Opinion
5 Div. 26.
January 12, 1937. Rehearing Denied February 2, 1937.
Appeal from Circuit Court, Chilton County; Arthur Glover, Judge.
Action in assumpsit by Percy M. Pitts against Chilton County. From a judgment for defendant, plaintiff appeals.
Affirmed.
Certiorari denied by Supreme Court in Pitts v. Chilton County, 233 Ala. 579, 173 So. 95.
From the agreed facts it appears that on March 6, 1933, the court of county commissioners adopted an order or resolution nominating and selecting appellant for the position of county attorney for Chilton county, charged with the duty of advising the court on all questions and legal matters coming before the court, with a salary fixed at $50 per month. During the period from September, 1933, to June, 1934, both inclusive, appellant served as such county attorney, and thereafter duly presented his claim for salary due for such period; but the court of county commissioners failed to enter the allowance, reduction, or disallowance thereof on the minutes.
At the time of the passage of said order or resolution by the court of county commissioners, and during the period for which salary is claimed, appellant was a member of the Legislature of Alabama, having been elected thereto in the general election of 1930 for a term of four years.
This suit was filed to recover the amount of salary claimed to be due by appellant.
Lawrence F. Gerald, of Clanton, for appellant.
Penal statutes will be strictly construed. 59 C.J. 1114; State v. One Black Horse Mule, 207 Ala. 277, 92 So. 548; Anderson v. Birmingham, 205 Ala. 604, 88 So. 900. In the construction of statutes, the legislative intention will always be considered. Street v. Cloe, 207 Ala. 631, 93 So. 591; Thomason v. Court of County Com'rs, 184 Ala. 28, 63 So. 87. Code, § 5024 does not prohibit an attorney who is a member of the Legislature from representing a county or its court of County Commissioners during the time he is such member of the Legislature.
Reynolds Reynolds, of Clanton, for appellee.
A contract entered into by an attorney with a county to serve as county attorney, who at the time is a member of the Legislature, is in violation of Section 5024 of the Code, and is, therefore void and will not support a cause of action for services rendered. Lainhart v. Burr, 49 Fla. 315, 38 So. 711; Mobile County v. Williams, 180 Ala. 639, 61 So. 963; Walker v. Bridgeforth, 9 Ala. App. 257, 62 So. 323; Ensley Motor Co. v. O'Rear, 196 Ala. 481, 71 So. 704; Wright v. Clark, 119 Ohio St. 462, 164 N.E. 512; McGehee v. Lindsay, 6 Ala. 16; 44 C.J. 89; 13 C.J. 434; 2 McQuillin, Min. Corp. (2d Ed.) § 531; 3 McQuillin, § 1354 Corp. (2d Ed.) § 531; Same Cum.Sup. 1934; West Co. v. Berry, 98 Ga. 402, 25 S.E. 508; McGregor v. Logansport, 79 Ind. 166; Fort Wayne v. Rosenthal, 75 Ind. 156, 39 Am. Rep. 127; Op.Atty.Gen. 1932-1934, p. 306; Dwight v. Palmer, 74 Ill. 295; Rhodes v. Marengo County Bank, 205 Ala. 667, 88 So. 850.
The submission of this case is on an agreed statement of facts, which presents the only question necessary for our consideration.
Within the meaning of section 5024 of the Code of 1923, a member of the Legislature from Chilton county, duly elected and qualified as such, is a state officer. 46 Corpus Juris, 926 (6).
Section 5024 of the Code of 1923 is plain and unambiguous. This section prohibits such member of the Legislature during his term of office from taking a contract for services "of the county," and such contract when made is void. Garner v. State, 26 Ala. App. 246, 158 So. 543; Garner v. State, 229 Ala. 600, 158 So. 546; Mobile County v. Williams, Judge, 180 Ala. 639, 61 So. 963.
There can be no doubt that plaintiff's employment was for services to be rendered for the county. Indeed, the minutes of the court of county commissioners and the account filed by plaintiff so indicate, and the bill of exceptions recites the services rendered under the contract made with plaintiff.
It is urged by attorney for appellant in his most persuasive brief, but without citation of authority, that the Legislature did not intend to include in the enactment of this statute contracts made with attorneys for services to be rendered as such to the board of county commissioners in the discharge of their duties as such, and by way of argument we are asked to consider our common knowledge that many county solicitors are members of this and former Legislatures. The fact that others violate the law prohibiting county solicitors from becoming members of the Legislature cannot avail the plaintiff in this case. "Two wrongs never make a right." If there be violations of the law as suggested, the test must come in other ways not here involved.
The judgment of the circuit court is affirmed.
Affirmed.