Sparks v. Kaufman County

• Decision Date: 24 March 1917
• Docket Number: (No. 7673.)
• Citation: 194 S.W. 605
• Parties: SPARKS v. KAUFMAN COUNTY.
• Court: Texas Court of Appeals

194 S.W. 605

SPARKS v. KAUFMAN COUNTY.

(No. 7673.)

Court of Civil Appeals of Texas. Dallas.

March 24, 1917.

Rehearing Denied April 28, 1917.

Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.

Action by Henry Sparks against Kaufman County consolidated with an action by Kaufman County against Henry Sparks and others. From an affirmative judgment for Kaufman County, Henry Sparks appeals. Affirmed.

Lee R. Stroud and Wynne & Wynne, all of Kaufman, for appellant. G. O. Crisp, of Kaufman, and Bond & Bond, of Terrell, for appellee.

RASBURY, J.

Appellant sued appellee for certain excess fees paid appellee by appellant while county clerk of Kaufman county, under the belief that such excess fees belonged to the county, but which under the provisions of law it was alleged belonged to appellant; also for certain other special items which will be detailed at another point in this opinion. Another suit by appellee against appellant to recover from appellant certain excess fees withheld by appellant then pending was consolidated with the instant case, and both proceeded to trial simultaneously. There was trial before the court, who rendered judgment against appellant on his claim. Judgment was rendered for appellee on its claim against appellant for certain sums of money, aggregating $4,702.16, found to be due by appellant as excess fees, after allowing him credit for all fees actually paid into the county treasury and those due him and not so paid in. From such judgment this appeal is taken.

The court filed conclusions of fact, those essential being in substance these: Appellant was elected county clerk of Kaufman county in November, 1910, qualifying and assuming the office November 9, 1910, serving therein until November 12, 1912, at which time, he having been re-elected, he again qualified and assume the office, and served therein until November 10, 1914. Appellant for the first three fiscal years in office paid into the county treasury certain excess fees collected by him aggregating $1,780.30, being the fees sued for by him, and refused to pay any such fees for the fourth year. The excess fees sued for by him and actually paid into the treasury were not all the excess fees by him collected. Allowing appellant all fees to which he was entitled and crediting him with all fees paid into the county treasury, he was due appellee at trial $4,702.16. The approximate total of all excess fees collected by appellant was $6,482.46. As shown by the United States census of 1900, Kaufman county in the year 1910 had a population of 33,373 inhabitants. As shown by the same census for 1910, Kaufman county for the years 1911, 1912, 1913, and 1914 had a population of 35,322 inhabitants. At no presidential election next preceding either term of office so held by appellant did the vote cast thereat equal 3,000 votes. There are certain other facts found by the court which will be stated in connection with the issues they support.

The court found as matter of law that appellant was not entitled to recover the fees paid in by him, and that appellee was entitled to recover those not paid in by appellant for the reason that Kaufman county came within the provisions of the law limiting the fees of certain county officers, including county clerk, and that after allowing appellant his limit, to wit, $2,250, plus one-fourth of all fees in excess of that amount, he was due appellee the amount for which judgment was rendered.

The effect of the first assignment of error is to challenge the construction placed by the trial court upon the several statutory provisions popularly known as the "maximum fee bill." As argued by appellant, it is well known that the purpose of the law is to fix a maximum of compensation for certain officers in some of the counties in the state, and, for reasons not necessary to recite, to exempt those in certain sparsely inhabited counties from the provisions of the law. For the purpose of better understanding the issue presented we recite those provisions of the law applicable thereto in force during the period the items accrued. There have been some recent changes in the law not necessary to detail. The original act was passed in 1897. Gen. Laws, Sp. Sess. 25th Leg. c. 5, § 10, as amended by chapter 15, p. 42; 10 Laws Texas, 1482; Batts' Civ. Stats. art. 2495c. As amended, the act provided that the maximum of fees of office that could be retained by county clerks and others enumerated was an amount not in excess of $2,000 per annum, plus one-fourth of the excess above said amount, provided that "up to 1902, in counties in which there were cast at the last presidential election as many as 5,000 votes, and thereafter any counties shown by the national census of 1900 to contain as many as 25,000 [inhabitants]," such clerk and the others enumerated should receive not exceeding $2,250, plus one-fourth of the excess fees above said amount. By the act county clerks and others were required to make annually to the district court under oath a complete statement showing the fees collected and not collected, etc., by him, the deputies and assistants employed, together with the amounts paid them, any excess fees shown to have been collected to be paid into the county treasury, such reports to be submitted to the grand jury, etc. Sections 11 and 16. By the act it is also provided that county clerks and others named in section 10, in counties containing a population of 15,000 or less, based upon 5 inhabitants for each vote cast, shall not be required to make the report just mentioned. Section 17. The only change in the law applicable to the particular facts of the present case appears in article 3882, R. S. 1911, effective September 1st the same year, where it is declared that among others county clerks, in those counties shown by the national census to contain as many as 25,000 inhabitants, shall receive not exceeding $2,250 per annum, plus one-fourth of all fees in excess of said amount. As we have shown in our statement of the essential facts, the trial judge found that Kaufman county during the time appellant was in office contained by the national census, more than 25,000 inhabitants. He further found, as we have also shown, that at no presidential election during the time appellant held office did the votes cast thereat equal 3,000. As a consequence, based upon the last finding of fact, Kaufman county during appellant's incumbency in office had a population of less than 15,000, which exempted him from making the report required by sections 11 and 16 of the act. Counsel for appellant argues that, being exempt by the basis fixed by section 17 from making report of excess fees, he may, notwithstanding other provisions, retain such excess. The question depends upon the construction to be placed upon section 10 of the original act as amended and section 17. Section 10, it occurs to us, is easily understood. It first declares that county clerks and others shall receive as compensation $2,000 annually, plus one-fourth of all fees in excess of said amount and no more. By section 11 it is provided, in substance, among other things, that in the event the fees collected by such officer is less than his maximum compensation or insufficient to pay his deputies and assistants, the state shall not be responsible for such deficit, from which it is apparent that it was the purpose of the Legislature to allow such officer $2,000 and one-fourth of the fees in excess of that amount, in any event if the income from the office was sufficient. Section 10 next declares that such officer may have $2,250, plus one-fourth of the fees in excess of that sum, if the population of the county is as much as...