Summary
In McMillan v. Lee, 655 So.2d 906 (Ala. 1994), a former lieutenant governor filed an action seeking an order directed to the secretary of the senate, the state comptroller, and the director of the state finance department ordering payment of the monthly expense allowance of $1,500 to which he was entitled as a matter of state law.
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1921877.
August 12, 1994. Rehearing Denied February 10, 1995.
Appeal from the Montgomery Circuit Court, No. CV-92-2880, William R. Gordon, J.
William M. Slaughter, Thomas T. Gallion III and Richard H. Walston of Haskell, Slaughter, Young, Johnston Gallion, Birmingham, for appellant.
A. Lee Miller III, General Counsel, Dept. of Finance, Montgomery, for appellee.
On December 31, 1992, George D.H. McMillan filed this action, seeking a judgment declaring that he was entitled to, and ordering payment of, the monthly expense allowances established pursuant to House Joint Resolution (H.J.R.) 223 and Senate Resolution (S.R.) 112, of the 1971 Regular Session of the legislature. McMillan contends that the expense allowances, plus interest, are due him for the term of his service as lieutenant governor of Alabama from January 15, 1979, to January 17, 1983. The trial court dismissed the case, holding that McMillan's claim is barred by the six-year statute of limitations set out in Ala. Code 1975, § 6-2-34.
McMillan brought this action against three public officials: McDowell Lee, secretary of the Senate; Robert L. Childree, comptroller; and Ivan F. Smith, director of the Finance Department. James C. White, Sr., became the director of the Finance Department during the pendency of this action and was substituted as a party.
The Senate Ethics Committee, acting pursuant to H.J.R. 223 and S.R. 112, set the lieutenant governor's expense allowance at $1,500 per month.
McMillan's sole contention on appeal is that the trial court erred in applying the six-year statute of limitations. Specifically, he contends that his cause of action is governed by the 10-year statute of limitations set out in Ala. Code 1975, § 6-2-33(3).
McMillan claims that he is entitled to the monthly expense allowances pursuant to H.J.R. 223 and S.R. 112. The legal effect of these two resolutions has been determined by this Court in Gunter v. Beasley, 414 So.2d 41 (Ala. 1982). There, a unanimous Court held that neither resolution was unconstitutional and that Jere Beasley, a former lieutenant governor, was entitled to the expense allowances. We further held that Beasley's action to recover the allowances was not barred by Art. I, § 14, of the Alabama Constitution, because the defendants "in refusing to make these payments to Beasley failed to perform their legal duties." 414 So.2d at 49.
As noted above, McMillan argues that Ala. Code 1975, § 6-2-33(3), is the applicable statute of limitations in this case. That section provides that "actions against sheriffs, coroners, constables, and other public officers for nonfeasance, misfeasance, or malfeasance in office" must be commenced within 10 years. McMillan contends that this is the applicable statute of limitations because this cause of action was brought in order to force public officers to perform their statutory duties. We agree.
This Court has long taken the position that an unambiguous statute should be accorded the plain meaning dictated by its terms. Here, giving the statute a plain reading, we hold that the secretary of the Senate, the comptroller, and the director of the Finance Department (all defendants here) are officials who come within the statute.
Now we must determine whether this action can be brought against these public officials in this instance. The Alabama Constitution strictly limits the kinds of actions that may be maintained against the State or its officers. Article 1, § 14, of the Alabama Constitution of 1901 prohibits actions against the state. This immunity from suit also extends to officers and agents of the State. Ex parte Carter, 395 So.2d 65 (Ala. 1980). However, there are six categories of actions that do not fall within this prohibition, one of which is an action brought to compel State officials to perform their legal duty. Gunter v. Beasley, 414 So.2d 41 (Ala. 1982). The basis for relief sought in McMillan's complaint is as follows:
"In failing to pay George McMillan's expense allowance during his service as Lt. Governor, and in denying the subsequent request of George McMillan for payment of the cumulative monthly expense allowance plus interest, the Defendants have acted under a mistaken interpretation of law; this action is brought on account of the misfeasance or nonfeasance of public officials."
Clearly, McMillan is alleging misfeasance or nonfeasance (failure to perform their legal duty) by these public officials.
Although the applicable statute of limitations was not at issue in Gunter, we note that Beasley brought his action approximately eight years after his first payment of the allowance was suspended. This Court awarded him the total amount of expense allowances missed, plus interest. The relief requested by Beasley was identical to that requested by McMillan in the present case. Just as in Gunter, this is an action to compel public officers to perform their legal duties. Therefore, we hold that the 10-year statute of limitations in Ala. Code 1975, § 6-2-33, applies to this cause of action. Accordingly, the trial court erred in holding that this action was time-barred. The judgment of the trial court is due to be reversed and the cause remanded for that court to determine whether the defendants were guilty of misfeasance or nonfeasance failing to pay the expense allowance.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX and COOK, JJ., concur.
HOUSTON, J., concurs in the result.
In Gunter v. Beasley, 414 So.2d 41 (Ala. 1982), a unanimous Court held that Jere Beasley, a former lieutenant governor, was entitled to the expense allowance that George McMillan, another former lieutenant governor, seeks in this case. The applicable statute of limitations was not an issue in Gunter v. Beasley. The sole issue now before this Court is whether McMillan's action is time-barred under the six-year statute of limitations.
McMillan's complaint states his basis for relief as follows:
"In failing to pay George McMillan's expense allowance during his service as Lt. Governor, and in denying the subsequent request of George McMillan for payment of the cumulative monthly expense allowance plus interest, the Defendants [who are clearly public officers] have acted under a mistaken interpretation of law; this action is brought on account of the misfeasance or nonfeasance of public officials."
Ala. Code 1975, § 6-2-33(3), provides a 10-year statute of limitations for "Motions and other actions against sheriffs, coroners, constables, and other public officers for nonfeasance, misfeasance, or malfeasance in office."
I am persuaded that McMillan sought to recover under a cause of action subject to the 10-year limitations period of § 6-2-33(3). Therefore, I am persuaded that the summary judgment should be reversed.
Was there substantial evidence of misfeasance or nonfeasance on the part of the defendants? That question is not before this Court. The defendants failed to pay a monthly expense allowance to McMillan while he was lieutenant governor. In Gunter v. Beasley, this Court held that such an expense allowance was due Jere Beasley while he was lieutenant governor. Did the failure to pay this expense allowance constitute misfeasance or nonfeasance? One cannot determine that from the record in this case.
The limitations period applicable to a cause of action begins to run when the cause of action accrues. The expense allowance that is the subject of this action was payable monthly; therefore, if the defendants were guilty of misfeasance or nonfeasance, a cause of action allowing for the recovery of each payment accrued on the first day of the month following the month for which payment was due and was not made. This cause of action is different from the cause of action in Williams v. Williams, 497 So.2d 481 (Ala. 1986) (the limitations period applicable to a claim for a payment due in installments does not commence to run until the final installment becomes due and is unpaid). This is an action based on alleged misfeasance or nonfeasance of a public officer.
If the failure to pay a particular monthly allowance expense was a misfeasance or a nonfeasance, then this misfeasance or nonfeasance was actionable on the first day of the month following the month for which the payment was due and was not made. Certainly, if the public officer were tried criminally or an attempt was made to remove the public officer from office for the failure to pay the lieutenant governor's monthly expense allowance (i.e., for misfeasance or nonfeasance), that officer could not defend on the principle that the time for payment had not ended and that as long as the officer pays the expense allowance before the lieutenant governor's term of office ends, the officer is not guilty of misfeasance or nonfeasance.
This action was filed on December 31, 1992. Therefore, it could well be that McMillan's claims for expense allowances for December 1982 and any months subsequent thereto are not barred, if it is determined that the failure to pay this expense allowance was a misfeasance or a nonfeasance, but that all expense allowances for months before December 1982 (10 years before this action was filed) are barred. This I cannot determine from the record in this case.
In my opinion, this cause must be remanded for a determination of whether any of the public officers were guilty of misfeasance or nonfeasance; and, if so, whether McMillan's claim based on that misfeasance or nonfeasance is time-barred under Ala. Code 1975, § 6-2-33(3).