Mobile County v. Williams , 180 Ala. 639 ( 1913 )

de GRAFFENRIEN, J.

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.

1. A county is, in one sense, a corporation, and in that sense it has its officers or agents who, when acting within the authority conferred upon them by law, may legally bind the county. In another sense a county is a political subdivision of the state, created for the purpose of aiding the state in the administration of government of the state. In this latter sense a county is an arm of the state; its officers are public officials and are officers holding office under the laws of the state within the meaning of our Constitution; and their compensation is fixed by law. When, within the scope of their powers as fixed by statute, the county commissioners of a county are dealing simply with the business affairs of the county, such commissioners are, in fact, the agents of the county considered as a corporation, and they may bind the county just as the agents of any other corporation may bind the corporation of which they are the agents so long as they act within the actual scope of their authority. When, however, the members of the court of county commissioners of a county act in the other and broader field — when they leave the realm of business and are acting in their capacity as “officers holding office under the laws of this state” — their acts can confer no more rights upon persons claiming through such acts than do the acts of any other public official or set of public officials of the county or state. It may be well to bear this distinction in mind for the act of a public official, no matter what his apparent authority may be, which he is not authorized to perform, is void, not merely voidable, and confers no rights of any sort upon any one. “All who deal with officers or agents of the government must inquire at their peril into the extent of their powers.”—State ex rel. Lott v. Brewer, 64 Ala. 287.

2. A void thing is no thing. It has no legal effect whatsoever, and no rights whatever can be obtained under it or grow out of it. In law it is the same thing as if the void thing had never existed. — Words and Phrases, vol. 8, p. 7332. It is true that a void deed may, in a proper case,- be introduced in evidence as color of title to lands held adversely, but the adverse possession only can create the title to the land. The void deed is simply admissible for the purpose of showing the extent of the possession and the character of the adverse holding. When, however, the records of a court affirmatively show that one of its judgments is void, then that judgment confers no rights upon any one and furnishes protection to no one.

3. “The law of fees and costs must he held to be penal, and no fee must be demanded or received, except in cases expressly authorized by law.” — Code of 1907, § 3693.

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.

4. The law in this state is well settled that the court of county commissioners of a county, in auditing and allowing claims against the county, acts in an administrative capacity only, and that the allowance of a claim by such a court is prima facie evidence only of its correctness. When “a claim is allowed which is not legally and properly chargeable against the county, the commissioners’ court exceeds its authority, the allowance of the claim is void, and the county is not estopped from disputing its liability.”—Commissioners’ Court v. Moore, 53 Ala. 25. In such a case, “if the funds are in the treasury of the county to pay the same, and the county treasurer should be proceeded against for a failure to pay on demand, it would be his duty1 to set up in defense the invalidity of the claim.”—Commissioners’ Court v. Moore, supra. “If the record should show affirmatively that the court has allowed a claim not legally chargeable on the county, the allowance of which” is in “excess of the authority with which the court is intrusted, the allowance would be void.” It is only “when the claim is of the character with which the county is by law chargeable” that a prima facie liability can be created by the order of the court of county commissioners.—Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 576, 17 South. 112.

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.

5. There appears to be no doubt about the proposition, so far as the laws of Alabama are concerned, that when a public officer collects money from a county, as fees or compensation for services rendered by him, and to which fees or compensation he is not legally entitled, such county can maintain a suit for the recovery of the money so illegally obtained by him and recover the same. We can properly quote as applicable to the facts of the present case the following from the Supreme Court of Indiana: “The rule preventing the recovery of money voluntarily paid has no application under the facts in this case. As charged in the complaint, the claims were allowed and the money paid, without any legal authority for so doing. In view of the alleged facts, those claims were not-only allowed in violation of law, but they were presented by the appellee, and the money of the county unlawfully received by him, and he is chargeable with knowledge of the illegal acts. It was no payment by the county. The latter, as the principal, had no part in the payment. It could not, ás a public corporation, be held to the consent to the payment of, or expenditure of, the public money in defiance of law. Awarding to the appellee this money, under the alleged facts, was in a legal sense equivalent to an unlawful appropriation of the county’s money to his own use by the aid, of its board of commissioners. The alloAvance. and payment of the money being unlawful, the commissioners did not act within the scope of their authority and therefore did not bind the county.”—Commissioners v. Heaston, 144 Ind. 583, 41 N. E. 457, 43 N. E. 651, 55 Am. St. Rep. 192; Board v. Ellis, 59 N. Y. 620; Lee v. Board, etc., 124 Ind. 214, 24 N. E. 986; McElrath v. United States, 12 Ct. Cl. 201; American S. Co. v. Young, 89 Pa. 186, 33 Am. Rep. 748; Dew v. Parsons, 2 B. & Ald. 562; Stut v. Williams, 8 Exch. 625; Fire Ins. Co. v. Britton, 8 Bosw. (N. Y.) 148; Ogden v. Maxwell, 8 Blatchf, 319, Fed. Cas. No. 10,458; Comer v. Board of Com’rs of Morgan County, 32 Ind. App. 477, 70 N. E. 179; State ex rel. Board of Com’rs of Tippecanoe County v. Flynn, 161 Ind. 554, 69 N. E. 159.

6. A statute declaring for what purposes a bond shall be binding upon a public official is to be read into the bond and forms a part of it to the same extent as if set out in the bond.—Waterman’s Case, 29 Ind. App. 344, 61 N. E. 743, 63 N. E. 42; State v. Fletcher, 1 Ind. App. 581, 28 N. E. 111; Brandt on Suretyship & Guaranty (3d Ed.) vol. 1, p. 227, § 105; McElhaney v. Gilleland, 30 Ala. 183; Mason v. Crabtree, 71 Ala. 479.

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. In Webster’s Dictionary color is defined to be “guise, appearance, pretense.” Mr. Bishop says that extortion is committed by a public officer if he corruptly demands and receives a fee under circumstances when no fee is due. He also says that the fee must be procured by an officer under color of Ms office. See 2 Bishop on Criminal Law, §§ 393 and 395.

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 right, the act of making the claim and of collecting the fee would still he an act done under color of his office. The absence of the bad intent would, in the latter case, rob the case of its criminal aspect, but only of its criminal aspect. And so, if a judge of probate, while probate judge, does an act - as probate judge, 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 should make the claim and collect the illegal fee' in good faith, acting under a mistake as to his rights, the act of making the claim and of collecting the fee would still be an act done under color of his office. The absence of the bad intent-would, in the latter case, rob the case of its criminal aspect. Of course, if one who has been an officer should, after the expiration of his term as a public official and after he had ceased to act as such official, lay claim to a fee to which he was not legally entitled and should collect the fee, he could not be said to have made that claim and collection under color of his office, for in such a case, when he made the illegal claim and collection, he held no office which could give color to his act. A county is clearly a person within the meaning of the above- quoted statute and is protected under its provisions.

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 can, of course, be of no service to this court on tbe subject now under discussion, since the bond in this case, by virtue of our statutes, protects the county, of Mobile against any wrongful act of the probate judge of that county “committed under color of his office.” In the above case of State v. Flynn the Supreme Court of Indiana had before it a case where there was an effort to hold a clerk of a court responsible for money which had been paid him as compensation for work done, not as clerk, but for work done by him as an individual under contract — work which was not covered by any of the duties which the law required of him as clerk or which was within the purview of his duties as clerk — and, of course, as the work was not within the contemplation of his office, he was plainly not liable on his official bond because the work done by him was. not work covered by any of his official duties or within the contemplation of his bond, but was work which he had done under special contract with the county made by him, not as clerk, but as an individual, and which contract the county was lawfully entitled to make.

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.

7. The general facts in this case, as we gather them from the pleadings, are as follows: Price Williams, Jr., is the probate judge of Mobile county. He presented a bill to the court of county commissioners of said county, in which he claimed that the county owed him for the following sums of money:

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.

8. There were a number of pleas to the complaint, but pleas 4 and 5 are the only pleas which present any questions for our consideration. From what we have above said, it is evident that we are of the opinion that the demurrer to plea 5 should have been sustained. Plea 4 admits that the claims presented to the court of county commissioners by Judge Williams were for amounts which he claimed to be due him for services rendered by him in his official capacity as probate judge of Mobile county; and, taking the plea most strongly against the pleader, the plea admits that Judge Williams was not entitled to any compensation under the law for the services so performed. It is conceded in brief of appellee, as we understand the brief, that, under the averments of the plea, the fees so collected “were illegal and unauthorized.” Plea 4 undertakes to defeat this action of the county because after an examiner of public accounts had made an examination of the office, and the fact that said fees had been illegally demanded and allowed was called to public attention, the court of county commissioners, upon a proceeding had for the purpose, made a compromise of the claim. The court of county commissioners undertook to make said compromise under the authority conferred on them by subdivision 11 of section 3313 of the Code of 1907, and ’which authorizes such courts “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.” The court of county commissioners have no right to compromise, under the authority conferred by the above section, any claim in favor of the county, except such claims as were in existence when on August 26, 1909, the Code of 1907 was adopted, and then only such claims as are doubtful and which were paid in good faith, by order of the court of county commissioners. The words “doubtful” and “good faith,” used in the above subdivision, are jurisdictional, and, unless the claim is of doubtful validity and the money was paid in good faith by order of the court, then the members of the court of county commissioners, acting in said matter, are without authority to act, and if, under such circumstances, they do act and compromise such a claim, then such compromise is void and not binding on the county.—Commissioners v. Moore, supra.

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 is an illegal act. Such a payment is not to be construed as the payment of -a claim against the county in its corporate capacity, within the meaning of subdivision 3 of said section 3313, but, as we have already said, as the payment, illegally and without warrant of law, to a public officer of public money belonging to the county in its political capacity as an arm of the state. The law prohibits an officer- from receiving such compensation, and, if he does so with a corrupt intent, he is guilty of a criminal offense. If he does so without corrupt intent and in ignorance of the law, then under the laws of this state, the act is not criminal but is nevertheless illegal. He is, in a civil proceeding brought against him for the recovery of such money by the state or county, conclusively presumed to know the law and to have known the law when he presented his claim and received the money. He will not, in such a proceeding, be permitted to set up his own wrong and to show that the officer who delivered the money to him did so in good faith. He will not be permitted to show that another officer was innocently misled by him to prevent a recovery of money which he, by his illegal act, done under color of his office, has thereby been enabled to obtain out of the public funds. He is not in a position to invoke the healing effects of the statute which, in this case, is relied upon as conferring authority upon the court of county commissioners to compromise this claim. The legal effect of this transaction, construing plea 4 most strongly against the pleader, was, so far as the appellee is concerned, that appellee, under color of his office, obtained money out of the county treasury, to which he had no legal claim, illegally and without ■consideration and without the knowledge or consent of the county. The commissioners’ court, having no authority to act in the premises, were not only unable to give the consent of the county, bnt their knowledge did not constitute knowledge to the county. The legal effect of the transaction, in so far as the commissioners’ court is concerned, ivas that the members of the commissioners’ court, acting as public officials, without authority, donated a part of the public funds of the county to a purpose to which, under the law, that court was without authority to donate such funds. While the claim of appellee and the act of the commissioners’ court may not have been mala tides, neither appellee nor the commissioners’ court, in this civil proceeding, can be permitted to invoke their ignorance of the law and the fact that they acted in good faith as a justification of their acts. The treasurer who paid out the money upon the faith of the order of the court of county commissioners may possibly occupy, in this matter, however, a different position. If, in good faith, he paid out the money, he may possibly be in a position to invoke the powers of the commissioners’ court to compromise the claim of the county against him. He has not received any money to which he is not legally entitled. He has, acting in good faith, probably paid out, upon a void order of the court of county commissioners, money which he should have retained in his possession. If so, he may possibly be in a position to invoke the aid of the statute. That question, however, is not before us, and we do not determine it.

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 diligence, perform all of the duties of the office for the fees which the law attaches to the office. If the law imposes upon the incumbent of an office duties for Avhich it provides no fees or other compensation, he must perform those duties, and for performing them he can neither demand nor receive any compensation whatever. When, therefore, the appellee presented under color of his office claims'against the county Avhich, under the law, he had no right, as such officer, to charge against the county, he made an illegal claim against the county. When the court of county commissioners made the order that the treasurer pay those claims, that court made an illegal and a void order. When appellee presented those claims to the county treasurer for payment, he presented and demanded the payment of void and illegal claims, and, Avhen those claims were paid, appellee received money to which he had no legal, valid, or just claim. This Avas, in a legal sense, a misappropriation by the appellee, through the court of commissioners of the county, of the public funds of the county. “It Avas no payment by the county. The latter, as the principal, had no part in the payment. It could not, as a public corporation, be held to consent to the payment of, or expenditure of, the public money, in defiance of law. AAvarding to the appellee this money, under the alleged facts, was, in a legal sense, equivalent to an unlawful appropriation of the county’s money to his own use by the aid of its board of county .commissioners.”—Commissioners v. Heaston, supra. The records of the court of county commissioners necessarily show upon their face that the orders under discussion were coram non judice and void; but it may be-that the treasurer of the county, without inspecting the-records but acting in good faith with reference to said orders, and assuming that those whose orders he had been accustomed to obey had not acted beyond their powers, paid the claims. If such be the case, then the treasurer may possibly be in a position, as before said, if a suit had been brought against him, to invoke the authority conferred upon the court of county commissioners by the above statute; but, as already said, we are of the opinion that the appellee in this case certainly does not occupy that vantage ground,' and we are therefore of the opinion that the demurrer to plea 4 should have been sustained.

9. The law is and should be extremely careful, watchful, and exacting of public officers when they, under the color of their offices, are dealing with each other with reference to the public funds. There are, of course, many duties resting upon the members of the court of county commissioners, with reference to the property and affairs of the county, which the law has committed to their care. The law has not, and in the nature of things cannot enumerate every claim which, in administering the affairs of the county, they may lawfully create against the county. It has said that some things they shall not do and, as to those things they have no power to act. If, in their management of the business affairs of the county, they should make a contract or do some act not prohibited, and the county should receive the benefit thereof, and it was afterwards discovered that they had exceeded their powers as the agents of the county in the matter, then if, under the orders of the commissioners, a claim, arising under such circumstances, had been paid in good faith out of the treasury, and the county should threaten suit for the recovery of the money so paid, the court of county commissioners might, under the above statute, compromise and settle such claim. In other words, the statute has a useful field of operation without extending its terms to a pub-lie officer who, under the color of his office, has, through the court of county commissioners, obtained money to which he had no legal claim.—Jack v. Moore, 66 Ala. 184.

10. There are decisions of some of the courts of last resort of some of our sister states which are opposed to some of the above views.—Furlong v. State, 58 Miss. 717; Jennings, Governor, v. Bobe, etc., 51 Fla. 229, 40 South. 194, 120 Am. St. Rep. 156. The opinions in both of these cases show that in Mississippi and Florida, when these decisions were rendered, there were no statutes providing that official bonds should protect persons or counties against the wrongs of an officer done wider color of his office as is the case in Alabama, but that such bonds only protected against wrongs suffered through the official acts of such officers.

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.

11. In the above discussion we have taken the allegations of the appellees’ pleas as they should on demurrer be taken; i. e., most strongly against the pleader. We have devoted to this case much time and attention and have undertaken to express our views of the law of the case as we find it to exist. We have construed subdivision 11 of section 3313 of the Code in the only reasonable way in which, in harmony with the previous decisions of this court, it can be construed. To place the construction upon it contended for by appellee would be, to use almost the very words of a distinguished judge who was discussing a question somewhat similar to the one now under consideration, to pave the way by which it would be easy for a public officer, under the guise of a legal claimant against a county, through the aid of its commissioners, if the latter were inclined to close their eyes to legal prohibitions, to unlawfully obtain and appropriate to his own use the public money, and, when called upon in a court of justice to account for the same, deny the right of the county’s recovery upon the ground that he had made a compromise with the commissioners who had, by their own illegal act, enabled him to obtain the money. We cannot believe that it was the purpose of the Legislature to thus allow public officials to thus Condone their own illegal acts; and this statute must be construed according to the legislative purpose. It seems to us, therefore, that the trial court erred, in overruling the plaintiff’s demurrer to the defendant’s plea 5, as above stated.

Be ver sed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting, and Mayfield, J,, dissenting.