Board of Sup'rs v. Powell

Stevens J., delivered the opinion of the court. Dr. Eli Powell, appellee, as the duly appointed county health officer of Calhoun county appeared before the board of supervisors at their August, 1919, meeting and asked that his salary be fixed in accordance with the statute. The board of supervisors heard testimony and fixed the salary at three hundred and sixty dollars per annum. Appellee was dissatisfied at the amount and prayed for and obtained an appeal to the circuit court. The appeal was prosecuted by a bill of exceptions in accordance with section 80, Code of 1906 (section 60, Hemingway’s Code). The circuit judge heard the case, jury being waived, and rendered a judgment increasing the amount of the salary, and fixing the same at six hundred, dollars per annum. Prom this judgment the board of supervisors now prosecute an appeal. It is the contention of the county that the circuit judge • has no authority of law for fixing the salary of a county health officer; that this authority is vested alone in the board of supervisors, and the discretion of the board cannot be reviewed and reversed by the circuit court. Appellee, on the contrary, contends that under the authority of De Soto County v. Westbrook, 61 Miss. 312, 1 So. 352; Yandell v. Madison County, 81 Miss. 288, 32 So. 918, and Adams County v. Aikman, 97 Miss. 6, 52 So. 513, he had the right of appeal; that three hundred and sixty dollars per annum to be paid the county health officer of Calhoun county is unreasonably small; and that it was the duty of the circuit court to hear the testimony as presented by the bill of exceptions, and either affirm or reverse the judgment, and, if the judgment be reversed, enter such judgment as comports with right and justice. The "Westbrook Case is authority for the proposition that, while the board of supervisors is charged with the duty of fixing the salary of the county health officer, yet [672] the laws for the protection of the public health cannot be nullified, and. the, office cannot be abolished by fixing the salary so low that a competent physician would not accept the office. Such action is a nullity. The Yandell Case holds that the health officer cannot ignore the salary fixed byi the board of supervisors and sue upon a quantum meruit for special services to sick persons within the county. The Yandell Case was construed by the court in the Aikman Case; the court by Smith, J., observing: “That, as held in Yandell v. Madison County, 81 Miss. 291, 32 So. 918, he can receive no compensation except the salary fixed by the board.” Neither one of the cases mentioned justifies the circuit court in reviewing the discretion of the board of supervisors and changing the amount of the salary as fixed by the board, unless the action of the board in any given case is “an ouster by indirection of” the officer from the office which has been created and amounts virtually “to abolish the office.” But if the amount of salary as fixed by the board of supervisors is a material sum of money, and is not so small as to indicate an intention to ignore the law and abolish the office, then the amount so fixed is the measure of compensation, and the only measure of compensation, provided by law. As stated, the authority to fix the salary is vested in the board of supervisors, and exclusively in the board. If the circuit judge, on appeal,' could review the testimony, and differ from the board as to what constitutes a reasonable compensation, then in the last analysis the authority to fix the salary would rest with the circuit judges, and not with the boards of supervisors. The authority to appeal from the order of the board of supervisors in this case has not been challenged, and for the purposes of this opinion need not be considered. If the action of the board1 in any given case amounts [673] to a nullity (De Soto County v. Westbrook, supra), the law affords a remedy and awards just compensation. We cannot say that three hundred and sixty dollars per annum for the services of the county health officer in Calhoun county is so shocking to the conscience or unreasonably low as to abolish the office, and this, in our judgment, is the sole inquiry in the case at bar. It follows that the judgment of the learned circuit court will he reversed, and judgment entered here for appellant. Reversed, and judgment here for appellant.