Harris County v. Hammond

• Decision Date: 12 April 1918
• Docket Number: (No. 7635.)
• Citation: 203 S.W. 445
• Parties: HARRIS COUNTY v. HAMMOND et al.
• Court: Texas Court of Appeals

203 S.W. 445

HARRIS COUNTY v. HAMMOND et al.

(No. 7635.)

Court of Civil Appeals of Texas. Galveston.

April 12, 1918.

On Motion for Rehearing, May 2, 1918.

Appeal from District Court, Harris County; Henry J. Dannanbaum, Judge.

Suit by the County of Harris against M. F. Hammond and others. From the judgment rendered, plaintiff appeals. Affirmed in part and reversed and rendered in part.

Jno. H. Crooker and Fisher, Campbell & Amerman, all of Houston, for appellant. Andrews, Streetman, Burns & Logue and R. W. Franklin, all of Houston, for appellees.

PLEASANTS, C. J.

This suit was brought by appellant against appellee Frank Hammond, sheriff of Harris county, and his official bondsmen, for an accounting of fees and other amounts received by him as sheriff of said county during the years 1915 and 1916, and for recovery of the amounts so received by him in excess of the maximum compensation of $5,000 allowed him by the statute commonly known and designated as the "Fee Bill."

The principal items involved in the controversy, and which the sheriff contends are not fees of office for which he is required to account under the provisions of the fee bill, are the amounts allowed and paid him by the commissioners' court of Harris county for the safe-keeping and support of county prisoners. These amounts were alleged to be $23,621.60 for the year 1915, and $26,726.40 for the year 1916. The next largest amount claimed by the county was the sum of $1,500 fees in tax suits earned by the sheriff in 1915 and collected by him in 1916.

The trial court sustained an exception interposed by the defendants to the claim of the county that sums allowed the sheriff by the commissioners' court for the safe-keeping and support of prisoners were fees of office in the purview of the fee bill, and should be reported and accounted for under the provisions of the statute. When this exception was sustained the county amended its petition, and alleged that it was the duty of the sheriff to expend entire amounts allowed him by the commissioners' court for that purpose in the safe-keeping, support, and maintenance of the county prisoners; that the whole of said amount had not been so expended; and that the sheriff had procured the allowance and payment of his claim for said amounts by the commissioners' court by falsely representing to said court that he had so expended said amounts. This amendment further alleged that the claims were allowed by the commissioners' court under a mistake of fact, and prayed that the sheriff be required to render an account showing the sums actually expended by him in the safe-keeping, support, and maintenance of prisoners.

The trial court sustained exceptions to the amendment on the ground that the allowance and payment of the account by the commissioners' court was a judgment, and that plaintiff's allegations of fraud and mistake were not sufficient to authorize a reopening of the question determined by such judgment. Defendant's exceptions to the plaintiff's claim for an accounting of the fees earned and collected by the sheriff in tax suits were overruled. Other similar items involved in the controversy will be hereinafter mentioned and disposed of.

Appellant's first assignment of error is as follows:

"The court erred in sustaining the special exception of the defendants, designated in their original answer as paragraph (a) of subdivision IV, and in holding in effect that the amounts paid the sheriff for the safe-keeping, support, and maintenance of prisoners are not `fees' of office, but `charges,' and that the sheriff is entitled to receive and to retain the entire amount allowed him by the commissioners' court for the safekeeping, support, and maintenance of prisoners, and is not required to take the same into account in arriving at his maximum salary, after taking credit for the actual cost to him incident to the service rendered.

"Said ruling was error in this, that the law does not contemplate that the sheriff should make a profit out of the feeding of prisoners in addition to the maximum salary allowed by law, but that the amounts allowed him for the safe-keeping, support, and maintenance of prisoners are paid him by virtue of his office, and all such amounts must be accounted for under the `Maximum Fee Bill,' after deducting his actual expense in performing this duty, as provided in article 3897 of the Revised Statutes of Texas."

Under this assignment it is urgently insisted that the term "fees of all kinds," used in article 3881, Vernon's Sayles' Texas Civil Statutes, embraced every kind of compensation allowed by law to an officer which is not expressly excepted by some statutory provision; and, since the allowance to sheriffs for board and safe-keeping of prisoners are not so excepted, such allowances are within the purview of the "fee bill" statute, and must be reported and accounted for by sheriffs in accordance with the provisions of that statute.

The first act of our Legislature limiting the amount of fees which county officers could retain as compensation for their official services was passed in 1897. This act as passed did not fix the maximum amount of fees which sheriffs were allowed to retain, but contained provisions exempting certain sums allowed sheriffs from the provisions of the act requiring fees of officers to be reported and accounted for. Among other receipts of sheriffs mentioned in these exceptions were "all sums received from the county for the safe-keeping, support, and maintenance of prisoners confined in jail." The only reasonable explanation of the fact that exceptions are found in a bill which does not purport or attempt to limit the compensation of sheriffs is that the bill as introduced did include sheriffs with the other county officers whose maximum compensation was fixed by its provisions, and in its passage through the Legislature it was amended by the provision fixing the maximum amount of fees sheriffs were allowed to retain being stricken out while the exceptions above referred to were left in the bill. It is not material, however, how the thing happened; the fact is from 1897 to 1913 we had a statute excepting certain sums received by sheriffs from the provisions of the statute fixing the maximum compensation of some county officers, but not the compensations of sheriffs.

In 1913 the maximum fee bill was amended by including sheriffs in the list of county officers affected by the provisions of the bill. The statute was further amended by eliminating therefrom the exceptions before mentioned contained in the original act of 1897. The provisions of the statute, the construction and application of which must determine the questions presented by this appeal, are as follows:

Article 3881 provides:

"Hereafter the maximum amount of fees of all kinds that may be retained by any officer mentioned in this section (article) as compensation for services shall be as follows," etc.

Article 3888 provides:

"The amounts allowed to each officer mentioned in articles 3881 to 3886 inclusive, may be retained out of the fees collected by him under existing laws," etc.

Article 3889 provides:

"Each officer named in this chapter shall first, out of the fees of his office, pay or be paid the amount allowed him under the provisions of this chapter, together with the salaries of his assistants or deputies. If the fees of such officer collected in any year be more than the amount needed to pay the amount allowed such officer and his assistants and deputies, the same shall be deemed excess fees, and of such excess fees such officer shall retain one-fourth. All amounts received by such officer as fees of his office besides those which he is allowed to retain by the provisions of this chapter shall be paid into the county treasury of such county."

Article 3894 provides:

"It shall be the duty of those officials named in articles 3881 to 3886, and also the sheriffs, to keep a correct statement of the sums coming into their hands as fees and commissions, in a book to be provided by them for that purpose, in which the officer at the time when any fees or money shall come into his hands shall enter the same."

Article 3895 provides:

"Each officer mentioned in articles 3881 to 3886, and also the sheriff, shall, at the close of each fiscal year, make to the district court of the county in which he resides a sworn statement showing the amount of fees collected by him during the fiscal year, and the amount of fees charged and not collected, and by whom due," etc.

Article 3897 is as follows:

"At the close of each month of his tenure of such office, each officer whose fees are affected by the provisions of this act shall make as a part of the report now required by law, an itemized and sworn statement of all the actual and necessary expenses incurred by him in the conduct of his said office, such as stationery, stamps, telephone, traveling expenses, and other necessary expense. If such expense be incurred in connection with any particular case, such statement shall name such case. Such expense account shall be subject to the audit of the county auditor, and if it appear that any item of such expense was not incurred by such officer, or that such item was not necessary thereto, such item may be by such auditor or court rejected, in which case the correctness of such item may be adjudicated in any court of competent jurisdiction. The amount of such expense, referred to in this paragraph, shall not be taken to include the salaries of assistants or the deputies which are elsewhere herein provided for. The amount of such expense shall be deducted by the officer in making each such report, from the amount due, if any due, by him to the county under the provisions of this act."

Article 3903 provides for the appointment of deputies, the fixing of their salary, and the deduction of their salaries from the maximum amount allowed to the various officers under the fee bill.

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