Ellis County v. Thompson

• Decision Date: 04 November 1901
• Parties: ELLIS COUNTY v. THOMPSON.
• Court: Texas Supreme Court

64 S.W. 927

ELLIS COUNTY v. THOMPSON.

Supreme Court of Texas.

November 4, 1901.

Error to court of civil appeals of Fifth supreme judicial district.

Action by Ellis county against T. F. Thompson. From a judgment of the court of civil appeals affirming a judgment in favor of defendant, plaintiff brings error. Reversed.

Jack Beall and T. B. Williams, for plaintiff in error. Templeton & Harding, for defendant in error.

BROWN, J.

From the opinion of the court of civil appeals we copy the following findings of fact: "T. F. Thompson was county clerk of Ellis county from December 1, 1897, to November 23, 1898. Ellis county cast as many as 7,500 votes at the presidential election held in 1896. Thompson collected in cash from all sources as fees earned by said office during the time he was clerk $6,886.70, less a credit of $136.10 for error and stamps allowed, leaving $6,750.60. He also collected commissions on fines, $190.55. There were delinquent fees at the time he went out of office, $1,294.61, of which he has since collected $239.55, and there is in the hands of the present clerk $167.50 not yet paid over to Thompson. Thompson paid out for assistants and deputies appointed as required by law, $4,151.59." In accordance with the requirements of the statute, Thompson made a report to the district court of Ellis county of fees collected by him during the year from the 1st day of December, 1897, to the 23d day of November, 1898, at which time his term of office expired. By this report he showed that nothing remained in his hands of the fees collected, after deducting those sums which, according to his construction of the statute, he was authorized to retain. Ellis county instituted this suit in the district court of that county against Thompson to recover of him the sum of $1,030.11, claimed to have been collected by him as fees during the year aforesaid, and which was in excess of all the different amounts to which he was entitled under the law. The trial court gave judgment that Ellis county take nothing by its suit, and for all costs, which judgment was affirmed by the court of civil appeals.

Defendant in error filed in this court a motion and plea by which he seeks to have this writ of error dismissed, because he alleges that the sum sued for by the plaintiff in error was alleged in its petition in the district court at a sum greater than $1,000 fraudulently, and for the purpose of giving to the supreme court jurisdiction of the case upon writ of error. The attorney for Ellis county, who prepared and filed the petition in the district court and has prosecuted the case since, filed in the court an answer to the motion and plea, in which the allegations of fraud are specifically denied. The affidavits presented by the defendant in error to sustain his motion do not evidence any intent on the part of Ellis county or its counsel to fraudulently give jurisdiction to this court of the suit then instituted. They simply establish a state of facts from which the counsel for Ellis county, if he had considered them in the light they are presented here, might have determined that his client was not entitled to recover as much as the sum he sued for; but these facts do not tend to establish the proposition that there was a fraudulent intent in putting the sum over $1,000. The plea and motion are therefore overruled.

The contention in this case arises over the construction of the following language employed in the act of the legislature approved June 16, 1897, known as the "Fee Bill," as amended by an act approved June 19, 1897:

"Sec. 10. That hereafter the maximum amount of fees of all kinds that may be retained by any officer mentioned in this section as compensation for services shall be as follows: * * * In counties in which there were cast at the last presidential election as many as 7,500 votes, * * * clerk of the county court, an amount not exceeding $2,500 per annum; * * * in addition thereto, one-fourth of the excess of the fees collected by [him] the officers respectively." Batts' Dig. art. 2495c.

"Sec. 11. The amounts allowed to each officer mentioned in section 10 of this act may be retained out of the fees collected by him under existing laws, but in no case shall the state or the county be responsible for the payment of any sum when the fees collected by any officer are less than the maximum compensation allowed by this act, or be responsible for the pay of any deputy or assistant. Each officer mentioned in the preceding section, and also...