#### TOWN OF CAROLINA BEACH v. NORMAN L. MINTZ and NATIONAL SURETY CORPORATION.

(Filed 15 December, 1937.)

1. Municipal Corporations § lid — In action for misfeasance, officer may not challenge constitutionality of statute under which he was elected.

A person accepting office may not challenge the constitutionality of the statute under which, he was elected in an action against him for official misconduct, or in an action to recover money received by him by virtue of his office, even though the statute under which he was elected is unconstitutional in prescribing ownership of property as a qualification of electors.

2. Municipal Corporations § llg—

A municipal officer is not entitled to receive any compensation for the performance of his duties as prescribed by statute in excess of the compensation stipulated in the statute.

3. Same: Contracts § 7f—

The commissioners of a town may not lawfully elect one of their number clerk of the town, and contract to pay him for his services as such clerk, since such election and contract are void as being against public policy, nor may he claim compensation for acting as clerk upon the principal of quantum, meruit.

4. Municipal Corporations § lid: Principal and Surety § 5a — Officer and surety are liable for sums received by officer in excess of salary.

Sums of money received by a municipal commissioner in excess of his compensation as fixed by statute may be recovered by the municipality in an action against him and his bondsman, nor may recovery be defeated upon the ground that he was elected clerk by the board of commissioners, since such contract is void, nor upon the principal of quantum meruit for services rendered as such clerk.

Appeal by defendants from Grady, J., at February Term, 1937, of New HaNOvee. No error.

Tbe plaintiff is a municipal corporation duly created, organized, and existing under and by virtue of tbe laws of tbe State of North Carolina.

On or about,25 April, 1933, tbe defendant Norman L. Mintz was duly elected commissioner of finance of tbe plaintiff, and pursuant to said election served as sucb commissioner for si term of two years, beginning on or about 1 May, 1933, and ending on or about 1 May, 1935.

Tbe defendant National Surety Corporation was tbe surety on tbe official bond of tbe defendant Norman L. Mintz, commissioner of finance of tbe plaintiff from 16 February, 1934, until tbe expiration of bis term. „

Tbis is an action to recover tbe sum of $807.75, wbicb was paid by tbe plaintiff to tbe defendant Norman L. Mintz on vouchers wbicb *579were issued during bis term of office and wbicb were approved by bim as commissioner of finance of tbe plaintiff. Tbe said sum of $807.75 was paid by tbe plaintiff to tbe said defendant in addition to bis lawful salary of $25.00 per annum as fixed by statute. Of said sum $417.80 was paid by plaintiff to said defendant and was received by bim while bis official bond, in tbe sum of $2,000, witb tbe defendant National Surety Corporation as surety, was in force.

It is alleged in tbe complaint tbat tbe payment by tbe plaintiff to tbe defendant Norman L. Mintz of tbe sum of $807.75 during bis term of office as commissioner of finance of tbe plaintiff, in addition to bis lawful salary as fixed by statute, was unlawful, and tbat tbe receipt of said sum by tbe said defendant was in violation of bis official duty and in breach of bis official bond. This allegation i's denied in tbe answer.

In their answer the defendants admit tbat tbe defendant Norman L. Mintz received tbe sum of $807.75, pursuant to vouchers issued to bim during bis term of office as commissioner of finance of tbe plaintiff, and approved by bim as such commissioner, and tbat said sum was paid to tbe said defendant in addition to bis lawful salary as commissioner of finance of tbe plaintiff. They allege tbat said sum of $807.75 was paid by plaintiff to said defendant for services rendered to plaintiff by bim, and for expenses incurred by bim in behalf of tbe plaintiff while be was acting as clerk of tbe plaintiff, and tbat for tbat reason said payment was lawful.

Tbe defendants further allege in their answer tbat tbe defendant Norman L. Mintz, while acting as clerk of tbe plaintiff during bis term of office as commissioner of finance, rendered services to tbe plaintiff, and incurred expenses in its behalf in tbe sum of $819.65, and tbat said sum has not been paid by tbe plaintiff to tbe said defendant. Tbe defendant Norman L. Mintz prays judgment in this action tbat be recover of tbe plaintiff the sum of $819.65 as a counterclaim against tbe plaintiff.

At tbe trial, issues were submitted to tbe jury as follows :

“1. What amount of money in salary and commissions was paid to tbe defendant Norman L. Mintz by the plaintiff, town of Carolina Beach, and received by bim over and above the salary of $25.00 per annum allowed bim as commissioner of finance under tbe charter of the said town ? Answer:.

“2. What amount, if any, is the defendant Norman L. Mintz entitled to recover of tbe plaintiff, town of Carolina Beach, for services performed and moneys expended for tbe use and benefit of tbe plaintiff, as alleged in bis cross bill and counterclaim ? Answer:.

“3. In what amount, if any, are tbe defendants Norman L. Mintz, as principal, and National Surety Company, as surety on tbe official bond *580of Norman L. Mintz as commissioner of finance of tbe plaintiff, indebted to tbe plaintiff? Answer:.”

Pursuant to instructions of tbe court in its charge, tbe jury answered the first issue “$807.75,” tbe second issue “Nothing,”' and the third issuo “$417.80.”

From judgment in accordance with tbe verdict the defendants appealed to tbe Supreme Court, assigning errors in the trial.

Kellum & Humphrey for plaintiff.

John D. Bellamy & Sons and Isaac 0. Wright for defendants.

CoNNOR, J.

Cb. 117, Private Laws of North Carolina, 1925, is entitled “An act to incorporate tbe Town of Carolina Beach in New Hanover County, State of North Carolina.” This act in all its essential provisions is now and has been since 6 March, 1925, in full force and effect. By virtue of these provisions the plaintiff is a municipal corporation, duly created, organized, and existing under the laws of this State. Only the provision in sec. 4 of said act, which is reenacted by ch. 78, Private Laws of North Carolina, 1929, to the effect that “all persons owning property within the corporate limits of the town of Carolina Beach shall constitute the electors of the town of Carolina Beach, and be entitled to vote in any election for the officers of said town,” was challenged by the plaintiff in Smith v. Carolina Beach, 206 N. C., 834, 175 S. E., 313. It was held in that case that the said provision is void, but that officers of said town elected in accordance with said provision, and who had duly qualified for the performance of the duties of their respective offices, were at least de facto officers of the town of Carolina Beach, and that for that reason the validity of their official acts could not be successfully challenged by the plaintiff, a resident of said town. In the instant case the defendant Norman L. Mintz, who accepted the office of commissioner of finance of said town, and performed the duties of said office for a term of two years, receiving the salary fixed by statute for the commissioner of finance, will not be heard to challenge the validity of his election and his right to hold said office.

One who has accepted an office to which he has been elected under a statute is not entitled to plead that such statute is unconstitutional in an action against him for official misconduct, or in an action to recover money received by him by virtue of said office, 12 C. J., p. 770, sec. 193, and cases cited in support of the text. Thus it was held by this Court in Board of Education v. Kenan, 112 N. C., 566, 17 S. E., 485, that a sheriff in an action to compel the payment of money collected by him under a tax levied for school purposes, and in his hands, cannot defend *581tbe action by alleging tbe invalidity of tbe statute under which tbe tax was levied and collected.

Sec. 6 of cli. 117, Private Laws of North Carolina, 1925, is as follows:

> “The commissioner of finance shall be the purchasing agent of the board of commissioners of the town and all property, supplies and material of every kind whatsoever shall, upon the order of the board of commissioners, be purchased by him, and when so purchased by him the bill therefor shall be submitted to and approved by the board of commissioners before warrants are issued therefor; when such warrants are issued they shall be signed by the said commissioner and countersigned by some other person designated by the board of commissioners; he shall be collector of all taxes; he shall collect all water rents; he shall issue licenses or permits as provided by law, ordinance, or resolution adopted by the board of commissioners, or, in the absence or inability of any commissioner to act, he shall exercise temporary supervision over the department assigned to said commissioner; subject, however, to the power of the board of commissioners to substitute some one else temporarily to perform any of such duties; he shall have control of all employees not by law, ordinance, or resolution of the board of commissioners apportioned or assigned to some other department; he shall have charge of and supervision over all accounts and records of the town, and accounts of all officers, agents, and departments required by law or by the board of commissioners to be kept or made; he shall regularly, at least once in three (3) months, inspect or superintend inspection of all records or accounts required to be kept in any of the offices or departments of the city, and shall cause proper accounts and records to be kept, and proper reports to be made, and shall, acting for the board of commissioners, audit or cause to be audited by an expert accountant, if he deem it necessary, apnually, the accounts of every officer or employee who does or may receive or disburse money, and he shall publish or cause to be published annually statements showing the financial condition of the town; he shall examine or cause to be examined all accounts, pay rolls and claims before they are acted on or allowed, unless otherwise provided by law or by order of the board of commissioners; he shall collect all license fees, franchise taxes, rentals, and other moneys which may be due or become due to the town; he shall report the failure on the part of any person, firm, or corporation to pay money due the town; he shall report to the board of commissioners any failure on the part of any person, firm, or corporation to make such reports as are required by law, ordinance, or order of the board of commissioners to be made, and shall make such recommendations with reference thereto as he may deem proper. The assessor, auditor, town clerk, town attorney, and their respective officers of departments, and *582all employees therein, and all bookkeepers and accountants are apportioned and assigned to the department of finance, and shall be under the direction and supervision of the commissioner hereof. He shall do and perform any and all services ordered by the hoard not herein expressly conferred upon some other department.”

> The duties of the commissioner of public works and of the commissioner of public safety are specifically set out in sees. 7 and 8 of the act.

Sec. 13 of the act is as follows:

> “Sec. 13. Salaries. The mayor and commissioners shall have offices at the town hall. The compensation of the mayor and commissioners shall be as follows: Mayor and commissioner of public safety, twenty-five ($25.00) dollars per annum. Commissioner of public works and commissioner of finance, twenty-five ($25.00) dollars each per annum. Salaries shall he paid in equal monthly installments.”

It is manifest that, by virtue of the provisions of sec. 13 of the act by which the plaintiff was created a municipal corporation, no sum in excess of twenty-five dollars per annum can be lawfully paid by the town of Carolina Beach to the commissioner of finance of said town as a salary for the performance by him of his duties as prescribed by sec. 6 of the act. Any sum so paid by the town or so received by a person holding the office of commissioner of finance of said town can be recovered of such person, and the surety on his official bond, by the town of Carolina Beach by an action begun and prosecuted for that purpose in a court of competent jurisdiction. See Comrs. of Brunswick v. Walker, 203 N. C., 505, 166 S. E., 385.

In the instant case the defendants contend that the sum of $807.75 was paid by the plaintiff to the defendant Norman L. Mintz for services rendered by him to the town of Carolina Beach and for expenses incurred by him in its behalf while acting as clerk of said town, pursuant to his election to that office by the board of commissioners of said town, and that for this reason said sum was lawfully paid by the plaintiff to the said defendant. This contention cannot be sustained.

Conceding that there was evidence at the trial of this action tending to show that the hoard of commissioners of the town of Carolina Beach elected Norman L. Mintz clerk of said town during his term of office as commissioner of finance of'said town, and contracted to pay him for his services as such clerk, wé must hold, that such election and such contract were void as against public policy. See Snipes v. Winston, 126 N. C., 374, 35 S. E., 610. In that case it was held by this Court that the election by a board of aldermen of one of its members as “street boss” at a fixed salary was void as against public policy, and that plaintiff could not recover of the city on said contract for services rendered by him pursuant to such election.

*583Tbe principle wbicb supports tbe instructions by tbe court to tbe jury at tbe trial of tbis action is stated by Clark, C. J., in Davidson v. Guilford, 152 N. C., 436, 67 S. E., 918, as follows:

> “Independently of any statute or precedent, upon tbe general principles of law and morality, a member of an official board cannot contract with tbe body of wbicb be is a member. To permit it would open tbe door wide to fraud and corruption'. Tbe other members of tbe board in allowing compensation tbus to one of its members would be aware tbat each of tbem in time might receive contracts and good compensation and tbus public office, instead of being a public trust, would become, in tbe language of tbe day, ‘a. private snap.’ ”

Tbe defendant Norman L. Mintz has no right to retain any sum paid to him by tbe plaintiff during bis term of office as commissioner of finance of tbe town of Carolina Beach in excess of bis lawful salary, nor has be any right to recover of tbe plaintiff any sum for services by him while acting as clerk of said town upon tbe principle of quantum meruit. See Borden v. Goldsboro, 173 N. C., 661, 92 S. E., 694.

There was no error in tbe trial of tbis action. Tbe judgment is affirmed.

No error.