proportionably for a shorter period, if not removed from office; and this, notwithstanding the defendant hindered him from the discharge of his official duties.

At tbe time tbe plaintiff was appointed, tbe defendant bad no power to remove bim. Tbe latter conld not avoid bis liability to pay tbe salary of tbe former, by refusing to admit bim into tbe hospital. So long as the plaintiff remained in office, untouched by those who bad the legal power to remove bim, be was entitled to bis salary, and bad tbe right to recover it of the defendant, so soon as it was due under the statute. No express promise to pay it, on tbe part of the defendant, is necessary, to render tbe plaintiff’s right pf action complete, and consequently there was no necessity to prove one on tbe trial. Tbe law creates tbe liability of tbe defendant, and implies a promise to pay tbe plaintiff bis salary as physician.

Thus stood tbe law regulating tbe rights and liabilities of tbe parties to this record, until tbe 6th of March, 1848. On that day tbe Governor approved an act passed by tbe General Assembly, giving tbe lessee tbe power to remove tbe physician of tbe penitentiary from office. Sess. Acts, 1847-8, 121, § 1. How far this act will affect tbe rights of tbe plaintiff, who had been appointed to office before its passage, or what act on tbe part of tbe lessee, if any, would amount to a removal from office, we do not now decide, as these questions were not discussed before us; but it is certain, that a refusal by tbe lessee to admit tbe plaintiff into tbe hospital on tbe 18th February, 1848, tbe time it was proved to have happened, could not have that effect, because, at that date, the lessee did not possess tbe power of removal. Tbe question of tbe time when tbe removal took place, if at all, should have been left to tbe jury, as well as tbe sum due tbe plaintiff at tbe time of such removal.

In tbe aspect in which this case is presented by tbe assignment of errors, we are relieved from all inquiry as to tbe form of action. Legitimately we can only examine tbe charge of tbe court in reference to tbe proof set out in the bill of exceptions, as this alone is assigned for error. This we bold to be erroneous.

Let tbe judgment be reversed, and tbe cause remanded.