Dunn v. Meyer

1. Where the petition shows that the plaintiff as a member of the State Board of Barber Examiners rendered actual services for 812 days, and was paid for such services only $7.50 per day, instead of $10 per day as provided by the Code, § 84-405, and he alleges that there were at the time, and had been ever since, funds available to satisfy his claim for the difference between the amount paid and the amount due under the law, and that itemized and verified statement of his claim has been filed with the board, which fails and refuses to allow and approve the same, a cause of action for the writ of mandamus against the members of the board is stated, and the petition is not subject to general demurrer.

2. Where upon the trial of the case the evidence shows that the plaintiff as a member of the board was the author of a resolution, adopted unanimously by the board, which reduced the compensation of the members of the board from $10 to $7.50 per day, and that the plaintiff has rendered services for approximately three years since the adoption of such resolution and has claimed only the reduced compensation, which has been paid to and accepted by him, such evidence shows a waiver on his part to his right to demand the per diem compensation fixed by statute, and estops him from subsequently making claim to the unpaid balance. While the defendants filed no special plea, the averments of the petition seek to negative waiver; and since evidence introduced by the plaintiff together with the stipulation of facts agreed to by him shows waiver on his part, this defense is available to the defendants without a special plea setting it forth.

No. 13905. OCTOBER 15, 1941. REHEARING DENIED NOVEMBER 13, 1941. Philip A. Meyer, a former member of the State Board of Barber Examiners, filed a petition in Cobb superior court against H. W. Dunn, as chairman, Mrs. C. C. O'Neal, W. B. Horton, B. L. Stephenson, and P. C. Hutcheson, as members of the State Board of Barber and Hairdresser Examiners, and R. C. Coleman, as joint secretary of the State Examining boards, seeking a mandamus absolute to compel the members of the board to allow his claim of $2030, and the joint secretary to pay the same. Meyer alleged that he was a members of the State Board of Barber Examiners from November 16, 1931, to November 11, 1935; that under the Code, § 84-405, his compensation was fixed at $10 per day for actual services, in addition to certain expenses; that during the years 1933, 1934, and 1935 all funds collected under the provisions of chapter 84-4 of the Code of Georgia were appropriated for the purpose of paying salaries and expenses due to the members of said board; that on April 3, 1933, the board of barber examiners adopted a resolution reducing Meyer's compensation from $10 to $7.50 per day for actual services rendered; that the board had no authority to reduce his compensation, because the amount thereof was fixed by the Code, § 84-405; that the statute fixing his salary amounts to an appropriation of funds necessary to pay the same; that the joint secretary and the board had at that time, and has had at all times since then, and now has sufficient funds on hand that can be legally used for the purpose of paying to Meyer the amount to which he is entitled under the statute; and that he made written demand on the members of the board for the amount due him, which he is entitled under the statute; and that he made written demand on the members of the board for the amount due him, which demand was refused, and the defendants refused to allow his claim. A copy of the claim as presented to the board, attached to the petition and marked exhibit A, is as follows: "Georgia State Board of Barber Examiners. To Philip A. Meyer, Dr. For services rendered as a member of the Georgia State Board of Barber Examiners from April 3rd, 1933, to November 11th, 1935, at $10 per day, 812 days — $8120. Received on account, from the Georgia State Board of Barber Examiners and the Joint-Secretary of the State Examining Boards, $6090. Balance due July 10th, 1939, $2030. Note: This statement does not cover any amounts due or paid as traveling expenses during said time, all such amounts due having been paid in full." The petition alleged, that the refusal of the demand was in writing, and a copy of the refusal is attached to the petition as exhibit B; that the members of the board are illegally refusing to allow said claim, and Coleman is illegally refusing to issue a voucher in payment of said claim, as required by the Code, § 84-102; that between April 3, 1933, and November 11, 1935, the petitioner actually rendered service as a member of the board for 812 days, for which services he received compensation as shown by exhibit A, being payment at the rate of $7.50 per day, whereas he was entitled to receive the full amount shown by exhibit A, or at the rate of $10 per day as fixed by law; that he did not consent to the reduction of his compensation, and protested both to the chairman of the board and joint-secretary at the time a resolution was adopted by the board on April 3, 1933, reducing petitioner's compensation; that it is the legal duty of the members of the board to approve and allow his claim, and of the joint-secretary to pay it.

The defendants filed demurrers and answers. On February 5, 1941, by consent, the case was submitted to the judge, without intervention of a jury, for the purpose of obtaining judgment on the demurrers and on the prayer for mandamus. All pleadings were put in evidence, and the case was submitted on an agreed statement of facts. It was stipulated that the defendants occupied the official positions alleged; that the plaintiff was a member of the State Board of Barber Examiners from November 16, 1931, until November 11, 1935; that during this period he attended meetings of the board and performed the services of visiting various cities and towns in the State, inspecting barber-shops and seeing to it that the shops and barbers complied with the rules and regulations of the board; that he explained the rules to the barbers, and prosecuted for violations of the rule; that he received $10 per day and expenses for his services until April 3, 1933, and thereafter received for the same services $7.50 per day. Paragraph 8 of the stipulation of facts is as follows: "On the following dates the plaintiff was actually engaged in meetings of the board and as a member of the board: 1933: April 3. April 4, April 19, May 17, July 12, September 1, October 20, November 23. 1934: January 4, February 21, February 23, August 10, August 11. 1935: January 1, January 29, August 27, September 9, September 25, September 26, October 25." Paragraph 9 of the stipulation states that it is agreed that on April 3, 1933, the State Board of Barber Examiners, as shown by the official minutes, passed the following motion: "Mr. Meyer making motion to cut each board member's salary twenty-five per cent., or [to] $7.50 per day, and continue with reduced expense account according to recent ruling received for the remainder of the year beginning April 5, 1933, working six days per week, provided money is available. Motion seconded by Mr. Kitchens, and carried." It was further stipulated that the board received the verified statement and demand from plaintiff, attached to the petition as exhibit A, and that the board refused to approve the claim. It was stipulated that W. B. Horton is the only person now serving on the board who was serving with plaintiff during any part of the period for which compensation is claimed, and that Horton is neither personally nor officially acquainted with the services performed by the plaintiff, but that as a member of the board Horton voted to allow the claim for compensation filed by plaintiff while he was a member of the board, and that each such claim was for $7.50 per day, and was paid in full. The plaintiff introduced his affidavit in which he testified, that he was present at the board meeting on April 3, 1933, at which Mr. Morrison, the chairman, suggested a voluntary reduction in compensation from $10 to $7.50 a day; that plaintiff stated that he was not in favor of doing this, and was informed that the Secretary of State had said that it should be done, and the chairman stated that the Governor had a right to oust the members of the board who were unwilling to accept $7.50 a day as compensation, and that because of this statement the deponent voted in favor of the resolution reducing the compensation, but that he did not recall having made the motion. The plaintiff further testified, that "he actually attended the board meetings as a member of the board on the dates set forth in paragraph 8 of the stipulation of facts, and on the other days he was actually at work as a member of the board; this work consisted of traveling to various towns and cities in Georgia, calling on barbers in those towns, inspecting barber-shops and equipment to see that they complied with the regulations of the board of barber examiners of Georgia; examining licenses and seeing that the barbers had licenses and that they complied with said regulations; discussing and explaining these regulations to barbers and proprietors of barber-shops; warning them to comply with these regulations; and making and prosecuting cases in court for violations of these regulations, and performing other incidental services in connection with his work as a member of said board as required by the regulations of the board."

On July 10, 1941, judgment was entered, sustaining the demurrer of R. C. Coleman and dismissing the action as to him. The judge overruled the demurrer of the other defendants, and granted a mandamus absolute, requiring them to allow and approve for payment by the joint-secretary the claim of plaintiff for $1982.50, covering services rendered for 793 days at $2.50 per day, the difference between $7.50 per day actually paid and $10 as fixed by the statute. On the same day an order was passed, making parties defendant persons who since the institution of the suit had become members of the board of barber and hairdresser examiners, and requiring W. B. Horton, as successor chairman of the board, to comply with the terms of the order of the court. The defendants excepted. 1. The petition is based on the Code, § 84-405, where it is declared: "Each member of said board shall receive a compensation of $10 per day for actual services, and in addition thereto actual expenses while in attendance upon meetings of the board and actual traveling expenses, which compensation shall be paid out of moneys collected under the provisions of this chapter, after an allowance thereof by the board upon an itemized and verified claim therefor, approved by the chairman of the board, being filed with the joint-secretary, State Examining Boards, by the member claiming the same. In no event shall any part of the expenses of the board or any member thereof be paid out of any other funds." The plaintiff sought to recover the difference between $7.50 per day for 812 days, which he admitted was actually paid, and the $10 per day fixed by the statute. We reject the contention of the defendants that the statute should be construed to fix the compensation of the board members only for services rendered in attending meetings of the board. The language of the Code section itself will not bear such construction, and reference to the original act (Ga. L. 1914, p. 75) discloses that, in originally fixing the per diem compensation, section 5 of that act provides that such compensation shall be for services rendered in attending to the business of the board. In section 4 it is provided that any member of the board shall have power to enter and inspect the sanitary condition of barber-shops, and that for a violation of the sanitary rules promulgated by the board the license to operate a barber-shop may be revoked. Thus it is clear that the legislature intended that such inspection by members of the board should constitute business of the board, and that the compensation therefor should be that fixed in section 5 of the act. The plaintiff alleges that there were at the time, and at all times since have been, sufficient funds available that could be lawfully applied to the payment of his claim. A cause of action is set forth, and the judgment overruling the general demurrer to the petition is sustained. Moseley v. Garrett,182 Ga. 810 (187 S.E. 20); Freeney v. Pape, 185 Ga. 1 (194 S.E. 515); Best v. Maddox, 185 Ga. 78 (194 S.E. 578); Irons v. Harrison, 185 Ga. 244 (194 S.E. 749).

2. The evidence, either by way of stipulation or of testimony of the plaintiff, presents a case of waiver by the plaintiff of his right to recover the unpaid balance of compensation fixed by the statute. The Code, § 102-106, declares: "Laws made for the preservation of public order or good morals can not be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest." InMacNeill v. Steele, 186 Ga. 792 (199 S.E. 99), it was held that since the salary of court bailiffs was fixed by law, the bailiff could not waive any portion of such salary and would not be bound by any agreement to accept less than the salary which the law fixed. That decision was based upon the rule that an officer's right to his salary does not grow out of a contract by which it is payable, but that the compensation belongs to the office, is an incident to the office, and that the official is entitled to it, not by force of any contract, but because the law attaches it to the office. We recognize that the ruling in the MacNeill case conforms to the general rule consistently applied by this court in cases of the nature there dealt with. But the instant case is materially different, in that the law does not fix a lump sum salary per year or for any other period for a member of the board, except when he goes further than merely qualifying and assuming the title of his office and actually renders services, the compensation allowed him by law being restricted to such time and such time only as is consumed by the officer in rendering services. It is further conditioned or limited in that the officer is not free to decide for himself the amount of time he shall be permitted to serve, but this question depends entirely upon the will and judgment of the board as a whole. This is necessary to enable the board to faithfully perform the duties imposed by law. The same Code section which provides for the per diem compensation further provides that this "compensation shall be paid out of moneys collected under the provisions of this chapter, . . [and] in no event shall any part of the expenses of the board or any member thereof be paid out of any other funds." Thus the law limits the services and expenses to a designated fund, and imposes upon the board the duty of limiting both services and expenses to the extent of bringing them within the funds available to pay the same. A case very similar in principle is that of Barfield v. Atlanta, 53 Ga. App. 861 (187 S.E. 407). There the municipal authorities who reduced the salary of the firemen had the power to discontinue their services, but in consideration of the agreement by the firemen to accept compensation less than that provided by ordinance they were permitted to retain employment. The Court of Appeals held that this agreement constituted a waiver by the employee of a portion of his salary, that this waiver agreement had been actually executed by the payment of the money agreed on, and that the fireman was estopped from thereafter asserting a claim to the unpaid balance. It was recognized by this court in MacNeill v.Steele, supra, that the Barfield case was sound, and because of the facts there involved did not come under the general rule that a public officer can not waive a part of his salary.

In the present case, if the petitioner, at any time during the period of nearly three years covered by his claim, had refused to abide by the agreement and accept the reduced compensation, the board could have kept its total expenditures at the same level by simply reducing the number of days that the petitioner would be allowed to work, and in that way the board would have discharged its duty in executing the trust imposed by law of properly expending the available funds and keeping expenditures within the assets available. To allow the petitioner, by pretending that he was satisfied with the amount received and thereby obtain additional employment throughout his term of office, and, when he could no longer obtain any employment, then to repudiate his agreement with the board of which he was a member, and recover the unpaid balance of compensation, would give him an advantage unwarranted by law. The only limitations which the law places upon the power of an individual to waive rights which the law has established in his favor are that he must not thereby injure others or affect the public interest. Neither of these grounds is present in the instant case. The rule applicable to the facts is stated in the Code, § 20-1204, as follows: "An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be actuallyexecuted by the payment of the money." (Italics ours.) Here the evidence showed that the petitioner, although entitled to $10 per day for services actually rendered, both as a member of the board and as an individual, agreed that, if permitted to serve as many days as the funds available would pay for, he would accept $7.50 instead of demanding $10 per day as fixed by the statute, and this waiver or agreement was "actually executed by the payment of the money," and hence under the statute estops petitioner from now asserting a claim to the unpaid balance. In TylerCotton-Press Co. v. Chevalier, 56 Ga. 494 (5), it was said: "An executed agreement to receive less than the amount of the debt due, by actual payment of the money agreed upon, can be pleaded as an accord and satisfaction, and will estop the party so receiving the money from asserting his claim to the balance." The Court of Appeals has repeatedly followed the rule just quoted. Pendergrass Banking Co. v. Murphy, 31 Ga. App. 386 (120 S.E. 670); King v. Liberty National Life Insurance Co.,59 Ga. App. 496 (1 S.E.2d 223); Whatley v. Troutman, 60Ga. App, 23 (2 S.E.2d 731); Walbridge v. Jacobs' PharmacyCo., 60 Ga. App. 404 (3 S.E.2d 876).

While neither party has raised the question whether the pleadings are sufficient to enable the defendants to avail themselves of the defense of waiver, yet we think that this question should be considered. It is provided in the Code, § 81-307, that "Under a denial of the allegations in the plaintiff's petition, no other defense is admissible except suchas disproves the plaintiff's cause of action; all other matters in satisfaction or avoidance must be specially pleaded." (Italics ours.) The Court of Appeals held, in Pilgrim Health LifeInsurance Co. v. Jenkins, 47 Ga. App. 441 (3) (170 S.E. 687), that accord and satisfaction or settlement is matter in satisfaction or avoidance which must be specially pleaded. Sustaining the same rule, see 1 C. J. S. 550, § 47. The defendants are relieved from a strict compliance with this general rule, by virtue of averments in the petition together with evidence introduced thereon by the plaintiff and stipulation of facts agreed to by both parties. Paragraph 6 of the petition alleged that "on April 3, 1933, the then members of the Board of Barber Examiners passed a resolution reducing the compensations of petitioner twenty-five per cent, from $10 per day to $7.50 per day for actual services rendered." Paragraph 12 alleged that between April 3, 1933, and November 11, 1935, the petitioner actually served said board as a member thereof for 812 days, for which he received $6090, being compensation at the rate of $7.50 per day. Paragraph 13 alleged "That petitioner did not consent to said reduction of his compensation, and has never consented thereto, and made a protest to the chairman of said board and to the joint-secretary of the State examining boards at the time said resolution was passed on April 3, 1933." The petition thus states a case of payment of less than the amount provided by law, and attempts to avoid the effect of waiver by negativing this fact with the assertion that he did not consent thereto, but protested. When we look at the evidence on these questions it is found that the plaintiff consented to a stipulation of fact showing that on April 3, 1933, he as a member of the board was the author of the motion, which was unanimously adopted by the board, fixing the compensation of the members at $7.50 per day. It is evident that this action of the board resulted from a shortage of funds, because the motion of the plaintiff contains the language "continue with reduced expense accounts according to recent ruling received for the remainder of the year beginning April 5, 1933, working six days per week, provided money is available." An affidavit made by the plaintiff is in evidence; and while not denying that he made the motion before the board, it states that he does not remember, and sets forth, as a ground for avoiding his action on the board and his agreement to accept the reduction in compensation, that at the time it was reported that the Secretary of State had suggested a reduction in compensation, and that the chairman stated that the Governor had the power to oust the members of the board from office if they refused to reduce compensation. These facts constitute neither coercion nor justifiable excuse for relieving the plaintiff from the full effect of his official action as a member of the board in reducing the compensation, or his individual action over a period of three years in making claim only for the reduced amount and accepting payment thereof without complaint. He sought primarily to recover a sum of money, and it was not essential to his action that he plead facts to negative a waiver; but having voluntarily pleaded such facts and having introduced evidence and consented to a stipulation of facts bearing thereon, although disproving portions of his petition, he will not now be permitted to challenge the right of defendants to avail themselves of the defense shown by such pleadings and evidence. The plaintiff could have pleaded merely a case of a claim to unpaid compensation, but instead he pleaded a case showing that the unpaid balance resulted from a resolution of the board and his acceptance of the reduced amount over a period of nearly three years; and his claim to unpaid compensation is based upon a statute that leaves to the judgment of the board the right to determine the quantity of services which the member shall be allowed to render. This court will not disregard these pleadings and this evidence. We follow the rule stated in Saulsbury v. Weaver, 59 Ga. 254 (2), to wit: "Where the plaintiff himself proves the contract sued upon to be one of suretyship on the part of a married woman (one of the defendants in the action), no special plea is requisite to make the evidence available to her defense." The petition attempts to negative waiver. The plaintiff's evidence and evidence agreed to by him shows a waiver. Under these circumstances, as stated in the rule above quoted, "no special plea is requisite to make the evidence available for [the] defense." The judgment granting mandamus absolute was contrary to law and the evidence. Judgment reversed in part, and affirmed in part. All theJustices concur.