Plaintiffs brought their action in assumpsit against said County to recover certain sums of money as the unpaid salary of said Edward A. Veitch, alleged to be due him at the time of his death, for services rendered by him as Deputy License Commissioner of said County in the months of April, May and June, 1933, and September, 1934.
A judgment was rendered by the court below in favor of said plaintiffs for the sum of $292.50 and costs, and from that judgment said Jefferson County, defendant, appeals.
The complaint filed by plaintiffs against defendant in the court below contained, originally, eight counts. Four of these counts were eliminated by demurrer ánd upon the remaining four counts, viz: counts 2, 4, 6 and 8, issue was joined between the parties.
Counts 2, 4 and 6, each respectively, claimed the sum of $75 balance of salary for the months of April, May and June, 1933, while count 8 claimed the sum of $67.50 balance of salary due for the month of September, 1934.
It was alleged in each, of said counts 2, 4, 6 and 8 that the amount therein sued for was due for salary of said Edward A. Veitch for work and labor done by him for the defendant, and at its request, during the month specified in said counts, and that the said Edward A. Veitch was, *284at the time said services were rendered, Deputy License Commissioner of Jefferson County, Alabama, Bessemer Division, and that as such officer he was duly authorized and required to perform all of the duties of said office throughout the entire duration of each of said months.
Each of said counts of the complaint also aver that the said Edward A. Veitch filed his claim, duly itemized and sworn to, for the amount therein sued for, with the County Commission of said County, on towit: March 18, 1936, and that said claim was disallowed by said County Commission on, towit: October 11, 1936, and that thereafter on, towit: January 11, 1938, plaintiffs, as residuary legatees of the estate of Edward A. Veitch, deceased, filed an additional claim for the amounts sued for in each of said counts, with said County Commission, and that said claim was disallowed by said County Commission on, towit: May 11, 1938. Plaintiffs filed their suit in the court below on July 8, 1938, as appears from the endorsement of the clerk of the court below upon the complaint.
The defendant filed its demurrer to said complaint, assigning 11 separate grounds of demurrer, one of which was that said complaint did not state a cause of action against the defendant. This demurrer, as has been noted, was sustained as to all counts of the complaint except counts 2, 4, 6 and 8 thereof, to which said demurrer was overruled. Thereupon the defendant filed its plea of the general issue, in short by consent, to counts 2, 4, 6 and 8 of said complaint, each separately and severally, with leave to give in evidence any matter, which, if well pleaded, would be in defense of said suit, and to have effect as if so pleaded, and with the like right to plaintiffs to give in evidence any matter, which, if well pleaded, would be admissible in reply to such defensive matter, and to have effect as if so pleaded.
The issue between plaintiffs and defendant was, as set out in said counts 2, 4, 6 and 8 of said complaint and in said plea, submitted to the court below for its judgment thereon upon an agreed statement of facts, a copy of which is incorporated in the transcript filed in this court.
It is the contention of plaintiffs (appellees) that Edward A. Veitch, their deceased testator, was a county officer of Jefferson County; that his term of office was six years; that he was entitled to receive a salary of $225 per month for the services performed and duties discharged by him as such county officer; that it was the duty of the defendant to pay this salary; that, his term of office did not expire until July 17, 1937, on which day any balance of salary earned by him in the months of April, May, and June, 1933, and September,. 1934, might have been paid under the provisions of section 2713 of the Code of Alabama, 1923; that his claim for $292.50 balance of salary, filed with the County Commission of Jefferson County on March 18, 1936, was not then barred by the provisions of section 228 of the Code 1923,. because his term of office had not expired,, and, furthermore, that claims of county officers for official salaries do not belong-to that class of claims which require an audit and allowance by the governing body of the county, and hence their suit was. not barred and they were entitled to recover.
It is the contention of the defendant (appellant) that Edward A. Veitch, plaintiffs’' deceased testator, was not a county officer of Jefferson County in the months of' April, May and June, 1933, and September, 1934, when the services described in the complaint were rendered; that he was. then, and at all times, a mere employee of the county; that said employee was appointed to his position by the County Commission of said County; that his compensation was fixed by said Commission;, that if said Commission deemed it necessary, for the public good, to put said employee upon an enforced ten days’ vacation, without pay, during said months and thereby reduce his compensation to the-amounts actually paid him for each of said months, said Commission had the legal power and authority so to do; that the claim of plaintiffs’ testator accrued, if it accrued at all, and was payable on the last day of each of said months; that it was necessary for said County Commission to-audit and allow, or disallow, said claim; that said claim was not presented to and filed with said County Commission for audit and allowance until more than twelve months after the same accrued, or became payable; that at the time of presentation and filing it was barred by section 228 of the Code 1923; that plaintiffs’ suit was prohibited by section 5680 of the Code 1923; that the trial court erred in overruling defendant’s demurrer to counts 2, 4, 6 and 8 of plaintiffs’ said complaint; that the trial court erred in rendering a judg*285ment for plaintiffs and in refusing to render a judgment for the defendant.
1. This Court does not agree with counsel for appellant in his contention that Edward A. Veitch, plaintiffs’ testator, was not a county officer of Jefferson County, Bessemer Division, during the time he was actually serving and acting as Deputy License Commissioner of said County, in the Bessemer office, having actual charge and control of that office, as admitted by appellant.
Any person, executing an agency of the State, under the authority of a public law, is an officer within the generic meaning of the term. The statute (Gen’l. Acts, Alabama, 1931, p. 522) created the office of License Commissioner of Jefferson County, Alabama, and provided that the officer (the License Commissioner) should be appointed by the County' Commission of said County. The Act fixes the term of office for the incumbent at six years, and his salary at $5,000 per annum.
The duties of the License Commissioner are declared by the statute in broad and comprehensive terms, among which is the appointment of such clerks and assistants as he may deem necessary for the proper discharge of the duties of said office. The number of clerks and assistants to be appointed by said License Commissioner is to be determined by the County Commission, which body is required to fix the amount of salary, or compensation, to be paid to each,, and which body is also required to approve said appointments before they become effective.
Eugene B. Henry was appointed License Commissioner of Jefferson County by the County Commission of said County, under the provisions of said statute, on July 17, 1931, and immediately qualified as such officer by executing an official bond and taking the oath of office.
By the terms of an Act of the Legislature of Alabama, approved September 16, 1915 (Gen’l.Acts, Alabama, 1915, p. 549), all county officers of Jefferson County are required to keep and maintain a branch office at Bessemer for the transaction of all business arising in the Bessemer judicial division of said County, and to appoint deputies, who shall at the time of their appointment and during their term of office be qualified electors, residing within the Bessemer Division of said County, and who shall at all times be in charge of the office of their principals, and who are authorized to discharge all ministerial duties, and perform all acts of their principals that could be performed by their principals that are not strictly and exclusively nondelegable, and for all such acts said deputies are held responsible on their official bonds.
Said Act also requires that said county officers shall, before permitting said deputies to enter upon the discharge of their duties, require said deputies to take the oath of office and to enter into bond in the sum of not less than two thousand nor more than ten thousand dollars and made payable and conditioned as the bonds of their principals were then required by law to be payable and conditioned.
Said Act also provides that where the county officer is on a salary basis the salary, or compensation, of such deputy shall be fixed by the Board of Revenue, or Court of County Commissioners (the County Commission), and that said deputy’s compensation shall be paid out of the county treasury on the order or warrant of such officer.
In the case of Ex parte State ex rel. Shirley, 20 Ala.App. 473, 103 So. 68, 70 (Samford, J.), speaking with reference to the legislative intent in the passage of said Act of 1915, it was said: “It is clear to-us that it was the intention of the Legislature, as to the matters therein provided,' to establish a separate territorial jurisdiction in the counties named. Such is the territory in which is Bessemer in Jefferson county.”
Our Supreme Court in the case of Henry, County Treasurer, v. State ex rel. Kemp, 205 Ala. 196, 87 So. 816, speaking with reference to the provisions of said Act of 1915 as it related to the office of Sheriff of Jefferson County and the manner of the payment of the salary, or compensation, of his Deputy at Bessemer, said: “It was the intent and purpose of the act that the sheriff should maintain a branch office in charge of a bonded deputy at Bessemer. The salary of such deputy is fixed by the board of revenue, and is payable out of the county treasury on an order or warrant drawn on the treasurer.”
What is said in the Kemp case,, supra, applies to the office of License Commissioner of Jefferson County, because under the Acts of 1931 and 1915, supra, the said License Commissioner of said County is required to maintain a branch office at Bessemer in charge of a bonded Depu*286ty, or Chief Clerk, whose salary is fixed by the County Commission of said County and which, under section 5 of said Act of 1915, p. 551, is payable out of the county treasury on the order, or warrant, of the License Commissioner of said County.
It is shown by the agreed statement of facts in this case that Eugene B. Henry, License Commissioner of Jefferson County, appointed Edward A. Veitch to the office of Deputy License Commissioner of said County, Bessemer division, on January 11, 1933, and that this appointment was approved by the County Commission on said day and that the salary of said Edward A. Veitch was then and there fixed by said Commission at the sum of $225 per month. The fact that the appointment of said Deputy License Commissioner did not specify the term of office for which he was appointed, or the fact that his tenure of office may have been at the will, or pleasure, of his superior, did not affect his legal status as an officer of said county, while in the actual discharge ■of his official duties, which were of a serious and highly important character, continuing in their nature, and in the proper and legal performance of which both the State and county, as well as the general public, were vitally concerned. Said Act of 1931 declares in broad terms what those duties are. Among other things he was charged with the collection of a substantial part of the revenue of the State and county in an important portion of said county. We need not attempt to enumerate the duties imposed by law upon the Deputy License Commissioner of Jefferson County, Bessemer Division, suffice it to say that in so far as said Bessemer Division ■ of said County is concerned, the said Edgar A. Veitch, while discharging the duties of his office, was, to all intents and purposes, the alter ego of Eugene B. Henry, License ■Commissioner of Jefferson County. That said Edward A. Veitch was a county officer of Jefferson County, Alabama, in March, April, May and June, 1933, and in August and September, 1934, we entertain no doubt. Acts of Alabama, 1915, p. 549; Acts of Alabama, 1931, p. 522; Andrews v. State, 78 Ala. 483, 485; Michael v. State, 163 Ala. 425, 50 So. 929; Touart v. State ex rel., 173 Ala. 453, 56 So. 211; Gerald v. Walker, Supt. of Banks, 201 Ala. 502, 78 So. 856; Henry, County Treasurer v. State ex rel. Kemp, 205 Ala. 196, 87 So. 816; Ingram v. Evans et al., 227 Ala. 14, 148 So. 593; Hamilton v. Edmundson, 235 Ala. 97, 177 So. 743; Meechem on Public Officers, Sec. 1; Throop on Public Officers, Sec. 2.
2. The fact that the Legislature of Alabama delegated to the County Commission of Jefferson County the power and authority to approve the appointment of the Deputy License Commissioner, Bessemer Division, of said County, and the power also to fix his salary, did not confer upon said County Commission either the power, or the authority, to temporarily remove said Deputy License Commissioner from his office, or to summarily command and require the License Commissioner of said County to do so, which was the legal effect of said resolutions adopted by the County Commission of Jefferson County in the months of March, April and May, 1933, and August, 1934, copies of which are set out in the agreed statement of facts. Brassell v. Brandon, 223 Ala. 324, 135 So. 577.
The right and power to appoint the Deputy License Commissioner of Jefferson County, Bessemer Division, was, under the provisions of the Acts of the Legislature of Alabama (Gen’l.Acts Alabama, 1915, p. 549; Gen’l.Acts of Alabama, 1931, p. 522) ' delegated to and vested in the License Commissioner of said County and not in the County Commission thereof. That said power of appointment was to be carefully and circumspectly exercised is, we think, manifested by that provision of said Act of 1931 which vested in the County Commission of said County the power and authority to approve the appointment and to fix the salary to be paid to the appointee.
In the case of Touart v. State ex rel., supra, our Supreme Court said [173 Ala. 453, 56 So. 214]: “It has been uniformly ruled that the power to appoint an officer carries with it, as an incident, in the absence of constitutional or statutory restraint, the right to remove the appointee.”
And further in the same case it was said: “When a person is appointed to an office the term of which is not fixed by law, he is then and ever after regarded as holding subject to the will of the appointing power.”
In addition to the want of power in the County Commission of Jefferson County to temporarily remove' the Deputy *287License Commissioner, Bessemer Division, of said County from his office, at any time, this record affirmatively shows that the said Edward A. Veitch, Deputy License Commissioner of Jefferson County, Bessemer Division, during the months of April, May and June, 1933, and September, 1934, was not in fact so removed from his said office by any one. The agreed statement of facts recites that Edward A. Veitch was employed during the months of April, May and June, 1933, and September, 1934, as Deputy License Commissioner of Jefferson County, Bessemer Division, as provided by said Acts of the Legislature of 1915 and 1931, respectively and that as such, “he was duly authorized and required to perform all the duties of said office, and it is agreed that he did perform all such work and labor and performed such services from Jan. 11, 1933, up to and including the 1st day of October, 1934." (Emphasis ours).
And so it is the opinion and judgment of this Court that said Edward A. Veitch, said officer, earned and was entitled to receive his entire salary of $225 per month for each of the months, April, May and June, 1933, and September, 1934. The record in this case shows that he was paid only a part of his salary for said months. His acceptance of the part of his salary actually paid to him for these months did not estop or preclude him from enforcing the collection of the remainder of his salary for said months, as provided by law. Hamilton, Tax Collector v. Edmundson, supra.
3. Plaintiffs, the residuary legatees of Edward A. Veitch, deceased, brought a suit in assumpsit, on the common counts, in the court below, against Jefferson County, defendant, to enforce the collection of the balance of salary alleged to be due said Edward A. Veitch, deceased, at the time of his death. Plaintiffs are mistaken in their remedy for the collection of said balance of salary due said officer. Actions in assumpsit are brought for the breach of a contract. Alabama Great Southern Railway Co. v. Norris, 167 Ala. 311, 52 So. 891.
The Deputy License Commissioner of Jefferson County, Bessemer Division, did not hold office and was not entitled to receive his salary as the incumbent of said office, actually discharging the duties thereof, by virtue of any contractual relationship between him and said County, or between him and the County Commission of said County. He held an office created by law, under an appointment authorized by law, and was entitled to receive his salary, fixed in the manner provided by law, as the emolument of said office, the payment of which was by law charged upon the treasury of said county. That salary, the law provides, was payable upon the order, or warrant of his superior to the County Commission of said County. If the County Commission failed or refused to issue to the Deputy License Commissioner a warrant upon the County Treasury for the amount of his salary upon the order of his superior, the License Commissioner of said County, then the Deputy License Commissioner had his remedy to compel the issuance of said warrant but that remedy was not by suit in assumpsit against the County because that action is a remedy for the enforcement of contracts expressed by the parties, or implied by the law from their acts. 7 Corpus Juris Secundum, Action of Assumpsit, p. 109, § 1 et seq. But the appointment to a public office does not create a contract. Harrington v. State, 200 Ala. 480, 76 So. 422; Turner v. State, 226 Ala. 269, 146 So. 601; McDonald v. New Haven, 94 Conn. 403, 109 A. 176, 10 A.L.R. 194; 22 R.C.L. 379; Sibley v. State, 89 Conn. 682, 96 A. 161, L.R.A.1916C, 1087; Hall et al. v. City of Shreveport, 157 La. 589, 102 So. 680.
Defendant’s demurrer, upon one of the grounds therein assigned, took the point' that the complaint failed to state a cause of action against the defendant. This Court is of the opinion that the demurrer upon this ground was well taken and that the trial court erred in its judgment overruling said demurrer. Authorities, supra.
4. In the case of State ex rel. State Tax Commission v. Smith, Auditor, 188 Ala. 432, 439, 440, 66 So. 61, 63, it was said by our Supreme Court: “Salaries . are paid to public officials not so much as an equivalent for services performed as for the purpose of enabling them, while in office and in the performance of public duties, to be relieved of the necessity of constant watchfulness for the necessities and comforts of life.”
And so the law of this State provides, a highly efficient remedy for an officer whose salary has been unlawfully withheld, or denied to him. That remedy is the writ *288of mandamus against the officer or board who wrongfully withholds or refuses to pay said salary. Concerning the writ of mandamus our Supreme Court in the case of Sessions v. Boykin, 78 Ala. 328, said: “The general rule is, that to entitle a party to a mandamus, there must concur a specific legal right, and the absence of any other specific * * * legal remedy. The adequacy of another legal remedy, so as to prevent interposition by mandamus, is tested by its sufficiency to place the party in the position he occupied before the omission of the duty complained of, or would have occupied if the duty had be.en performed.” (Emphasis ours).
It is evident from what is said in the Sessions case, supra, and a great many other cases from our Supreme Court and from this Court, unnecessary now to be cited, that the remedy by mandamus is exclusive. If the writ is granted it is because there is no other remedy.
The case of Henry, County Treasurer v. State ex rel. Kemp, 205 Ala. 196, 87 So. 816, is one where a deputy sheriff of Jefferson County attempted to compel the Treasurer of said County to pay a warrant which had been issued in his favor in payment of his salary. The proceeding was for mandamus.
The case of Earp v. Bishop, 222 Ala. 235, 132 So. 36, is one where the Chief Clerk of the Board of Registrars of Jefferson County was attempting to collect an alleged balance of salary, claimed to be due him. The remedy applied for was the writ of mandamus.
The case of Hamilton, Tax Collector v. Edmundson, 235 Ala. 97, 177 So. 743, is one where a Deputy Tax Assessor of Jefferson County was proceeding for the collection of a claimed balance of compensation. The proceeding was by petition for mandamus.
The case of Beasley, Mayor v. McCorkle, 237 Ala. 4, 184 So. 904, is one where a Chief of Police was endeavoring to enforce the collection of his salary. He applied for the writ of mandamus.
In the case of Earp v. Bishop, supra, the question was directly before the Supreme Court for decision. Both appellant and appellee cited the case of Sessions v. Boykin, supra. The appellant contended that mandamus was the proper remedy .and the appellee contended that the writ •of mandamus could not issue unless petitioner had a clear specific right to have the Board of Revenue of Jefferson County issue the warrant applied for and no other remedy whereby his compensation could be obtained. In that case the Court said: “The writ of mandamus has long been recognized as the appropriate remedy directed against the members of the board. State ex rel. Denson v. Miller, 204 Ala. 234, 85 So. 700; Revenue & Road Com’rs of Mobile County v. State ex rel. Campbell, 163 Ala. 441, 50 So. 972; Sessions v. Boykin, 78 Ala. 328; Reynolds, Auditor v. Taylor, 43 Ala. 420.”
The appellant assigns as error the rendition of judgment by the court below in favor of the plaintiffs and against the defendant for $292.50 and costs of suit. And the appellant also assigns as error the refusal of the trial court to render judgment in favor of the defendant.
In view of the fact that plaintiffs were not entitled to bring their action in assumpsit against the defendant for the alleged balance of salary due their deceased testator at the time of his death and further in view of the law requiring plaintiffs, if they had a clear legal right to the balance of the salary of their deceased testator as claimed by them, to institute a proceeding in mandamus to enforce the collection of their demand, it is the judgment of this Court that the trial court erred in rendering judgment for the plaintiffs, and erred, also, in refusing to render judgment in favor of the defendant upon the agreed statement of facts upon which said case was submitted."
For the errors pointed out the judgment of the trial court is hereby reversed and this cause is remanded to the court below to be there disposed of in accordance with the law herein announced.
Reversed and remanded.