The effect of the decision on the former appeal was to read into the contract the provisions of the statute under which it was made, and, as thus construed, the contract was held to limit petitioner's right to compensation for services "actually rendered." Davis, Atty. Gen., v. Brown, 212 Ala. 604,103 So. 476.
The contract originally entered into, and as first modified, clearly contemplated that the petitioner should "devote his time, as Special Assistant Attorney General, to the performance of such duties in the office of the Attorney General" as might be assigned to him by the Attorney General, and for which he was to be paid an annual salary, in monthly installments, as "stipulated in writing," as required by the statute (Code of 1923, § 861).
Pending this contract, and as to this there is no dispute, the petitioner tendered his resignation that he might accept other employment or engage in the general practice of the law, and in response, the Attorney General, with the approval of the Governor, delivered to the petitioner the following letter:
"This is to advise that under your contract with the state of Alabama, your services as Special Assistant Attorney General will be limited to assisting in the conduct of litigation with reference to the Atlantic Coast Line Railroad Company franchise tax, and cases involving the validity of the coal and iron ore tonnage tax, the fuel oil inspection tax, and income tax." (Italics supplied.)
Construing the contract as last modified, in connection with the provisions of the statute (Code 1923, § 863), that "the special assistants to the Attorney General herein authorized shall be paid upon the warrant of the auditor drawn upon the certificate of the Attorney General, approved by the Governor, that their services were actually rendered, that they were necessary for the efficient conduct of the public business and could not be performed by the officers regularly provided by law," it contemplated services rendered in the active conduct of litigation, as distinguished from the mere passive waiting the determination of a settlement of the legal questions in the Crane Case, then pending on appeal, and a continuance of the Atlantic Coast Line Case on the docket, followed by furnishing the data as a basis for a final payment of the franchise tax due in that case, a service that could well have been performed by the *Page 527 officers provided by law. When the active litigation ceased in the designated matters, as was held on the former appeal, the petitioner's status as Special Assistant Attorney General was ended, as "an actual fact." Davis, Atty. Gen., v. Brown, supra.
The petitioner admits that "there were no steps taken in the courts between January 31, 1921, and January 31, 1922," in these matters, except the continuance of the Coast Line Case under an agreement with counsel representing the railroad company, and that he had been fully paid for all services rendered prior to January 31, 1921.
Therefore, viewing the case stripped of technical questions of pleading, the petitioner's asserted right is without foundation in fact or law, and the judgment of the circuit court will be reversed, and the petition for the writ of mandamus dismissed.
Reversed and rendered.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.