Ellis County v. Thompson
| Decision Date | 09 January 1902 |
| Parties | ELLIS COUNTY v. THOMPSON. |
| Court | Texas Supreme Court |
Jack Beall and T. B. Williams, for plaintiff in error. Templeton & Harding and Finley, Etheridge & Knight, for defendant in error.
The earnestness which characterizes the presentation of this motion calls for notice by this court of the most important objections against the construction we have given to the statute in question. By inadvertence the sum of $167.50, collected by the successor of Thompson of the delinquent fees reported by the defendant, was charged against him in our statement of the account. This will be corrected.
Thompson collected $239.55 after he went out of office, and claims that he is entitled to 10 per cent. of that amount. Article 2495f, Sayles' Civ. St., provides: "All fees due and not collected as shown in the report required by article 2495d, shall be collected by the officer to whose office the fees accrued, and out of such part of delinquent fees as may be due to the county, the officer making such collection shall be entitled to ten per cent. of the amount collected by him." Thompson had ceased to be the "officer to whose office the fees accrued," and had no authority to collect the money after he went out of office. That duty devolved upon his successor, and the defendant is not entitled to 10 per cent. of the money which he voluntarily collected.
The defendant in error contends that the sum of $190.55, commission on fees collected by him, should not be charged as fees to be accounted for. Article 2495c, Sayles' Civ. St., reads thus: "The maximum amount of fees of all kinds that may be retained by any officer mentioned in this article as compensation for services shall be as follows." The phrase "fees of all kinds" embraces every kind of compensation allowed by law to a clerk of the county court, unless excepted by some provision of the statute. Article 2495g, Id., reads as follows: "It is not intended by this act that the commissioners' court shall be debarred from allowing compensation for ex-officio services to county officials not to be included in estimating the maximum provided for in this act, when in their judgment such compensation is necessary: provided, such compensation for ex-officio services shall not exceed the amounts now allowed under the law for ex-officio services; provided, further, the fees allowed by law to district and county clerks, county attorneys and tax collectors in suits to collect taxes shall be in addition to the maximum salaries fixed by this act." Article 2495k, Id., excepts certain fees of sheriffs from the operation of the law. The exceptions are so definite that by implication all fees not mentioned in the exceptions are excluded therefrom, and thereby included within the requirements of the act.
Counsel claim that the court failed to give proper effect to the amendment made by the legislature to section 10 of the act in question (Laws Sp. Sess. 1897, p. 8). The language of the original section pertinent to the questions is as follows: "The maximum amount of fees of all kinds that may be retained by any officer mentioned in this section shall be as follows: * * * In counties in which there were cast at the last presidential election 7,500 votes, the county clerk, an amount not to exceed $2,500, * * * and in addition thereto, one-fourth of the fees collected by him." Defendant's counsel assert that this language means that the clerk should first retain one-fourth of all fees, and then apply the three-fourths until he had received $2,500; but by the terms of the original section the fees might have been retained to the amount of $2,500, and then one-fourth of all fees collected might have been added "thereto,"—that is, to the $2,500 retained. The fallacy of defendant's construction is made manifest by the statement of the proposition. But the amendment introduces into the section the words "the excess of," equivalent to "surplus," which is defined by Bouvier thus: "That which is left from a fund which has been appropriated for a particular purpose; the overplus; the residue." Insurance Co. v. Parker, 34 N. J. Law, 479; People v. Board of Com'rs, 76 N. Y. 74. The fees constitute a fund devoted to the payment of the expenses of the office, and to ascertain the "excess" or "surplus" every item of expense mentioned in the act must be deducted. The effect of the amendment was not favorable to defendant's position, but we believe that the words "the excess of" were omitted by mistake in the original act, and that the intention was simply to cure the mistake. We have considered it as if in the original section 10.
Counsel for Thompson urge upon the consideration of this court the twelfth section of the act of 1897, which, applied to the facts, is, in substance, that when defendant in error desired aid in his office he was authorized to present an application to the county judge of Ellis county for authority to appoint deputies, accompanied by affidavit "that they were necessary for the efficiency of the public service," and at the instance of the county judge to make "a statement showing the need of such deputies." The county judge might authorize the appointment of such number "as, in his opinion, was necessary for the efficient performance of the duties of said officer," fixing the compensation "to be paid out of the fees of the office," and not to be "included in estimating the maximum salary" of the clerk. Before the enactment of that law, county clerks determined for themselves the question of employing deputies, and made contracts for their compensation, being personally liable therefor. But the state now determines the necessity for deputies, their number and compensation, and their salaries are payable out of the fees. The clerk is not personally liable further than to receive the fees and pay over the money to the deputies. Out of abundant caution, however, the provision that the compensation of deputies should not be included in estimating the maximum salaries—that is, not included in the $2,500—was inserted to make sure that the salaries of the deputies should not be a charge upon the clerk. If, however, we are mistaken, then the language must mean that, before the "one-fourth of the excess" is estimated, the maximum salary of the officer and the amount paid to deputies shall be deducted, leaving the excess contemplated by the statute. The amount paid to deputies having been deducted would not be included in estimating the "maximum salary," whether it be the fixed sum or includes the one-fourth of the excess. The word "estimating" means the act of ascertaining the salary, in which...
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