Binford v. Harris County

• Decision Date: 01 April 1924
• Docket Number: (No. 8613.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 261 S.W. 535
• Parties: BINFORD, Sheriff, v. HARRIS COUNTY et al.
• Court: Texas Court of Appeals

Page 535

261 S.W. 535

BINFORD, Sheriff, v. HARRIS COUNTY et al.

(No. 8613.)^*

Court of Civil Appeals of Texas. Galveston.

April 1, 1924.

Rehearings Denied April 10, 1924.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by T. A. Binford, Sheriff, against Harris County and others. From judgment rendered, both parties appeal. Affirmed in part, and reversed and rendered in part.

Amerman & Sears, of Houston, for plaintiff.

Andrews, Streetman, Logue & Mobley, of Houston, for defendants.

GRAVES, J.

Grounding his claim on article 1143 of our Code of Criminal Procedure, Binford, as sheriff thereof, sued Harris county for reimbursement for an aggregate of $1,308.75 paid out by him in December, 1923, and January, 1924, for guards and matrons necessarily employed in the safe-keeping of prisoners confined in the jail of the county, alleging that allowance therefor had been in due time and manner made by the commissioners' court, but that the auditor for the county had refused to approve them because of an opinion of the Attorney General of the state to the effect that this article 1143 had been repealed by article 1142 of the same Code, as amended in 1923 by the Thirty-Eighth Legislature (Acts 38th Leg. [1923] c. 181).

In answer the county admitted that the sheriff had paid out for the purposes stated the amount he so claimed, and that it had refused to reimburse him, but denied being legally liable to him for any part thereof. By counterclaim against him it further charged, however, that he was liable to and owed it — over and above an annual maximum of $5,000 he was entitled to receive and retain — under the following claims:

(1) On account of its having paid the sheriff $200 for safe-keep of prisoners for one month in 1923, which the county claimed should be accounted for as fees of office under article 1142, Code of Criminal Procedure, as amended at the regular session of the Thirty-Eighth Legislature in 1923.

(2) That the sheriff was required to account as a fee of office for the profit made by him on account of the support and maintenance of federal prisoners, and the fees received by him on account of such prisoners.

The cause was heard on an agreed statement of facts, which, with the omission of purely formal recitations, and such matters as have become immaterial upon appeal, was as follows:

"(2) As such sheriff, said T. A. Binford employed at the county jail of Harris county, Tex., guards and a matron during the last half of December, 1923, and the month of January, 1924, and paid therefor during the last half of December, 1923, $420, and for the month of January, 1924, $888.75, as alleged in plaintiff's petition and the exhibit attached thereto. Accounts therefor were properly presented to the auditor of Harris county, Tex., in order that the same might be approved and paid by the county commissioners' court of said county. The auditor of Harris county declined to approve said accounts, because of the ruling of the Attorney General of the state of Texas to the effect that the amendment of article 1142 of the Revised Statutes of the state of Texas, which went into effect on or about June 12, 1923, repealed article 1143 theretofore in effect, which provided for the payment of said guards. Proper application for the appointment of said guards was made by the plaintiff, and plaintiff was entitled to be paid therefor, unless said article 1143 of the Code of Criminal Procedure was repealed by the amendment to article 1142, as held by the Attorney General.

"(3) On December 26, 1923, the sheriff, having presented his account and claim therefor, and same having been duly allowed, was paid the sum of $200 for safe-keep of prisoners confined by him in the county jail of Harris county, in accordance with the provision of article 1142, Code of Criminal Procedure, as amended by the Acts of the Legislature of the State of Texas, Regular Session 1923, p. 405. The said sheriff has failed to account for said $200 so paid to him as fees of office, contending that the same did not constitute fees of office, and that he is not required to account for the same as such, it being the claim of the county in this case that such amounts so paid for safe-keep of prisoners constitute fees of office for which plaintiff is required to account.

"(4) During the fiscal year ending December 31, 1923, plaintiff received the following items from sources other than the county of Harris for the safe-keep, support, and maintenance of prisoners confined in the Harris county jail; * * * that during said year he received from the United States government or the officers thereof for the safe-keep, support, and maintenance of federal prisoners confined in said jail amounts as follows:

                June, 1923 ...........................  $571 20
                November .............................   382 40
                                                        _______
                                                        $953 60
                

"The sheriff has not included said profit in the amounts accounted for as fees of office, claiming that the same is not a fee of office for which he is required to account. The county claims that such profit is a fee of office for which the sheriff is required to account under the fee bill. * * *

"(6) At no time did the county allow any amounts to the sheriff upon his bills required by article 1148, C. C. P., for federal prisoners, and all payments were made direct to the sheriff by * * * the United States marshal.

"(7) That during 1923 the sheriff received * * * as fees for the federal prisoners (in addition to the 45 cents per day for their subsistence), the sum of $1 for each prisoner received, and $1 for each prisoner discharged, amounting in all to $185, which is included in the totals of $751.20 and $382.40.

"(8) That the sheriff for the fiscal year 1923 earned and collected the maximum provided by law."

On these facts the district court decided: (1) That article 1142 of the Code of Criminal Procedure, as amended by Acts Regular Session 1923, p. 405, did not repeal article 1143 theretofore in effect, providing for payment of guards and matrons in jails, and accordingly rendered judgment for appellant for the amount claimed on that account; (2) that the amount payable to the sheriff for safe-keep of prisoners under the first clause of article 1142, Code of Criminal Procedure, as amended by Acts Regular Session 1923, p. 405, is a fee of office, and the $200 received by the sheriff on that account should be accounted for by him as such fee of office; (3) that the jail fees, that is, the $1 charges for their commitment and release, aggregating $185, together with the profit realized from the support and maintenance of federal prisoners confined in jail, amounting to $272.72, making a total of $457.72, constitute fees of office, and should be accounted for as such.

Judgment having been rendered accordingly, both parties have appealed.

This court holds as follows: (1) It affirms the determination that article 1142 of the Code of Criminal Procedure as amended by the Thirty-Eighth Legislature in 1923 did not repeal pre-existing article 1143 of the same Code, and that the amount received by the sheriff for guard and matron hire at the jail was not a fee of office for which he was required to account; (2) it affirms the holding that the sums received on account of federal prisoners were fees of office, and had to be accounted for as such; (3) it reverses the holding that the amount payable to the sheriff for the safe-keep of prisoners under the first subdivision of article 1142 of the Code of Criminal Procedure, as amended by the Thirty-Eighth Legislature in 1923 was a fee of office to be accounted for.

There is no express intimation even in this amended article 1142 that its purpose was to in any way supersede or take the place of old article 1143; to read such an intent into it, therefore, resort must be had to implication; but it is a well known and universally followed rule that repeals by implication are not at all favored....