Bitter v. Bexar County

• Citation: 266 S.W. 224
• Decision Date: 22 October 1924
• Docket Number: (No. 7238.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: BITTER v. BEXAR COUNTY.
• Court: Court of Appeals of Texas

266 S.W. 224

BITTER v. BEXAR COUNTY.

(No. 7238.)^*

Court of Civil Appeals of Texas. San Antonio.

October 22, 1924.

Rehearing Denied November 19, 1924.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by County of Bexar against John A. Bitter, wherein defendant filed cross-bill. From judgment unsatisfactory to both parties, defendant appealed, assigning errors and plaintiff filed cross-assignments. Reversed and rendered.

Denman, Franklin & McGown, of San Antonio, for appellant.

Birkhead, Lang & Beckmann, F. Stevens, and D. A. McAskill, all of San Antonio, for appellee.

COBBS, J.

This suit was brought in behalf of Bexar county, appellee, against John A. Bitter, appellant tax collector of Bexar county, to recover $39,668.40, the aggregate amount of certain fees allowed by article 7691 of the Revised Civil Statutes of the state of Texas, 1911, it being alleged that appellant during the several fiscal years from 1914 to 1923, inclusive, had collected said fees and not paid them over to the county, but retained them under a claim that under the law he was not required to account for same as part of the excess fees to be paid over to the county under the maximum fee bill.

Appellant defended upon the ground that he had paid over to the county, from time to time, various amounts to which he was entitled as compensation, and for which he was not accountable to the county under said maximum fee bill, and which sums had been paid over by him in the erroneous belief that he was accountable therefor under said maximum fee bill. The amounts paid, which he pleaded as recoupments, credits, or offsets against appellee's demand herein, amounted to the sum of $3,727.41. The trial court allowed credit to appellant for certain of those amounts and refused allowance of others.

The case was tried by the court without a jury, and the court made findings of fact and conclusions of law. Thereupon the trial court rendered judgment on March 27, 1924, in favor of appellee against the appellant for the sum of $19,710.50, with legal interest from varying dates on the several amounts making up that total. Both parties objected to the judgment, and the appellant has filed assignments of error and the appellee has filed cross-assignments.

The first and most important question of law presented by appellant is that section 3 of House Bill 40 of 1915 (Laws 1915, c. 147 [Vernon's Ann. Civ. St. Supp. 1918, art. 7688a]) required no accounting for fees under the maximum fee bill, and that the amendment thereof of July 28, 1919, which went into effect on the 20th day of October, 1919 (Laws 1919, 2d called Sess. c. 64 [Vernon's Ann. Civ. St. Supp. 1922, arts. 7687a, 7688a, 7688b]), and made all fees of the office of the collector to be accounted for under the provisions of the maximum fee bill, as excess fees, is unconstitutional, so far as it affects the appellant's rights, because the title of the act does not appropriately embrace such purpose. That part of section 3, of the act of 1915 (House Bill No. 40) in respect to the collector's fees, provides as follows:

"The tax collector shall, in addition to the compensation and costs now allowed by law, be entitled for making up the delinquent record or supplements thereto where necessary under this act the sum of five cents for each and every line of yearly delinquencies entered on said delinquent record or supplement, such compensation to be paid out of the general fund of the county upon the completion of said record or supplement. The tax collector shall also receive a commission of 5 per cent. on the amount of all delinquent taxes collected in addition to the commissions now allowed him by law."

That portion of the amendment of 1919 in respect to the collector's fees, is:

"The tax collector shall, in addition to the compensation and costs now allowed by law, be entitled for the making up the delinquent record or supplements thereto, where necessary under this Act, the sum of five [.05c] cents for each and every line of yearly delinquencies entered on said delinquent record or supplement, the same not to exceed twenty-five cents in any one case, such compensation to be paid out of the general fund of the county upon a completion or approval of said record or supplement. The tax collector shall also receive a commission of 5 per cent. on the amount of delinquent taxes collected in addition to the commissions now allowed by law, but all such fees or commissions of the said tax collector, district attorney or county attorney under this act shall be accounted for as fees of office under provisions of the Maximum Fee Bill, as provided in chapter 4, title 58, of the Revised Civil Statutes of Texas 1911, as amended by chapters 121 and 142, Acts of the Regular Session of the Thirty-Third Legislature." Section 2 (Vernon's Ann. Civ. St. Supp. 1922, art. 7688a).

The portion of the title to the Act of 1919 that relates to fees of tax collectors must have been overlooked by appellant, as he only quotes from the first portion of the title to the act, whereas the latter portion of the caption not quoted is:

"An act to amend section 1 of chapter 147 of the acts of the regular session of the Thirty-Fourth Legislature relating to the duties of tax collectors to prepare and mail notices and statements of delinquent taxes against lands to the record owners thereof; the preparation and perfecting of the delinquent tax records of various counties and the compensation of the collector therefor." (Italics ours.)

The caption of the act broadly points to a law that provides for the compensation of the collector. The tax laws we are discussing herein relate mostly to fees and "compensation of the collector." No one, it seems to us, can be misled so as to conclude that the amendment was silent on the prescribed duties of the tax collectors and the prescribed compensation.

It was not necessary, as contended, to separately name fees in the title of the act when, as here, it sufficiently mentions tax collectors' compensation, and is broad enough to require the tax collector to account for "fees of office under provisions of the maximum fee bill as provided in chapter 4, title 58, of the Revised Civil Statutes of Texas of 1911, as amended by chapters 121 and 142 of the Acts of the Regular Session of the Thirty-Third Legislature." In such cases the Constitution should be given the most liberal construction, especially as the ultimate object and subject is in respect to fees and costs of officers charged with the duties of tax collector. Giddings v. San Antonio, 47 Tex. 548, 26 Am. Rep. 321; I. & G. N. Ry. v. Smith County, 54 Tex. 1; City of Austin v. McCall, 95 Tex. 565, 68 S. W. 791; Doeppenschmidt v. I. & G. N. Ry., 100 Tex. 534, 101 S. W. 1080; Newnom v. Williamson, 46 Tex. Civ. App. 615, 103 S. W. 656; Joy v. City of Terrell (Tex. Civ. App.) 138 S. W. 215; Lowery, Tax Col., v. Red Cab Co. (Tex. Civ. App.) 262 S. W. 147.

It has frequently been held by the courts of this state that none of the provisions of a statute should be regarded as unconstitutional where they relate, directly or indirectly, to the same subject, have a mutual connection and are not foreign to the subject expressed in the title. Austin v. Ry. Co., 45 Tex. 234; State v. Parker, 61 Tex. 265; Howth v. Greer, 40 Tex. Civ. App. 552, 90 S. W. 211; Singleton v. State, 53 Tex. Cr. R. 626, 111 S. W. 736.

In the case of Joy v. City of Terrell, supra, where it was contended that an act was void as in contravention of section 35, art. 3, of the Constitution, the court said:

"In determining what statutes follow the constitutional provision in question, the rule is that the courts will not pronounce a statute unconstitutional unless it is clearly shown, and both the statute and the constitutional provisions with which they are claimed to be in conflict will be liberally construed with the view of sustaining legislative action. Such a construction has been uniformly given by the courts of this and other states in the consideration of similar constitutional objections. Stone v. Brown, 54 Tex. 330. Therefore, even though some doubt should exist as to whether or not the statute under consideration embraces more than one subject, the validity of the same should be sustained upon the general principle that it should be held constitutional, unless clearly otherwise. Reasonable doubts, if any, should be resolved in favor of the statute."

In Texas & P. Ry. Co. v. Stoker, 102 Tex. 61, 113 S. W. 3, the title to the act passed on was as follows:

"An act providing for the appointment of official stenographers for district courts by the judges thereof, to report cases, and providing for the method of making up and filing statement of facts of all evidence introduced in the trial of causes, providing for the time within which such statement of facts must be filed, and providing for the appointment of special stenographers in county courts, for their compensation, and for making and filing of statements of fact in civil cases tried in the county courts."

The Supreme Court held that the act was constitutional, saying:

"The different provisions of the statute, as stated in the title, may all be considered properly as the regulation of one subject, which is the subject of the bill, viz., the preservation by the proper persons of the evidence taken in trials and of questions arising out of it, and the statement thereof in authentic form for the information of the appellate courts upon appeal. The provisions for the appointment and compensation of stenographers are incidental to and in aid of this general purpose and we see no good reason why all of the provisions could not properly be included in one bill."

A similar ruling was made in the case of Newnom v. Williamson, 46 Tex. Civ. App. 615, 103 S. W. 656, and in Howth v. Greer, 40 Tex. Civ. App. 552, 90 S. W. 211, it was held that an act creating corporation courts and regulating...