On Rehearing
(After Cause was Returned by Supreme Court)
When this case was before this court, upon original submission, the court rendered judgment reversing the judgment of the lower court and remanding said cause. Such judgment was in favor of appellant, but nevertheless, appellant petitioned the Supreme Court for a writ of certiorari to review and revise the opinion here rendered. Upon consideration thereof by the Supreme *289Court 195 So. 277,1 for the reasons stated by Mr. Justice Gardner, in the opinion for the court, the petition for writ of certiorari was dismissed. We quote the concluding paragraph of the opinion, supra, towit: “We think the action of assumpsit was proper in this case, and have so stated our reasons therefor that the question may be re-examined by the Court of Appeals. And if, upon such re-examination, that court likewise so concludes, then there may be had such a final determination of the cause as could be here properly .reviewed in orderly manner, if so desired by the aggrieved party.” . Acting upon the foregoing suggestion we now proceed to re-examine the points of decision involved upon the appeal.
, The action brought by plaintiff in the court below was in assumpsit, and was for the recovery of certain sums of money alleged to be due as the balance of official salary of one Edward A. Veitch, a Deputy License Commissioner of Jefferson County, Alabama, for services rendered by him as such and which he was authorized and required to render.
In the consideration of the case, upon its original submission, this court deemed it necessary and proper to determine from the facts of the case and the law applicable thereto, whether or not the said Edward A. Veitch, as Deputy License Commissioner of Jefferson County, was an officer of said county. ■ •
We held upon that submission that the .Deputy License Commissioner of Jefferson County, Alabama, was a county officer of said county, and cited relevant authorities in support of that determination. We also held that the County Commission of Jefferson County, the, governing body of said county, was without legal right and authority to summarily require the License Commissioner of the county to place said Dep.uty License Commissioner of Jefferson County, Bessemer Division, upon a 10 days’ vacation without pay and thereby decrease .the amount of compensation to which said Deputy Commissioner was entitled to receive for the services actually performed by him.
This court further held that the remedy of the plaintiff in the court below was by mandamus, and not by assumpsit, and that for this reason, the judgment of the lower court should be reversed and the cause remanded.
In support of our adjudication that mandamus was the proper remedy for the collection of the official salary of a public officer, or of any unpaid balance thereof, we cited a number of cases from our Supreme Court, including the case of Earp v. Bishop, 222 Ala. 235, 132 So. 36; and Beasley, Mayor, v. McCorkle, 237 Ala. 4, 184 So. 904. In each of said cases it was held that mandamus was the proper remedy for the enforcement of the collection of the official salaries involved in said cases.
This court, in its opinion in the case at bar, called attention to the rule declared in the case of Sessions v. Boykin, 78 Ala. 328, and in Beasley, Mayor, v. McCorkle, supra, to the effect that to entitle a party to mandamus there must concur a specific legal right to the relief sought, and the absence of any other specific legal remedy.
This court, therefore, was of the opinion that its judgment with respect to the remedy which should have been pursued by plaintiffs in the court below, in the case at bar, was compelled, by the provisions of the pronouncements of the Supreme Court of Alabama with respect to the conditions upon which the writ of mandamus might be applied for, to hold that a county-official seeking to collect an alleged balance of official salary or compensation, must proceed by petition of mandamus inasmuch as the case of Earp v. Bishop, supra, and the other cited cases hold that mandamus, by its very nature an exclusive remedy, is the proper mode for the collection of said official salary or'alleged balance thereon.
Upon the application for certiorari our Supreme Court made, among others, the following pronouncement: “The question of the resort to mandamus relates to the matter of adequacy of any other remedy. And while some of the cited cases have held mandamus appropriate in a case of this character (Earp v. Bishop, 222 Ala. 235, 132 So. 36), yet it was not said that it was the exclusive remedy, and that general assumpsit would not lie. Any expressions tending to a contrary view in the opinion in Marengo County v. Lyles, 101 Ala. 423, 12 So. 412, were disapproved in Scarbrough v. Watson, 140 Ala. 349, 37 So. 281.”
With due deference to our Supreme Court, and with full consciousness that the ‘ court is controlled by the judgment of the Supreme Court, we nevertheless deem it right and proper to say that the Supreme *290Court having declared that mandamus was appropriate in cases of the character of the case at bar, in substance and effect, has also declared that assumpsit would not lie in such cases for the reason that mandamus cannot issue except in the absence of any ■other appropriate remedy. This court so considered and construed the opinions of the Supreme Court upon this question in the cases cited.
This court further is of the opinion that the cases, of Marengo County v. Lyles, 101 Ala. 423, 12 So. 412, and Scarbrough v. Watson, 140 Ala. 349, 37 So. 281, must be differentiated from the case at bar for the reason, that the question of an official’s salary which had been fixed and determined according to law, and which did not depend upon any subsequent allowance or disallowance by the governing body of the county, was not the matter involved in either of said cases; while under the facts in the cases of Marengo County v. Lyles, supra, and, Scarbrough v. Watson, supra, the claims there involved were of such nature as required the presentation of those claims to the governing body of the county for allowance or disallowance, and if disallowed, then to be sued upon according to the applicable Statutes.
In our original opinion in the case at bar, this court also said that actions in assumpsit were based upon a contractual relationship between the parties. It was •pointed out that the contract might be expressed or it might be implied. It was also pointed out that under the law of this State the appointment to a public office does not create a contract, nor a contractual relation, either expressed or implied. This court was then, as was pointed out, and is now, it may be added, of the opinion that under express decisions of the Supreme Court all claims against a county or municipality growing out of a contract, express or implied, or based upon a contractual relationship, express or implied, are to be enforced by suits in assumpsit.
The Supreme Court has decided, in the case at bar, that plaintiffs in -the court below were entitled to bring their action of assumpsit, and by that decision this court is controlled. Code 1923, Section 7318.
The suit in the court below, as has been stated, was for the recovery of an alleged unpaid balance of official salary claimed to be due Edward A. Veitch, plaintiffs’ deceased testator, for services rendered by him, and which he was authorized and required to perform, as a Deputy License Commissioner of Jefferson County, Bessemer Division, for the months of April, May- and June, 1933, and for the month of September, 1934, it being alleged that said services were performed during the term of office of said Deputy License Commissioner beginning July 15, 1931, and ending July 15, 1937.
The pleadings, both in behalf of the plaintiff and the defendant, have been sufficiently referred to in the original opinion of this court, in this case and will not be now again enumerated.
The facts of the case and in support of plaintiff’s complaint, and of defendant’s plea thereto are set out in an agreed statement of facts, incorporated in and made a part of the record in this case, and which ■were sufficiently referred to and set out in the original opinion of this court, dated June 30, 1939, on the original submission of this case.
From the facts of this case and from the law applicable thereto, it was the considered opinion of this court that Edward A. Veitch throughout.the months of April, May, and June, 1933, and September, 1934, was a county officer of Jefferson County, Alabama, he having been appointed to the office of Deputy License Commissioner of Jefferson County, Bessemer Division, in form and manner as provided by law. His salary, .or compensation, was fixed, as provided by law, by the county commission of said county on January 11, 1933, at the sum of $225 per month.
The County Commission of Jefferson County adopted four different resolutions, dated March 31, 1933, April 25, 1933, May 25, 1933 and August 28, 1934, respectively, affecting the heads of certain departments of the county government of said county, including that of License Commissioner, one of these resolutions covered the month of April, 1933, another the month of May, 1933, and another the month of June, 1933, •while the last of the four covered the month of September, 1934. Each of these resolutions provided that the heads of the enumerated departments of the county government, including the License Commissioner of-Jefferson County were “hereby ordered and directed to put one third of the employees of such department on a ten day leave of absence without pay, effective on the 1st day of April, May and June 1933, and September 1934, and at the expiration of said *29110 days holiday without pay, to place another one third of such employees on like vacation such alternating vacations to continue until further notice, the intent hereof being that each of the employees in each of said departments shall draw for two-thirds out of each month elapsing from the effective date of this resolution. That is, until May 1, June 1, and July 1, 1933, and October 1934.”
The contention of appellant, with respect to said resolutions is:
(1) These resolutions required all of the employees in the office of License Commissioner of Jefferson County, including Edward A. Veitch, as Deputy License Commissioner of said county, Bessemer Division, to take a ten day payless vacation during each of the months April, May, 'and June, 1933, and September 1934.
(2) That the amounts claimed by plaintiffs as balance of said Edward A. Veitch, Deputy License Commissioner, would have been payable had it not been for the passage of said resolutions requiring the taking of said payless vacations by said Deputy License Commissioner.
With respect to the above enumerated two contentions of appellant it is to. be noted that the agreed statement of facts expressly recites that said Deputy License Commissioner “was duly authorised and required to perform all the duties of said office, and it is agreed he did perform all such work and labor and performed such services from January 11, 1933 up to and including the 1st day of October, 1934.”
It is also to be noted that each of said resolutions simply commanded or directed the heads of the enumerated county departments to put one third of the employees of s.aid departments on a. .ten days’ vacation, leave of absence, or holiday without pay. The County Commission of Jefferson County did not place the Deputy License Commissioner of said county, Bessemer Divi-' sion, on a ten days’ leave of absence without pay. Said Commission commanded or ■directed the License Commissioner of said county to put the Deputy License Commissioner of said county, Bessemer Division, on a ten days’ leave of absence or vacation, without pay, but this, the license commission, the head of this county department did not do, because, as noted, the agreed statement of facts recites that the Deputy License Commissioner was duly authorized and required to perform and actually did perform all the duties of his office from January 11, 1933, up to and including the 1st day of October, 1934, which period it must be admitted included all the months of April, May and June, 1933, and September, 1934.
There áre nine assignments of error by appellant upon this appeal. Assignments of error numbered from one to five, inclusive, are based upon the action of the trial court in overruling the-separate and several demurrers of the appellant to appellee’s complaint, and to counts 2, 4, 6, and 8 thereof. The demurrer in question sets up eleven grounds of demurrer. It is unnecessary to refer to the first, second, .third, fourth, and fifth ground of demurrer for’the reason that they are palpably bad, and were properly overruled.
The sixth ground of demurrer alleges that the claim sued on is barred by the statute of limitations.
The seventh and eighth grounds of demurrer are based upon the allegation that no itemized and verified claim of plaintiff’s demand was filed with the County Commission of Jefferson County, Alabama, within-twelve months from the date said claim was alleged to have arisen and accrued.
The ninth ground of demurrer alleges that the suit was not filed within twelve months after plaintiffs’ claim was disallowed by the county commission of Jefferson County.
The tenth and eleventh grounds of demurrer are obviously without merit..
It is sufficient to say that the statute of limitations is not properly-raised by a demurrer, limitations being a defense to be presented by a special plea. Sharp v. Clopton, 218 Ala. 140, 117 So. 647; Sovereign Camp, W. O. W., v. Carrell, 218 Ala. 613, 119 So. 640.
The plea of the general issue in short by consent with leave to give in evidence any matter, which if well pleaded would be admissible in defense of plaintiff’s action, is doubtless sufficient to raise the question of the action being barred by the statute of limitations of 12 months from the accrual of the cause of action and also the failure of plaintiffs and their deceased testator to present their claim for allowance to the court of county commissioners within 12 months from its accrual. Code 1923, § 228.
*292This court held, upon the original submission of this case, that it was not necessary for a claim for a balance of the salary or compensation of a public county officer for his salary or any balance due thereon to' be presented to the governing body of a county for allowance. We think that holding is sound. The salary or compensation here involved was fixed as provided by law and needed no presentation to the county commission of Jefferson County. Hasty v. Marengo County Bank, 204 Ala. 229, 86 So. 37; Ward v. State ex rel. Goldsmith, 17 Ala.App. 170, 82 So. 660; State ex rel. Holcombe v. Stone, 26 Ala.App. 226, 157 So. 452; Sarah Jeffers, as Ex’x, etc., v. Robert H. Wharton as President, etc., post, p. 428, 197 So. 352.
We therefore hold that sections 224, 225, 228 and 5680 of the Code 1923, respectively, are inapplicable to the claim here sued upon.
The above and foregoing are all of the questions presented upon this appeal, which were not fully discussed in the opinion filed upon the original submission of this cause and this court adheres to its former opinion in this case, save with respect to what was there said in regard to plaintiffs being mistaken with reference to their remedy by suit in assumpsit. In regard to that question this court is, of course, bound by the decision of the Supreme Court, by virtue of the statute.
It, therefore, follows that the trial court did not err in rendering judgment for the plaintiffs for the amount sued for. Judgment of the lower court is accordingly affirmed.
Opinion extended and corrected.
Affirmed.
239 Ala. 3.