
    Collier v. Montgomery County.
    
      (Nashville.
    
    January 10, 1900.)
    1. Shbrij'E'. Compensation of.
    
    A Sheriff who has contracted with a county to keep all prisoners confined in its jail and workhouse, whether for trial or under workhouse sentence, for a gross sum payable monthly, relinquishing to the county all fees allowed by law for such service, cannot repudiate the contract after it has been observed by the parties for nearly six years, the county, during-that period, having paid the stipulated compensation and received the legal fees, and recover from the county the amount that the fees may have exceeded the compensation paid, upon the ground that both parties, in making the contract, acted upon the belief and misapprehension that the sections of the workhouse law authorizing the contract were constitutional, when, in fact, they were unconstitutional, and have since been so declared. Under such contract the Sheriff secured the care of the workhouse convicts, to which he was not entitled by law without contract, and a sum certain for an uncertainty, and is estopped, having appropriated these benefits, to set up said defense. (Post, pp. 706-718.)
    
    Cases cited: Speck v. State, 7 Bax., 51; State v: Cummins, 99 Tenn., 067.
    ■2. Same. Same.
    
    Where a Sheriff has been allowed less than he is entitled to under the law, for attending on the courts, he may recover the balance by action ag-ainst the county, notwithstanding the fact that -he collected and received the amount allowed. (Post, pp. 717, 718.)
    
    EROM MONTGOMERY.
    Appeal from Chancery Court of Montgomery ■County. J. S. Cribble, Ch.
    
      JNO. E. House, E. F. MaetiN, A. E. Gi-iol-SON for Collier.
    Eobt & Scales, Leech & Savage for County.
   Wilkes, J.

This is a bill to -recover from Montgomery County fees alleged to be due complainant as Sheriff of the county from September, 1892, to September, 1897, and which he alleges he was deprived of by the enforcement by the county of the workhouse system, under the Acts of 1891, and Chap. 155, Acts of 1889, relating specially to a workhouse for Montgomery County. It appears that the jail of Montgomery County was designated as its workhouse under the Acts of 1891 and 1889, referred to, and that a contract or agreement was made by the Sheriff to board and keep all prisoners in the jail and workhouse for a compensation of $65 per month.

The regular fees allowed by law for keeping prisoners, both in the jail and workhouse, were collected by the county and paid into its treasury, and the allegation is that the aggregate amount received by the county from such sources was greatly in excess of the compensation paid 'complainant under the contract during /the six years that complainant filled the office of Sheriff and Jailer.

The suit was not brought until after this agreement between complainant and the county had been largely executed, and the Sheriff had filled two terms and wellnigb filled the third term of office. The allegation is that both complainant and the county were under the belief that the workhouse law of 1891 was constitutional in all its provisions, and acting under this belief the contract was made, the effect and result of which was to deprive complainant of fees to which he was entitled by law.

The bill states that this Court, in November, 1897, declared certain portions of that law unconstitutional and void — that is, in so far as it sought to deprive the Sheriff of his rightful jurisdiction, powers, and functions, and hence the agreement made by him to act as Superintendent of the workhouse, and to keep prisoners committed to it, as well as to the jail, at a stated salary, was not binding, but -was contrary to public policy, and he had a right to disregard the same, and recover the fees allowed by law.

Tie asks for an account to show the amounts collected for jail fees by the county, and which, but for this agreement, would, under the law, have been paid to him, and for a judgment for this sum credited by the amounts which he had received under the agreement.

In other words, he seeks to recover what, by law, he would have been entitled to less the amounts actually collected by him under the agreement. Since the passage of the workhouse law of 1891, and the special Acts relating to the ' work-bouse of Montgomery County, tbe statutes have made a distinction between prisoners wbo are confined awaiting trial, or otherwise held not under sentence, and those who have been convicted and committed to work out as punishment fines and sentences of the Courts.

"The latter class pass under the operation of the workhouse law, the former do not. As to the former, -this Court has held in the case of the State v. Cummins, 15 Pick., 667, that their custody and keep cannot be taken away from the Sheriff, even, although, under the law, he may become also the Superintendent of the workhouse, and the jail may be designated and declared to be such workhouse. In other words, it is optional with the county authorities whether they will use the county jail as a workhouse, when it is so con-, structed as to answer that purpose, as well as that of a place of detention for prisoners not convicted, and it is a matter of agreement and contract whether the Sheriff shall act also as Superintendent of the workhouse, or some one else shall be selected .for that purpose, the preference being given to the Sheriff. Another person than the Sheriff may be selected and employed, however, as Superintendent, and another place may be selected as a workhouse other than the jail, if the county authorities so select. We think it plain that the Sheriff cannot, against his will, be deprived of the custodj of the j ail, so far as it is necessary for the detention of prisoners wlio have, been committed for safe-keeping, or who are under sentence of death, or who are awaiting trial or a transfer to State or other prisons, or who are detained merely "as witnesses; in short, all such prisoners as have not been convicted and sentenced to the workhouse under the provisions of the Acts providing that system. We think it equally clear that the' county may declare the jail a workhouse, and use it as such so far as required for the confinement and punishment of persons convicted and sentenced to it, and as to these the county may contract for their keep and custody with the Sheriff if it can agree with him upon' terms, and if not, then with any other suitable person. This is, however, not to interfere with the Sheriff’s control of the jail for the 'purposes indicated. But this does not fully meet the facts in the present case. Here the county and Sheriff, under a mutual mistake of law, or rather a mutual misapprehension that a law was valid, made a contract for the custody and keep of all prisoners of all classes for a certain compensation per month, the county collecting the fees allowed by law and paying the compensation per month, as agreed upon, to the Sheriff.

When the contract wras made, both the ' county authorities and Sheriff were under the belief that the county could take control of all the prisoners, both those committed to the workhouse after sentence and those committed to jail for detention, and farm them out -by contract for their custody and keep, itself collecting the fees allowed by law. The following features are therefore important in the consideration of the questions involved, to wit: The Sheriff acted under the belief that the law was constitutional, and that under it he could be required to give up the custody of the jail and prisoners unless he could make terms with the county for their retention, and the county acted upon the same belief; there was no compulsion upon the Sheriff to give up the jail entirely, nor the prisoners properly belonging to his custody, otherwise than arose out of the construction of the law.

The contract was, in this sense, willingly made, and has been executed, and the compensation has been paid as agreed upon, and the Sheriff has' acquiesced therein for a number of years and series of terms without in any way questioning the validity of the Act or the right of the county to make the contract.

The bill does not allege that the Sheriff was coerced or misled by the county into surrendering his rights as Sheriff, and the cause being heard on demurrer, the ease presented is simply that he and the county authorities assumed that the provisions of the workhouse law were all valid, and acted under its provisions and contracted with regard to it until the Act was, in the features mentioned, declared invalid, and tbe question is, whether, after the contract has been executed, the compensation ¡laid and received by the Sheriff, he can challenge the validity of the Act and disaf-firm the contract as made. The Court of Chancery Appeals was of opinion that he could not, and that such disaffirmance was forbidden by prin-ples of sound public policy.

In the case of Speck v. The State, 7 Bax., 51, this Court said: .“When nothing appears on the face of an Act showing its invalidity, it is regarded prima facie as valid. Respect for the Legislature, therefore, concurs with well-estah-lished principles of law in the conclusion that such an Act is not void, but voidable only, and it follows as a necessary legal inference from this position that the ground of avoidance for unconstitutionality can be taken advantage of by those only who have a legal right to question the validity of the Act, and ' not by strangers,” citing Cooley’s Constitutional Limitations, 164. IVIr. Cooley says: “There are cases when a law, in its application to particular facts, must be sustained, because the party who makes objection, has, by prior acts precluded himself from being heard against it; and when a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection and to consent to such action as would be invalid if taken against his will.” Cooley’s Constitutional Lim., 216.

It may be said that there is a distinction between cases where a citizen assents to the invasion of his private ' property rights tinder an invalid Act and where a public officer submits to such Act which deprives him of some of his functions and emoluments, but if there is any valid difference it can only be based on considerations of public policy, which would prohibit an official from submitting to an invalid Act, and would require him to test all Acts which affect his official duties or prerogatives before submitting to or acting under the same. On the other hand, there are sound .reasons of public policy why this officer, who has acted under a statute as a valid one, and contracted with reference to it, and received the compensation he was entitled to under his contract, should not, after it is executed, be allowed to uproot the agreement and acts under it, to the inconvenience and detriment of the county authorities with whom he has contracted. The contract is based upon a valid consideration, to wit, the keep of the workhouse prisoners, to which the complainant would not have been entitled except upon an agreement entered into with the county authorities.

It . is insisted that in this case the complainant is not asking to do an inequitable thing, but is proffering to return all he -has received under the contract before requiring the county to pay him the amount he would have been entitled to under the law. This, however, is more the appearance of doing equity than the actual doing of it. Complainant is now fully aware of the fact that the fees allowed by law will exceed the compensation paid him under the contract, a fact which could not have been, known when he entered into the agreement, and his proposition is simply to account, and credit the amounts due him by the amounts he has received under the contract, and be allowed to receive the balance after the result of such accounting becomes apparent. It is hardly to be assumed that if the balance of accounts was in favor of the county, complainant would be seeking to have such account in order that he might refund, so that he occupies the attitude of executing the contract and receiving compensation thereunder, and after it has been executed, and he can see that his compensation under the law would have been greater than under the contract, he seeks to recover under the law, accounting for what he has received under the contract. But' it is evident that for the keep of the workhouse prisoners the county may have been . able to make a contract for much lower rates than was made with complainant, and the price at which complainant was willing to keep the prisoners as a whole, and which . the county would have been willing to pay for such service, is no criterion of the contract it might have made for its workhouse prisoners alone.

In Black on Constitutional Law, Sec. 5, it is said: “In a country governed by a written Constitution, which is of supreme power over the lawmaking power, and to which all ordinary legislation must bend, an unconstitutional law is void and of no effect, and, in fact, is not law at all, yet, so long as it stands on the statute book unrepealed, it will have the presumptive force of law', unless the proper Courts have pronounced its invalidity.” And, again: “.Persons mav be estopped from denying the constitutionality of a statute by participating in procuring its passage, ky acquiescing in it after its passage, or by accepting benefits under it, although it may be invalid as to all other persons. And an individual has no right to complain that a statute is unconstitutional after he has endeavored to take benefits under it to the injury of others.” .Black on Constitutional Law, Sec. 35, citing Ferguson v. Landum, 5 Bush (Ky.), 230; Hansford v. Barbour, 3 A. K. Marsh. (Ky.), 515.

In the case of People v. Bunker, 70 Cal., 212, it is said an officer who has acted and received money under an Act cannot contest its constitutionality.

Again: “One who has accepted an office having. at least a potential existence, and has received the emoluments of it, is estopped to show to his own advantage that the office bad never been legally created because it was not done in a proper mode, as by ordinance.5’ 30 L. R. A., 409. See in accord in principle with this ruling, and more or less applicable, Ill. Central R. R. v. King, 13 Southern Rep., 824; State v. Board Police Com., 28 At. Rep., 311; Ayers v. Newark, 6 At. Rep., 659; Spokane Co. v. Allen et al., 37 Pac. Rep., 428; Dow v. Electric Co., 31 N. E. Rep., 22 (N. H.); L. & N. R. R. Co. v. Alexander, 37 S. W. Rep., 981; Ran v. City of Little Rock, 34 Ark., 303; Sessums v. Botts, 34 Tex., 335.

In an unreported case, of C. W. Staten v. Montgomery Co. (oral), the validity of the Act of 1SS3, Chapter 111, was questioned upon constitutional objections, and the Act was held invalid because of a defective title. This Act took out of' the control of the Sheriff the jail of Montgomery County. This Court held the Act unconstitutional, but decreed, further, that as the Sheriff had submitted to the same, he could not recover fees as Sheriff except from the time he made demand for the jail. In reply to this it is said that in that case, the Sheriff being out of possession, it was held that his right to recover would be limited to the time he made such demand, but in the present ease, the Sheriff being in possession all the time, no demand was necessary, and he should be allowed fees back to the date when the contract was made.

But tbis reply, we think, while quite ingenious, is unsound, since the complainant was not only out of possession as Sheriff, but in possession under the contract, and was not asserting at any time a right to conduct the jail under the law and as Sheriff.

We are not unmindful of the trend of modern decisions to the effect that mistake of law will, in many cases, be relieved against, especially when the mistake is mutual, nor can we ignore the very able presentation of complainant’s case by his counsel, and the number of authorities cited by them. We have not time to comment on each of these cases. It is sufficient to say that they support the doctrine laid down by the Supreme Court of the United ' States in Norton v. Shelby County, 118 U. S., book 30, pages 425-454, as to the want of force and effect of an unconstitutional law. But we think the present case stands upon a different footing from the many cases cited, in the features that complainant did not simply acquiesce in and submit to this Act, but went a step further, and contracted in view of it and executed the contract and received compensation thereunder, until now it would be inequitable to require an accounting, and impracticable to obtain the data from which the account could be stated. This difficulty is not avoided by the proposition of the complainant to credit the amounts due him under the law by the compensation he received under the contract, because it is evident that the county, if it had been providing alone for its workhouse hands, would, in all probability, have made different terms for their keep. If the complainant had been forced to relinquish the jail, and his fees as to that alone were involved, this Court would feel constrained to order the account, no matter how difficult the accounting must be, but here there was a contract which consolidated the jail and workhouse force, and fixed an aggregate compensation for both together, and this is a circumstance which must be given due weight in an effort now to overhaul the transactions of a series of years and recast the account when it is practically impossible to obtain the necessary data. And this distinction is still further illustrated by our holding, which we do, that the Sheriff is entitled to the additional compensation of fifty cents per day for attendance upon the Courts which is sued for in this case. This is in accord with the holding of this Court in the case of Jones v. Burdett and the Justices (oral), decided at December term, 1896, at Knoxville, construing the several Acts relating thereto, and was based upon the theory that the Sheriff had 'simply not received his entire compensation, as allowed by law, but only a part of it, for specific services rendered under a valid constitutional law, but there was no contract to remit the balance, and only a silent and temporary submission to the statute as then construed.

We do not, ■ by this ruling, intend to hold that a Sheriff, or other officer, may farm out or bargain away his lawful fees to a third person, or even remit them himself, when it is a simple case of such attempted action, but the present case, we think, is different in its principles and policies to the one presented under such a state of facts. We are of opinion, therefore, that the decree of the Court of Chancery Appeals is correct, and it is affirmed. The' holding by that Court was that complainant was entitled to the additional compensation of fifty cents per day for attendance upon the Courts, but was not entitled to set aside the contract for the keep and custody of prisoners as prayed for.  