McHenderson v. Anderson County

59 S.W. 1016, 105 Tenn. 591

• Court: Tennessee Supreme Court
• Decided: November 17, 1900
• Status: Published

Opinion

Wilkes, J.

This is a bill to recover attorneys’ fees from Anderson County for services rendered in bringing a defaulting Trustee to settlement. It is filed by Gr. jVíclíenderson, John B. Holloway and X. Z. Hicks, against the county of Anderson and TJnderwood, its Trustee, and seeks to recover the sum of $3,000. The claim is based upon a suit heretofore brought in the Chancery Court of Anderson County against W. W. Hayes, a defaulting Trustee for the county, and his sureties upon his several bonds, he having held several terms of office as such Trustee. The result of this chancery ’suit was a recovery against the Trustee and his sureties for the sum of $20,036.07, and upon this recovery a lien was declared in this Court for the reasonable fees of complainants. It appears that after the judgment was taken, some concessions upon the amount were made by the county authorities for reasons satisfactory to them, but the greater part of the recovery — to-wit, $16,-000 — was paid to the County Trustee, and was by this bill enjoined in his hands until complainants’ demand should be satisfied.

The injunction was dissolved upon the agreement of the county to issue interest-bearing warrants for the amounts decreed to be due the complainants when judicially ascertained, if the county should be held liable. The county defends upon the grounds hereafter stated:

1. That Mr. Holloway was not employed by the county, and rendered no service in the suit, except such, as he may have voluntarily rendered in aid of his partner, Molienderson.

2. That as to MeHenderson, he was never employed as an individual to prosecute the suit by the county, but, being district attorney-general for-the district in which Anderson County is situated, he performed such services as he did render .as-District Attorney-general, and in his official capacity.

8. That as to complainant X. Z. Hicks, he was not specially employed in the suit by the county, but that he was County Attorney for the county, upon a salary of $150 per annum, and such services as he rendered were in his official capacity, and not as an individual attorney, and that they were compensated for in his regular annual salary.

4. That as to the lien fixed and declared by this Court upon final hearing of the Hayes suit to-cover the reasonable fees of attorneys, it was rendered at the instance of complainants on an ex parte motion, which was not specially directed by the Court or brought to its notice, and that the county had no notice of the same and is not bound thereby.

The county filed an answer setting up these defenses and by agreement the answer was treated as a cross bill for the purpose of setting aside such lien if the Court should so direct.

The Chancellor rendered a judgment in which it was decreed that MoHenderson was entitled to recover $2,1'78.49 in the interest of all the complainants, and that they should settle their respective rights and equities between themselves, and the bill as to complainant Hicks was dismissed without cost. The county appealed. The decree of the Court below proceeded upon the basis that the chairman of the County Court employed McITen-derson to prosecute the suit, and that it was understood he was to employ his partner, Holloway, to assist him, as well as the complainants Hicks, and that the county accepted the services of these attorneys in the prosecution and conduct of the suits.

The Court of Chancery Appeals finds as facts that these attorneys did represent Anderson County throughout the entire litigation with Hayes and his sureties, and were the only attorneys who appeared on its behalf.

That Court further reports the amount of labor done and service performed by each of these attorneys, and that the suits involved great labor, many questions of law, many items of liability; that the case was conducted and prosecuted with great industry, zeal, skill and ability, and to a successful termination, and that the services were reasonably worth the amount allowed by the Chancellor, but that it was a matter of doubt whether the county was liable therefor.

The Court reports that McH’enders on, at the time he brought and prosecuted the suit, was District Attorney-general for the Second Judicial Circuit of the state, in which Anderson County is situated; that he said to Mr. Earnier, the Chairman of the County Court, who had been instructed by the County Court to advise with' him in regard to the JTayes default, that unless it -was desired to indict Hays he had nothing to do with the matter in his official capacity, and that he thought it was the duty of the Chairman to place the matter in the hands of Mr. Toung, back tax collector for Anderson County, or in the hands of an attorney appointed by the Comptroller for that purpose; that under recent statutes, he was relieved from collecting taxes from delinquent Trustees ; that the compensation of revenue agents was fifteen per cent, on the amount collected, and this would compensate the tax attorney for collecting the tax, and the county would *be saved any expenses ; that he advised if any suit was brought it be in the Chancery Court, so that a full and fair settlement could be made and the liability properly apportioned among the different bondsmen; that he had nothing to do with such suits as District Attorney-general, and if the chairman did not desire to put the matter in the hands of the revenue agent, that it be placed in the hands of Mr. Hides, the County Attorney.

The Court of Chancery Appeals reports that the Chairman approved, if he did not originally suggest, bringing the suit in the Chancery Court, as a result of the conference between the Chairman and Mr. McHenderson. ‘That Court also reports that Mr. McHenderson was employed to bring the suit with the understanding that he would associate with him Mr. ITolloway and Mr. Hicks; that Mr. McHenderson understood that he and Mr. Hicks were employed as individuals, and not in any official capacity, and they would receive reasonable compensation for their services; that Mr. McHenderson was to be leading counsel, and that the allowance was to be made to him in his name on behalf of himself, his partner, and his associate, Mr. ITicks. That Court further reports that the several members of the County Court knew of the pendency of the suit, and that the complainants Avere representing the county in the litigation, and Avere alloAved to do so without protest, and the county received the benefit of their sendees.

That Court, hoAveA^er, does not report that the members of the County Court knew that complainants had been employed as individuals, and Avere representing tile county in their individual, and not official, capacities as attorneys.

That Court reports that unless there is some law to prevent complainants from rendering the service as individuals, and to require them to act officially, then the complainants are entitled to receive reasonable compensation.

The Court of Chancery Appeals was of opinion that complainants were entitled to recover, and affirmed the decree of the Chancellor. That Court holds that it is not material that complainants were employed by the Chairman and not the Court, since the members of the County Court knew that the attorneys were rendering the service and did not object.

Further, that the provisions of the statutes to which reference will be hereafter made which define the duties and fix the compensation of the District Attorney for services in regard to revenue collectors, apply only to eases where the defaulting collector is proceeded against by motion in the Circuit Court, and have no application to cases where it is necessary, convenient, or advisable to bring the suit in the Chancery Court, and that it was not one of the official duties of the District Attorney-general to bring or prosecute such suit, especially when the suit involved complicated accounts extending from term to term through a series of years.

We think, under the finding of the Court of Chancery Appeals, it must be held that if the complainants were employed at all in their individual capacity, it was by the Chairman of the County Court, and not by the Court as a body. While it is found that the members of ■the County Court knew that complainants were representing the county in the litigation, it is not 'found that they knew that it was under an employment as individuals by the Chairman, or in any •other way than in an. official capacity and character. "We are of the opinion that the Chairman of the County Court had no authority to employ complainants to represent the county in this litigation as individuals or to agree to pay anything therefor by the county.

Section 660, subsec. 1, Shannons’ compilation, provides that the Chairman. of the County Court shall have power to employ counsel" to defend suits against the county, who shall be entitled to a reasonable fee, to be allowed by the Court trying the case.

This is the extent of the power conferred by statute upon the Chairman of the County Court in ■ regard to employment of counsel, except as hereinafter stated. The authority to employ counsel to prosecute suits for the county . generally rests in the County Court in quarterly session, when it exists at all.

The argument is made that the Chairman of the County Court is the accounting officer for the county, and hence must have implied authority to employ counsel to bring defaulters to settlement, but this reasoning we think is not well founded. The theory and provision of ike law is that while the Chairman is the auditor of the accounts of collectors, he is authorized to call upon the District Attorney for advice, and when there is a dispute, to place the matter in the hands of the District Attorney for adjustment.

But, in addition, we are of the opinion that it was the official duty of the District Attorney to prosecute the suit, and receive for such service the compensation provided b<y statute. This was the cluty of the District Attorney under the code of 1S5S.

The following provisions are contained in the code of IS 5 8 and in the compilation of statutes by Shannon, Code, § 5768: It shall be the duty of each District Attorney: “12. To prosecute all motions against delinquent collectors of public taxes when made, or ordered to be made, by the Comptroller or County Trustee, without- charge therefor.”

“Sec. 670. For any neglect or refusal to .settle his accounts the Comptroller and Judge or Chairman of the County Court shall proceed against the collector and his sureties by motion, which shall not be abated, quashed, or delayed by any want of form or informality in prosecuting the same.”

"56. The word 'collector* includes any person intrusted with the collection of public revenue.” (Shannon, § 67.)

“428. If the Trustee, on going out of office, fails to pay over the balance of revenue in his hands, lie and his sureties shall he liable to judgment, on motion of the District Attorney before the Circuit Court.” (Shannon, § 524.)

“430. If he fail to pay money to those entitled to the same, or neglect to call those to account who ought to pay money into the treasury, whereby the county suffers loss, in either case he and his sureties shall be liable for the sums not collected or paid, on motion before the Circuit Court.” (Shannon, § 526.)

“669. The District Attorney shall have a fee of ten dollars for prosecuting to judgment any delinquent collector of public money and his sureties, or either, to be taxed in the bill of costs and paid by the defendants, and no other fee or commission shall in any case be allowed the District Attorneys for their . services in the collection of the public revenues.” (Shannon, § 962.)

“3964. The compensation of the Attorney-general consists exclusively in the fees of office.”

At the time of the adoption of the code, and down to the passage of the Act of 1815, Chapter 91, the Trustee himself collected no taxes, and was merely the depository of all the county revenue collected by the tax collectors, clerks, and justices and turned over to him by .them, he being’ charged only with the safe-keeping and accounting therefor.

(a) Tinder the code of 1858, therefore, taking all the foregoing provisions together, in case any person intrusted with the collection of public revenue became delinquent and failed to settle his accounts, if the delinquency was as to State revenue, it was the duty of the District Attorney to proceed .against him by motion in the Circuit Court when •directed by the Comptroller (§§670, 3961), and if the delinquency was as to county revenue, to so proceed when directed by the Trustee (§ 3961) or the County Chairman (§ 670), his fees being fixed at $10, -to be taxed up in the costs (§ 669), ■ and if the County Trustee defaulted as to revenue in his hands, he and his sureties were likewise liable on motion by the District Attorney in the Circuit Court (§§ 428, 430.)

(5) By the Acts of 1875, the office of tax collector was abolished, and it was provided that the Trustee should thereafter, in addition to his other duties, collect all taxes levied on property and polls. Acts of 1875, Chapter 91, secs. 1, 2, and 23, pp. 129 and 135; Anderson County v. Hayes, 15 Pickle, 542 at 555.

In other words, the County Trustee himself now also became, under the Act of 1875, a “collector” or “person intrusted with the collection of public revenue,” and in the event of his defalcation and failure to settle his accounts as to revenue so collected, it became the duty of the District Attorney to proceed against him by motion in the Circuit Court at the .instance of the Comptroller in case of defalcation of State revenue, and at the instance of the Connty Chairman in case of defalcation in the connty revenue.

By the Act of 1875 it follows, by necessary implication, that as the Trustee was substituted as to collection of property and poll taxes for the collector, the County Chairman as to all matters of accounting for such taxes, being the officer designated under the code to settle with the Trustee and other collectors of revenue (Code, §§ 517, 660, subsecs. 5, 6), was substituted for the Trustee, and was required to perform all duties in reference to the Trustee that were formerly required of the Trustee toward the tax collector — that is, in case of his defalcation in his collection, to order the' District Attorney to enter motion against him and his sureties in the Circuit Court.

The duties of the District Attorney were in nowise changed or lessened. Before the Acts of 1875 it was his duty to prosecute the delinquent tax collector at the instance of either the county trustee or county chairman; after the Acts of 1875, it was his duty to prosecute the delinquent Trustee for delinquency ’ in ■ collection at the instance of the County Chairman. The statute was not intended to change the former law in any other way than by substituting the Trustee for. the tax collector as the collecting officer, and the County Chairman for the Trustee as the accounting officer.

(c) It being by law the duty of the District Attorney to prosecute the Hayes suit for the fee of $10 fixed bjr the Code, which should have been: taxed up in the costs, the complainants are not entitled to recover for any services they may have-rendered.

“The compensation of the Attorney-general consists exclusively of the fees of office.” (Code, § 3964; Shannon, § 5771.)

“No officer is entitled to "demand or receive fees or other compensation for any services further than is expressly provided by law.” (Code, § 5417; Shannon, § 6350.)

Thus the District Attorney is not entitled to a fee where the defendant is arrested on a peace warrant and bound to keep the peace, and is discharged without trial, there- being no law authorizing such fee (Mooney v. State, 2 Yer., 578), nor to costs as upon a verdict of conviction, where he properly agrees to a verdict of not guilty against the defendant (State v. Bachman, 6 Lea, 649); nor to a fee for “final conviction” where after conviction the judgment is reversed and a nolle prosequi entered. Keys v. State, 7 Lea, 408.

In Mooney v. State, cited above, the Court said: “We have often held that such fees are not given by implication.”

Nor is the clerk of the Supreme Court entitled to the six per cent, authorized by statute to- ■ the clerks of the Circuit Courts on money received by them from delinquent collectors, reported to the ■Comptroller and paid into the State treasury. Baxter v. Comptroller, 14 Lea, 122.

So, the salaried recorder and policeman of a city, invested by law with the jurisdiction and power of Justices and constables, respectively, are not entitled to receive, in addition to sheir salaries, the fees fixed by law for Justices and constables for like services. Johnson v. State, 94 Tenn., 499.

The county is not legally liable to a member of the County Court for such services performed as chairman of a special committee as are paid ■for by the ordinary compensation allowed the Justice of the Peace, even where the services performed were onerous and faithfully performed, and ■upon the reliance of special remuneration. Hope v. Hamilton County, 17 Pickle, 325; Holtzclaw v. Hamilton County, 17 Pickle, 338.

So a back tax attorney cannot retain his fees for sales of land under Chapter 120, Acts of 1895, bid in for the State, out of the State and county revenues in his hands, collected out of ■other delinquents, but must await collection of his reasonable fee out of proceeds of land when sold by the State.

In that case it was said: “It is the settled policy of this State, fixed by statute, and enforced by the decisions of this Court, that no public ■ officer shall receive fees or other compen•sation for any service further than is expressly provided by law.” State v. Murphy, 101 Tenn., 515.

It follows, therefore, that it being by law the duty of the complainant, McHenderson, to prosecute the Hayes suit, he is not entitled to a decree in this cause for the services thus rendered.

It also follows that the other complainants are-not entitled to a decree, either directly or through the complainant, Mclienderson, as, all other questions aside, they are not entitled to recover for services rendered the county which another person,, to-wit: the District Attorney, was under legal obligation to perform.

This principle was settled in the recent case of State v. Spurgeon, in which it was held that the Comptroller, having no power to employ counsel to assist the attorney-general in his duty of prosecuting the State’s civil litigation in the Supreme Court, the attorneys, so employed were not entitled to a lien for. fees for such services- upon the State’s recovery. State v. Spurgeon, 15 Pick., 659.

We are of opinion that it does not matter that the suit was brought in the Chancery Court by bill rather than in the Circuit Court by motion.. The motion is a summary remedy given by statute in • order to more promptly ■ realize the revenue that may be withheld. But it is not the only remedy, and if from the nature and complication of the litigation it may be best or most -convenient that the suit be prosecuted in chancery, it does not absolve the District Attorney from Ms official duty to bring the defaulter to settlement.

The statute which fixes the fee of the District Attorney does not limit it to service rendered in any particular Court' nor to any special proceeding, but applies broadly to any action prosecuting to judgment any delinquent collector of public money and his sureties, and expressly provides that no other fee or commission shall in any case be allowed District Attorneys for their services in the collection of public revenue. Shannon, § 962.

It is true that the Legislature has from time to time, and especially since the .passage of the Acts of 1895, provided a system of collecting back taxes through special agents and attorneys, to be appointed by the Comptroller, ' but it has never repealed the Acts making it the duty of District Attorneys 'to bring defaulting officers to settlement, and that duty still devolves upon them whether performed or neglected. Hor can the fact that District Attorneys have for years failed to comply with the requirements of the law annul the law itself nor relieve them from their duties thereunder. It being the official duty of the District Attorney to bring the delinquent Trustee to settlement, he could only act officially in the matter, and could not be employed as an individual fora stipulated compensation to do that which the law imposed upon him as an official . and for which it fixed the amount of fees.

Speaking specially as to the claim of Mr. Hides, the Court of Chancery Appeals find that, previous to rendering services in this Iiayes case, he had been employed by the Oonnty of Anderson at a fixed salary of $150 per annum, and this amount was due and paid to him during the continuance of the Hayes litigation. It does not .appear that his duties were marked out or limited by any contract or agreement, but that he was employed generally as County Attorney. This being so, it was his official duty to represent the county in its litigation with Hayes and his sureties in connection with the District Attorney-general, and to render such services in an official capacity and under his employment as County Attorney, and the same rule must apply to him as to Gen. McHenderson — that he cannot be employed as an individual to do that which was demanded of him in an official capacity.

It cannot alter the rule of law as to either of these officials that the value of their service was far beyond the compensation provided by statute. This state of affairs frequently occurs with all officials, that in the discharge of their official duties they may be called upon to perforin labor for which the law does not provide adequate compensation, but this does not entitle them to additional compensation', either upon an implied promise or upon an express agreement, which they are not qualified or authorized to make. Public office is taken and held with the emoluments and burdens which the law imposes, and the burdens are or may be far beyond the compensation allowed in many cases. But this gives no valid claim for additional compensation. Hope v. Hamilton County, 17 Pickle, 325; Holtzclaw v. Hamilton County, 17 Pickle, 338.

We are unable to see any valid legal ground upon which a recovery can be had in this ease for either of these attorneys, notwithstanding the able, zealous, and efficient service rendered by them respectively' and collectively. Mr. Holloway can be entitled only through his partner, McIIenderson, and his claim must fail with that of Mclienderson.

It follows that the decree of the Court of Chancery Appeals must be reversed and the bill of complainants dismissed at their cost. The County of Anderson is entitled to the relief sought under its cross bill, and all costs incident to that must also be paid by complainants.