State Ex Rel. Hyland v. Baumhauer

12 So. 2d 326, 244 Ala. 1, 1942 Ala. LEXIS 341
CourtSupreme Court of Alabama
DecidedOctober 20, 1942
Docket1 Div. 416, 417.
StatusPublished
Cited by24 cases

This text of 12 So. 2d 326 (State Ex Rel. Hyland v. Baumhauer) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Hyland v. Baumhauer, 12 So. 2d 326, 244 Ala. 1, 1942 Ala. LEXIS 341 (Ala. 1942).

Opinion

*6 FOSTER, Justice.

1. In answer to your first inquiry, we agree with you that the Act passed over the Governor’s veto May 26, 1931, to which you refer in that inquiry is a local act under section 110, Constitution, since it is a designation of Mobile in substance as the only city to which it may ever apply, *7 and is therefore subject to section 106, Constitution, if it is not included in section 104(18). Whether it violates section 104(18) is not now considered. Mobile County v. State ex rel. Cammack, 240 Ala. 37, 197 So. 6.

The provisions of this Act to the extent that they appear in the Code of 1940, Title 62, section 461, are made effectual by the adoption of the Code as of May 31, 1941. Dillon v. Hamilton, 230 Ala. 310, 160 So. 708; Brandon v. State, 233 Ala. 1, 173 So. 238.

2. Your second inquiry is divided into subsections, and each will be treated as there set forth. It relates to Act No. 441, General Acts (Regular Session) 1931, page 538 (see, Code of 1940, Title 62, section 460), which became a law under section 125, Constitution, on July 22, 1931, and provides that the city controlled by it “shall appoint the necessary number of firemen who -have had as much as one year’s experience as firemen at a salary of $1440.00 per annum. * * * [They] shall hold office at the will of such city governing body,” and shall be paid out of the general fund of the city.

An answer to the several features of your second inquiry involves a discussion of principles of law which we will undertake before answering each separately.

When there is no question but that the position held by one was a public office and no contention that it was merely a public employment, we have held that having performed the official service, he is entitled to the compensation provided by law though he had agreed to take less, and though he accepted less in full satisfaction of his claim. Downs v. City of Birmingham, 240 Ala. 177, 198 So. 231(28); Jeffers v. Wharton, 240 Ala. 21, 197 So. 358; Hamilton v. Edmundson, 235 Ala. 97, 177 So. 743. See Robertson v. Robinson, 65 Ala. 610, 39 Am.Rep. 17; Crutcher v. Johnson County, Tex.Civ.App., 79 S.W.2d 932; Altenberg v. City of Superior, 228 Wis. 372, 280 N.W. 342, 118 A.L.R. 1458.

• The fact that the tenure of office is not fixed by law, but is subject to the will of the judge who appoints him does not seem to be controlling in respect to this question, as demonstrated in Jeffers v. Wharton, supra. The officer there in question was the clerk of -an inferior court of Ensley, appointed by the judge and holding office at his will.

The reason for the rule in Robertson v. Robinson, supra, is said to be that it “concerns a place of public trust, in which the public have high interests, involving the performance of public duties.” And in Montgomery v. State, 107 Ala. 372, 381, 18 So. 157, 159, it is said that an “ ‘office’ implies a delegation of a portion of the sovereign power, and the possession of it by the person filling the office * * *. [Such power is] a portion belonging sometimes to one of the three great departments, and sometimes to another. Still, it is a legal power, which may be rightfully exercised, and, in its effects, will bind the rights of others, and be subject to revision and correction only according to the standing laws of the state. An employment, merely, has none of these distinguishing features.” See, Lacy v. State, 13 Ala.App. 212, 226, 227, 68 So. 706.

And in Harrington v. State, 200 Ala. 480, 76 So. 422, 423, it is pointed out that “when we speak of a public officer as a state, county, or municipal officer, we usually mean a person who, by lawful authority, has been invested with a part of the sovereign functions of government.” And that sometimes a person so invested has become an officer of a board or institution rather than of the State, so as to be unaffected by section 281, Constitution, citing State v. Sanders, 187 Ala. 79, 65 So. 378, L.R.A.1915A., 295. See, also, Hard v. State ex rel. Baker, 228 Ala. 517, 154 So. 77.

We have often been concerned with the elements of a public office in respect to decreasing or increasing his salary under section 281, Constitution. See, Funderburk v. Oliver, 224 Ala. 301, 140 So. 370; Yielding v. McCombs, 238 Ala. 635, 193 So. 169.

And the application of the impeachment features of the Constitution (section 175). See, Cooper v. State, 226 Ala. 288(7), 147 So. 432; Touart v. State, 173 Ala. 453, 56 So. 211; Bradford v. State, 226 Ala. 342, 147 So. 182; Williams v. State, 197 Ala. 40, 72 So. 330, Ann.Cas.1918D, 869.

It has also been held that a fireman is not an “officer” under sections 97 and 98, Constitution, prohibiting payment of an officer’s salary after his death and retirement of an officer on pay, since he is not vested with a part of the sovereignty of the State. Cobbs v. Home Ins. Co., 18 Ala.App. 206, 91 So. 627, certiorari denied 207 Ala. 712, 91 So. 922.

*8 The question has also received consideration under other aspects of the law. See Scruggs v. State, 111 Ala. 60, 20 So. 642.

Our problem is not strictly one of whether the person in question is an officer as defined by some of the cases for certain purposes, but whether a fireman of a city fills a place of public trust, involving a performance of public duties which are a part of the sovereignty of the State or city. It is such a person who is prohibited by our public policy to trade and traffic in and about the compensation fixed by law.

A fire department, when organized and functioning, is performing a governmental rather than a proprietary function. Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507. But there is no legislative duty on the part of a city to maintain one. It is a right permitted by law. Code of 1940, Title 37, section 450.

There is no law which creates an office or an employment nor prescribes any duties of a fireman nor of a city in respect to a fire department. The Act here applicable to Mobile does neither. It leaves the whole matter of fire protection to the city, including the number of firemen and their term of service. Under Code of 1940, Title 37, section 407, a city may provide for a chief of the fire department. We are not here dealing with a chief thus authorized nor the nature of his duties.

The duties of a fireman are of an important public sort, but there is vested in such service no element of trusteeship possessing an ingredient of sovereignty. He handles no public funds, and discharges no duty which sovereignty is bound by law to discharge. He is not a public officer as ordinarily defined. 42 Amer.Jur. 882. § 4.

We are called upon to declare a principle of public policy which would prohibit the city and firemen from agreeing in time of financial stress to a reduction in salary for the future from that fixed by the Act rather than to have a reduction in the number of firemen. It was in the power and discretion of the city to reduce the number. The city may have been unable to pay to the existing number the salary prescribed. The statute in question could not force the city to exceed the debt limit of the Constitution. Section 225.

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12 So. 2d 326, 244 Ala. 1, 1942 Ala. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hyland-v-baumhauer-ala-1942.