Harris County v. Charlton
| Decision Date | 24 June 1922 |
| Docket Number | (No. 3738.) |
| Citation | 243 S.W. 460 |
| Parties | HARRIS COUNTY v. CHARLTON, County Treasurer, et al. |
| Court | Texas Supreme Court |
Action by the County of Harris against James Charlton, County Treasurer, and others. From a judgment of the Court of Civil Appeals (234 S. W. 135) reversing a judgment in its favor, plaintiff brings error. Judgment of the district court affirmed in part and reversed in part, and judgment of the Court of Civil Appeals reversed, and cause remanded to the district court.
See, also, 243 S. W. 459.
E. R. Campbell and Louis, Campbell & Nicholson, all of Houston, for plaintiff in error.
George Charlton and Carothers & Brown, all of Houston, for defendants in error.
After having made some slight corrections in the statement of the case by the Court of Civil Appeals, we adopt same, as corrected, as a statement of the case.
The appellee, Harris county, instituted this suit against appellants, James Charlton, as county treasurer of the county, and also against the sureties on three of his official bonds as county treasurer, to recover $5,772.93 claimed to be due the county by Charlton. The cause was tried before the court without a jury, and judgment was rendered in favor of Harris county, the appellee, and against appellant Charlton, and all of the sureties on each of his three bonds as such county treasurer, for $1,819.98, which was for the following items:
Commissions collected from school fund ...... $1,001 50
Amount overpaid as interest on bonds ........ 11 75
A shortage alleged to have occurred somewhere
between November 23, 1906, and
November 30, 1910, the date being unknown .. 229 58
Interest from January 1, 1911 on all such
sums ....................................... 576 15
_________
Total ................................... $1,818 98
It was agreed by the parties in the trial court, and thereupon the trial court found as a fact that appellant Charlton was the duly elected and qualified treasurer of Harris county from November 23, 1906, to November 30, 1910, and that during that time he, as treasurer of the available and permanent school funds of the county, collected as commissions for handling same the sum of $1,499.02. It was further agreed, and the trial court found, that this amount was collected out of the available school fund, and that, in addition to this, Charlton retained out of the general funds belonging to Harris county commissions in the sum of $2,000 per year for each year during said period. The trial court further found that the said Jas. Charlton collected as commissions from the county of Harris for the year of 1907 the sum of $497.52 more than the $2,000 maximum allowed as provided by law, and that such collection was made more than four years before the filing of this suit by plaintiff in this cause, and that the claim of the county therefor to that extent was barred under the four-year statute of limitations. He deducted this amount from the $1,499.02 and gave judgment for the county of Harris for $1,001.50 on commissions wrongfully collected from the school fund, with 6 per cent. interest thereon from January 1, 1911.
The first assignment of error complains of the action of the trial court in allowing a recovery by Harris county for any part of the commissions collected and retained by Charlton for handling the school fund of the county; appellant claiming in that connection that the undisputed evidence showed that he had a legal right to the commissions so collected and retained by him for handling the school funds of the county, in that the $2,000 limitation on the county treasurer's fees does not apply to the fees collected as treasurer of the school fund.
Under this assignment, the proposition is asserted by appellant that article 3875, Revised Statutes, limiting county treasurer's compensation to $2,000, has no application to the fees collected by the county treasurer from school funds for services rendered by him in his ex officio capacity as treasurer of such funds. On the contrary, the counter propositions asserted by the appellee, Harris county, is that the limitation of $2,000 per annum as the maximum compensation to a county treasurer applies to and includes commissions received by him for handling such school funds, and that such limitation covers any and all fees and commissions received by such officer from any and all sources.
The Court of Civil Appeals held that the commissions allowed a county treasurer for handling public free school funds were not included in the limit of $2,000, and that the treasurer was entitled to retain them.
In order that our holding in this case may be clearly understood it is necessary that we briefly review the legislative enactments leading up to the present statutes on the issue involved here.
The office of county treasurer was created by the Legislature in 1846, and provision made for compensation for the treasurer.
In 1854 an act was passed providing for a comprehensive school system for the state, for the formation of school districts, and for school trustees, and for the control and management of school funds. It also provides that the county treasurer should give a separate bond for handling the school funds.
In 1876 an act was passed to fix and regulate the fees of officers of the state. Section 15 of this act reads as follows:
It could hardly be contended that the limitation of $3,000 in the above-quoted acts does not apply to all the subject-matter therein contained, including the commission of 1 per cent. for receiving and paying out all moneys belonging to the school fund. It is one complete whole; a single act and paragraph of the law.
In the revision of the statutes of 1879 the above-quoted section 15 was brought forward and incorporated in these articles, to wit:
It will be observed that in article 2405 the sum total allowed county treasurers for performing the services enumerated in section 15 of the Acts of 1876 and as brought forward in articles 2403 and 2404 in the revision of 1879 was reduced from $3,000 to $2,000 in accordance with an amendment to said article 2405 as reported by the codifiers. This amendment was enacted by the Legislature on April 2, 1879, and as amended was incorporated in the Revised Statutes of 1879 with articles 2403 and 2404.
The Legislature in 1879 also passed an educational act establishing a system of public free schools throughout the state. That act continued the county treasurer as the custodian of the free school fund for the county and provided that he should be allowed compensation as provided in article 2403.
In the school act of 1884, in connection with the other provisions of that act, the Legislature again provided that the county treasurer should receive compensation as provided in article 2403.
In 1891 the Legislature amended the act of 1884 and took away the discretion theretofore granted to the commissioners' court to allow a commission not to exceed 1 per cent., but arbitrarily fixed the commission allowed the treasurer at one-half of 1 per cent. for receiving and disbursing the school fund of the county.
The provisions of the statutes thus amended were set forth in the revision of the statutes of 1895 as articles 2467, 2468, and 2469, and have not been amended or changed since, and therefore control the issue here involved. In Vernon's Sayles' Texas Civil Statutes 1914 they are articles 3873, 3874, and 3875.
In order that it may be made apparent that the application of the limit of $2,000 in commissions allowed to the treasurer under article 2469, R. S. 1895, include commissions for handling the public free school funds, we quote the three articles as...
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