Opinion
No. 27030.
April 23, 1928. Suggestion of Error Overruled May 14, 1928.
LIMITATION OF ACTIONS. Six-year statute of limitation held applicable to claim of county clerk for balance of salary alleged to be due him ( Hemingway's Code 1927, section 2635).
Six-year statute of limitation held applicable to claim of county clerk for balance alleged to be due him as salary as such county clerk, whether or not claim be considered one as on implied contract, since, if so, promise to pay is a promise the terms of which are provable by writing embodied in statute fixing compensation.
APPEAL from circuit court of De Soto county; HON. GREEK L. RICE, Judge.
R.L. Dabney, for appellant.
The counsel for the claimant in this case dwelt much took great comfort from the holding that no contractual on Swann v. Buck, 40 Miss. 168, in the court below, and relation existed between the claimant and the county, and hence the claim could not be an "account," in the sense of sec. 2543, Hemingway's Code 1917. An answer to this reasoning is, that in that case the district attorney went into office by virtue of his election thereto, and upon taking the oath of office; while in the case at bar the claimant had to do more than be elected circuit clerk and take the oath of office; in fact, he could not take the oath of office until he had entered into bond. In all penal bonds there must be a party or parties of the first part, and parties of the second part. The officer being the party of the first part and the state the party of the second part, how can it be said there was no contractual relation between them? Sec. 2460, Hemingway's Code 1927, expressly provides that "all statutes of limitations shall run in favor of the counties of the state" and it became the duty of the board of supervisors to plead the three-year statute. Individuals may waive the statutes of limitation, but fiduciaries may not. I am not unaware of the two opinions in Madison County v. Collier, 79 Miss. 220; 87 Miss. 204. I confess that my legal curiosity is excited, to know how the former case came to be overruled; but be that as it may in the second case, Judge TERRALL, speaking for the court, says: "An examination of Code 1892, chapter 83, on limitations of actions, will disclose the information that the claim here sued for is governed by the limitation of either three or six years. Section 7237 makes six years the limitation of all actions for which no other period is prescribed, and section 2739 reads: `Actions on open account . . . shall be commenced within three years next after the cause of such action accrued, and not thereafter' . . . because it does not arise out of a contract of any sort, it being long settled in this state by the decision in Swann v. Buck, 40 Miss. 268, that the fees and salaries allowed to officers do not arise from contract." No other authority is cited, nor is it made manifest how the opinion in the above-mentioned case (2d case) came to be reported six years after the opinion in 79 Miss., which holds squarely that the three-year statute does apply. In view of the fact I respectfully submit that the questions here presented at least call for a reconsideration of the Swann-Buck case, that the lawyers of the state may know just what part of the Swann-Buck case is law, and what part not law.
In Moore v. Tunica County, 143 Miss. 821, nor in the case of Claiborne County v. Morehead, 145 Miss. 867, is the question of limitation of actions raised. The Moore case simply holds that the clerk's collection and retention of fees collected by him, as clerk did not estop him from claiming the difference between the amount of such fees, and the salary prescribed by the Acts of 1920; while the last-named case follows the reasoning of the Moore case, and applies to deputy sheriffs.
H.G. Johnston, for appellee.
The case at bar is governed by the six-year statute of limitations. State v. S. M., 26 Miss. 47. In this case the supreme court held that the compensation of a public official was not based upon contract. In the case of Swan v. Buck, 40 Miss. 268, the court held the same principle of law to be good. The latter case was followed in the case of Madison Co. v. Collier, 87 Miss. 204, 30 So. 610. The appellant contends that the three-year statute, or sec. 2637, Hemingway's Code 1927, applies for the reason the claim in the case at bar is an "open account." Our court, in Madison Co. v. Collier, 87 Miss. 204, defined an account by quoting 2 Am. Eng. Ency. Law (2 Ed.), 434. "An account is a written statement of pecuniary transactions, a detailed statement of demands in the nature of debt and credit between parties arising out of contract or some fiduciary relation." There being no contractual relations existing between the parties in the case at bar, therefore, the three-year statute cannot apply, as the claim mentioned herein is certainly not an open account, as defined by the court in Madison County v. Collier, supra. When we remember the principles established by the court in the early cases of State v. S. M. and Swan v. Buck, supra, the law being as stated, the case at bar can be governed by no other statute than that of six years or sec. 2635, Hemingway's Code 1927.
R.L. Dabney, in reply, for appellant.
Since the filing of my original brief in this cause the supreme court of the United States has handed down its opinion in Robertson v. Miller. As that opinion is directly in line with the contention raised by my fifth assignment of error, in the case at bar, I am taking the liberty of directing the court's attention to the rule announced by the United States supreme court in the Robertson-Miller case; particularly to that part of the opinion which declares, with emphasis, that a contractual relation does exist between a public officer and the government under which he serves, to the extent that there is an implied contract under which the officer can recover. See Fisk v. Police Jury of Jefferson Parish, 116 U.S. 131. Since the opinion in the Robertson-Miller case I find that I am supported by "The highest court in the land," in my contention in my original brief, i.e., that recovery by a public officer for earning fees or salary is on an implied contract, and that, therefore, the three-year statute of limitations applies in the case at bar.
Argued orally by R.L. Dabney, for appellant, and by H.G. Johnston, for appellee.
The appellee, W.F. Wood, was regularly elected and qualified as circuit clerk of De Soto county, for the term beginning the first Monday of January, 1920, and ending on the first Monday of January, 1924. At the October, 1927, meeting of the board of supervisors of the county, the appellee filed his claim against the county for a balance alleged to be due him as circuit clerk of said county from April 1, 1922, to January 8, 1924, under chapter 122, Laws of 1920, after crediting the county with all fees collected by him during that period. The board rejected the claim, and an appeal was prosecuted to the circuit court. In the circuit court the county, through its attorney, filed a motion to affirm the judgment of the board of supervisors on the ground that the appellee's account or claim was barred by the three-year statute of limitation (Hemingway's Code 1927, section 2637). This motion was overruled, and a judgment was entered against the county for the full amount of the claim, and from this judgment the county appealed to this court.
The appellant assigns several errors of the trial court, but the only one of sufficient importance to call for a discussion is based upon the action of the court in holding that the six (Hemingway's Code 1927, section 2635) and not the three-year statute of limitation applies to this claim.
In the case of Madison County v. Collier, 87 Miss. 204, 30 So. 610, this court held that the fees and salaries allowed to officers do not arise from contract, and that the six-year statute of limitation applies to claims for such fees or salaries. Whether we now follow and apply the doctrine of that case or whether we adopt and apply the doctrine of the United States supreme court as expressed in the recent case of Robertson v. Miller, 48 S.Ct. 266, 72 L.Ed. ___, decided February 20, 1928, that, "after services have been rendered by a public officer under a law specifying his compensation, there arises an implied contract under which he is entitled to have the amount so fixed," the conclusion reached must be the same. The claim or action therefor is not upon an implied contract provable by parol, but is one provable by a writing. The promise to pay is implied by law after the services have been rendered by a public officer, but it is a promise the terms of which are provable by a writing embodied in the statute fixing the compensation which will be paid upon the performance of the services by officer. Washington v. Soria, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555. We conclude, therefore, that the six-year statute of limitation applies to this claim, and that the judgment of the court below is correct.
Affirmed.