Stephens County v. Hefner

• Citation: 16 S.W.2d 804
• Decision Date: 24 April 1929
• Docket Number: (No. 1251-4516.)
• Parties: STEPHENS COUNTY v. HEFNER.
• Court: Supreme Court of Texas

Page 804

16 S.W.2d 804

STEPHENS COUNTY v. HEFNER.

(No. 1251-4516.)

Commission of Appeals of Texas, Section A.

April 24, 1929.

Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit between Stephens County and Tom C. Hefner and others. From the judgment, the former appealed to the Court of Civil Appeals, which certified questions to the Supreme Court. Questions answered.

Goggans & Allison and S. J. Osborne, all of Breckenridge, and B. O. Baker, of Dallas, for appellant.

McCartney, Foster & McGee, of Brownwood, and Crate Dalton, of Dallas, for appellee.

CRITZ, J.

This case was originally submitted in Section B of the Commission, and the opinion hereto attached was written by Judge LEDDY of that section of the Commission.

We have carefully considered this case, and Judge LEDDY'S opinion reflects the views of this section of the Commission, and we therefore adopt the same as our opinion and recommend that the questions herein certified be answered as recommended in said opinion of Judge LEDDY hereto attached.

Certified Questions.

LEDDY, J.

The Court of Civil Appeals for the Eleventh Supreme Judicial District submits certified questions for the determination of the Supreme Court. Simply stated, the question to be determined is whether the tax assessor of Stephens county was exempted from the maximum salary provision contained in the Act of 1913, p. 246.

A proper determination of this question requires a review of legislation enacted upon the subject. Prior to 1897 there was no maximum salary provision for county officers. They were entitled to retain all fees of office collected by them. In 1897 the Legislature enacted a fee bill (Acts 1897, Sp. Sess. p. 5, § 10, amended Acts 1897, Sp. Sess. p. 42, § 1) fixing a maximum salary for all county officers, such provision being article 2495c, Sayles' Texas Civ. St. 1897. Article 2495d was a part of this act, and required such officers to make a sworn annual report to the district court of the amount of the fees charged and collected by them. Another provision of this act was article 2495i, which required such officers to keep an itemized statement of all fees charged and collected. The clear purpose of these requirements was to furnish a satisfactory method by which the various counties involved could make settlements with their officers in regard to the fees above the maximum amount the officer was allowed to retain. In order to safeguard the interests of the county in such fees, the grand jury was required to annually investigate the reports filed by such officers. In addition to having the benefit of the grand jury investigation of the correctness of the officers' reports, the counties were given the additional protection of having its officers, in making settlements under their reports, to be subject to the pains and penalties of perjury.

Section 17 of the Act of 1897, Sp. Sess. p. 11, which is article 3898, R. S. 1911, reads as follows: "The officers named in Article 2495c, in those counties having a population of 15,000, or less, shall not be required to make a report of fees as provided in Article 2493d, or to keep a statement provided for in Article 2495i."

This provision of the above act remained unchanged until the same was amended in 1913, Acts Regular Session, p. 246. The only change made in article 3898 (section 17, Act 1897) was to increase the population of the counties from 15,000 to 25,000, in which officers were exempt from making the report of fees collected as provided in article 3895, and from keeping the statement of fees charged and collected required by article 3894.

The act of 1897, as amended in 1913, was effective until 1919, at which time it was repealed by section 4 of the Act of 1919, Regular Session, p. 299, such repealing statute reading as follows: "That Article 3898, Revised Civil Statutes of 1911, as amended by Chapter 121, Acts 33rd Legislature, passed at its Regular Session be, and is hereby, in all things repealed."

After this repealing act had been in effect for four years, the Legislature, at its regular session in 1923 (Acts, p. 397) re-enacted article 3898 in the identical language as the same existed at the time of its repeal.

As section 17 of the Act of 1897 (article 3898, R. S. 1911) was in force as a part of the law of this state for a period of 22 years before it was repealed, and in view of the fact that the same was repealed and re-enacted in the identical language in which it had theretofore existed, a proper construction of the re-enacted law can be arrived at by ascertaining the construction placed upon this provision during the long period it was in force, prior to its re-enactment, by the courts, the Legislature, and the executive departments of the state.

In the interpretation of re-enacted statutes, Mr. Sutherland, in his excellent work on Statutory Construction, vol. 2, § 403, says: "The court will follow the construction which they receive when previously enforced. The Legislature will be presumed to know the effect which certain statutes originally had and by re-enactment to intend that they should again have the same effect."

In Johnson v. Hanscom, 90 Tex. 328, 38 S. W. 763, our Supreme Court, speaking through Mr. Justice Gaines, announced a similar rule in this language: "It is to be presumed that the Legislature knew of the construction that had been placed upon the text, and that if they were not satisfied with it they would have so changed the verbiage as to have shown clearly a contrary intention."

The rule so announced has been frequently held to apply to the re-enactment of a statute which has received a practical construction upon the part of those called on to execute it. Houston & T. C. R. Co. v. State of Texas, 95 Tex. 521, 68 S. W. 777; Galveston, H. & S. A. R. Co. v. State, 81 Tex. 602, 17 S. W. 67; Bloxham v. Consumers' Electric Co., 36 Fla. 519, 18 So. 444, 29 L. R. A. 507, 51 Am. St. Rep. 44; Commonwealth v. Grand C. B. & L. Ass'n, 97 Ky. 325, 30 S. W. 626; State v. Moore, 50 Neb. 88, 69 N. W. 373, 61 Am. St. Rep. 538.

It appears that the Attorney General's department, in the discharge of its duty in advising county officers, with one exception, has uniformly construed article 3898 as having the effect of exempting all officers in counties of less than the number of inhabitants specified therein from the maximum salary provision of the fee bill. The rulings of that department have been acted upon by public officers throughout this state for practically a quarter of a century. The single exception to the rule was made by the Attorney General in 1914. An examination of that opinion, however, discloses an admission by the then Attorney General that the effect of section 17 of the Act of 1897 was to exempt officers in counties of less population than 15,000 from the maximum salary provision of the act. It was asserted by the Attorney General that the amendment of 1913 had the effect of placing said officers under the maximum salary provision. The opinion does not cite, and we are left to conjecture, what particular provision of the Act of 1913 had this effect. After a most careful consideration of this act, we do not find any provision which in our opinion sustains the ruling of the Attorney General. In the succeeding administrations of that department, this opinion was overruled and the uniform construction theretofore placed upon said act was resumed, and such construction continued up to the date of the repeal of article 3898 by the Act of 1919. After this repeal it was held by the Attorney General that by reason thereof all county officers named in the fee bill were subject to the maximum salary provision.

When the Legislature in 1923 re-enacted article 3898, couched in the identical language in which it was a part of the statutes of this state for 22 years, it did so with presumptive knowledge of the fact that the latest ruling by the executive department of the state was that the effect of said provision was to exempt certain officers from the maximum salary provision, and that under the practical construction placed upon said article county officers in several hundred counties were retaining all of the fees collected by them on the theory that they were permitted to do so by such article; hence it must be assumed that the Legislature intended by the re-enactment of article 3898, unchanged in verbiage that it should be given the construction theretofore placed upon it by public officials throughout the state. If it had been intended that the re-enacted article should have a different effect, the Legislature no doubt would have used language too clear and plain to be misunderstood to indicate such intention.

In addition to the departmental construction this particular section of the Act of 1897 has been construed by the courts of this state. In every case in which this provision has received consideration it has been recognized that officers in counties of the population specified therein were not affected by the restriction on the amount of fees they were permitted to retain.

In the case of Stevens v. Campbell, 26 Tex. Civ. App. 213, 63 S. W. 161, insistence was made that, Gregg county having less than 15,000 population, the county judge would be under the old law which provided a commission for such officer in acting as ex officio county superintendent of public schools. The direct question here presented was only incidentally involved. In passing upon the question to be decided, the court said: "It is further insisted by appellants that inasmuch as Article 2495j of the Act in question [Sayles' Tex. Civ. St. 1897] provides that in counties having [a population of] 15,000 inhabitants or less, none of the officers named in Article 2495c [3881] shall be required to make a report of the fees collected by them annually, the County of Gregg is unaffected by the act, and is operating under the old law. This is practically true so far...