Cameron County v. Fox
| Decision Date | 25 July 1931 |
| Docket Number | No. 8635.,8635. |
| Citation | 42 S.W.2d 653 |
| Parties | CAMERON COUNTY v. FOX et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Cameron County; J. E. Leslie, Judge.
Action by Cameron County against James J. Fox and another, in which defendants reconvened. From the judgment, both plaintiff and defendants appeal.
Reversed and remanded with directions.
Faulk & Abney, of Brownsville, for plaintiff.
Seabury, George & Taylor and West & Hightower, all of Brownsville, for defendants.
This action was brought by Cameron county against James J. Fox, tax collector of said county, and the surety on his official bond, to recover of him certain fees of office which he admittedly collected and is alleged to have unlawfully retained. Fox and his surety reconvened and sought to recover certain amounts Fox had paid over to the county, but which he claimed he was entitled to retain under the law.
In a trial without a jury the court found against the county as to its suit against Fox, and that the latter's claims against the county were sustained by the evidence, but were barred by limitation. Judgment was accordingly rendered that neither party recover, except as to costs, which were taxed against the county. All parties have appealed. The county will be designated as appellant, Fox as appellee, and his codefendant as the "surety."
The principal issues to be determined are summarized in appellant's brief as follows:
I. Prior to 1897 county officials, including tax collectors, received and appropriated to their own use all fees derived from the performance of their official duties. In that year, for the first time, the Legislature passed what is known as the Maximum Fee Bill," fixing the maximum salaries of such officers in the larger counties of the state, and requiring them to pay in to the county treasury all fees in excess of those amounts, after deducting certain commissions. Chapter 4, tit. 58, R. S. 1911, art. 3881 et seq. It has been definitely determined that counties having populations in excess of 15,000 inhabitants to be determined by the federal census of 1900 and thereafter were subjected to the provisions of the Maximum Fee Bill, beginning with the year 1902. Ellis County v. Thompson, 95 Tex. 22, 64 S. W. 927, 66 S. W. 48; Moorman v. Terrell, 109 Tex. 173, 202 S. W. 727; Sparks v. Kaufman County (Tex. Civ. App.) 194 S. W. 605.
The federal census accorded Cameron County a population of 16,095 in 1900, whereby said county was brought under the operation of the Maximum Fee Bill in 1902.
The succeeding federal census, of 1910, accorded Cameron county a population of 27,158, which did not have the effect of changing the classification of its officials under the provisions of the act in question. In 1913, however, the Legislature increased the minimum of population of counties to be exempt from the operation of the Fee Bill from 15,000 to 25,000, to be determined by the "last" (1910) federal census. Chapter 121, Gen. Laws 1913, Reg. Sess., p. 246 repealed by Acts 36th Leg. (1919), c. 158, re-enacted by Acts 38th Leg. (1923), c. 181 (now article 3900, R. S. 1925). In the meantime, however, in 1911 (Acts 32nd Leg., c. 48) the Legislature created Willacy county out of the territory until then embraced within the county of Cameron, so that approximately one-half of that territory was cut off into the county of Willacy. A witness, who was perhaps as well qualified to so testify as any individual could be in such a matter, testified that in his opinion "about" 2,500 of the inhabitants of Cameron county resided in the territory thus cut off into the new county, and from this testimony the trial judge found as a fact that it was "doubtful whether or not Cameron County as it thus existed after the creation of Willacy County had a population of 25000 people." Upon this finding the trial court concluded as a matter of law that under the act of 1913, exempting counties of less than 25,000 population from the operation of the Maximum Fee Bill, Cameron county was brought within that exemption, and that its officials were not required to account for the fees collected by them. We are of the opinion that the court erred in this conclusion.
The census of 1910 accorded the county a population of 27,158, thus clearly continuing it under the operation of the Fee Bill, as originally enacted and in force when the census of 1910 was taken and published. That population was 2,158 in excess of 25,000 fixed in the act of 1913. We do not think the expressed opinion of a witness that "about" 2,500 inhabitants of the county were cut off into the new county more than a year after the census was taken, should be given the effect of defeating the legislative intent of fixing the population of 25,000, to be ascertained by the census. Even if this mere opinion of a well-qualified witness was accurate, and should be given full effect, his testimony shows that a year after the census showed the population of the county to be 27,158, the creation of Willacy county out of the territory embracing Cameron county reduced the population by only 2,500. During the preceding decade the population of the county increased at the rate of 1,106 each year, and in the succeeding decade at the rate of 906 each year. At either rate the population of the county had increased sufficiently to sustain its position well above the minimum of 25,000 when Willacy county was created late in 1911, even though 2,500 of its inhabitants were excluded in 1911. No doubt the trial court properly inquired into the question of actual population, but the evidence adduced thereunder, as well as the court's finding thereon, were not sufficient to take the county out of the 25,000 class. We hold that appellant and his predecessors were amenable to the provisions of sections 10, 11, and 16 of the act in question, until that act was repealed in toto in 1919 (Acts 36th Leg. c. 158). It was re-enacted in 1923 (Acts 38th Leg. c. 181). We therefore sustain appellant's first proposition, and hold that Cameron county came under the operation of the Fee Bill in 1902, and has continuously remained thereunder.
II. In 1897 the Legislature passed an act (article 7691, Rev. St. 1911) in which it was provided that:
It appears from the record that appellee Fox, after he went into office in 1918, collected certain taxes delinquent for the year 1918 and prior year, and retained the $1 fee accruing to the tax collector under the terms of said provision. These fees so retained by him amounted to $8,718. The trial court held that the "officer who performed the services and/or the bulk of the services provided" for in said act "to earn the $1 delinquent cost items, is entitled to said fees," and that appellee Fox, "having acquired (by assignment) all the rights of his predecessor" in office during said period, was entitled to all of said fees, "as Cameron County has no claim or right to them." This holding was based upon the incorrect assumption that Cameron county was exempt from the operation of the Maximum Fee Bill until the year 1919.
It has been definitely decided that in counties operating under the Maximum Fee Bill, such as Cameron, the tax collector's fee of $1 provided for in the above-quoted article 7691, R. S. 1911, was required to be accounted for, and therefore could not be retained by the collector. Bitter v. Bexar County (Tex. Com. App.) 11 S.W.(2d) 163; Turner v. Barnes (Tex. Civ. App.) 19 S.W.(2d) 325; Id. (Tex. Com. App.) 27 S.W.(2d) 532.
This provision remained in force until the year 1923, when it was amended and became article 7331, R. S. 1925, under which the collector is not required to account for, but may retain, said fees, in addition to all other compensation accorded him by law.
It is provided in articles 3897 and 3894, R. S. 1925 () as follows:
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