Tom Green County v. Proffitt

• Decision Date: 24 July 1946
• Docket Number: No. 9574.,9574.
• Citation: 195 S.W.2d 845
• Parties: TOM GREEN COUNTY et al. v. PROFFITT et al.
• Court: Texas Court of Appeals

195 S.W.2d 845

TOM GREEN COUNTY et al. v. PROFFITT et al.

No. 9574.

Court of Civil Appeals of Texas. Austin.

July 24, 1946.

Appeal from District Court, Tom Green County, Fifty-first District; John F. Sutton, Judge.

Mandamus by C. D. Proffitt and Ralston P. Haun, official court reporters respectively for the 51st and 119th judicial districts, for themselves and in the nature of a class suit for other official reporters similarly situated, against Tom Green County and others to compel certain county officials to issue and pay certain salary warrants. From a judgment for petitioners, defendants appeal.

Judgment affirmed.

W. A. Johnson, County Atty., Tom Green County, of San Angelo, for appellants.

Robert G. Hughes, of San Angelo, for appellees.

McCLENDON, Chief Justice.

This case involves the constitutionality of the 1945 amendment to Art. 2326, Vernon's Ann.Civ.St., H.B. 555, Ch. 291, p. 460, Gen. Laws Reg.Ses. 49th Leg. H.B. 555 provides for annual salaries, payable monthly, of official court reporters of each district court, civil or criminal, and of each county court at law, civil or criminal, at not less than $2,400 nor more than $3,750, to be fixed and apportioned among the affected counties by the respective judges of those courts; but exempts from the provisions of the act counties having a population of not less than 220,000 nor more than 390,000. The specific question presented is whether this exemption, which applies only to Bexar and Tarrant counties, renders the act in effect a local or special law, and if so whether therefore prohibited by those provisions of Art. III, Sec. 56, Texas Constitution, Vernon's Ann.St. reading:

"Sec. 56. The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, * *.

"Regulating the affairs of counties * *.

"Creating offices, or prescribing the powers and duties of officers, in counties * *."

The respective district judges of the 51st and 119th judicial districts fixed the annual salaries of their court reporters and apportioned the monthly amount thereof payable by Tom Green and other counties in their districts. The Tom Green County officials declined to issue warrants for these amounts, on the ground that the act was unconstitutional for the above stated reason. This suit was thereupon brought by Proffitt and Haun, official court reporters respectively for the 51st and 119th judicial districts, against the county officials (County Judge, County Auditor and County Treasurer) of Tom Green County, for writs of mandamus to compel the issuance of such warrants. The suit was also brought as a class suit in behalf of some 115 court reporters situated similarly to plaintiffs. The trial was to the court upon agreed stipulation, and the judgment awarded the mandamus writs as prayed. It also provided that it should inure to the benefit of other court reporters situated similarly to plaintiffs. The stated officials have appealed.

Appellants' brief consists of an opinion (undated but numbered 0 — 6846) of the Attorney General's Department, addressed to the District Attorney of Dallas County, holding the act unconstitutional upon the above stated ground. The opinion cites the following cases in support of this view: Ft. Worth v. Bobbitt, 121 Tex. 14, 36 S.W. 2d 470, 41 S.W.2d 228; Womack v. Carson, 123 Tex. 260, 65 S.W.2d 485, 70 S.W.2d 416; Bexar County v. Tynan, 128 Tex. 223, 97 S.W.2d 467; Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000; Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084; Randolph v. State, 117 Tex. Cr.R. 80, 36 S.W.2d 484; Smith v. State, 120 Tex.Cr.R. 431, 49 S.W.2d 739; Fritter v. West, Tex.Civ.App., 65 S.W.2d 414, error refused; State v. Hall, Tex.Civ.App., 76 S.W.2d 880, error dismissed; Wood v. Marfa Independent School Dist., Tex.Civ. App., 123 S.W.2d 429, reversed on other grounds 135 Tex. 223, 141 S.W.2d 590; Jameson v. Smith, Tex.Civ.App., 161 S.W. 2d 520.

It may be conceded that under the holdings in these cases H.B. 555 falls within the classification of a local or special law, and would be invalid if it is governed by the quoted provisions of Const. Art. III, Sec. 56. That it is not so governed we think is clear for the following reasons:

1. An official court reporter or stenographer is not a public officer within the meaning of the Constitution; he is "not required to take the oath of office prescribed by the Constitution for all officers"; "he [is] simply and plainly an employé of the state." Lightfoot v. Lane, 104 Tex. 447, 140 S.W. 89, 90; Robertson v. Ellis County, 38 Tex.Civ.App. 146, 84 S.W. 1097. On June 19, 1945, the Attorney General's Department delivered a very able opinion on this point (No. 0 — 6491). It was addressed to the Assistant County Attorney of Coleman County and held that an official court reporter is not "a civil officer of emolument," within the meaning of Const. Art. XVI, Sec. 40, Vernon's Ann.St., which provides that "no person shall hold or exercise, at the same time, more than one civil office of emolument," and therefore "an official court reporter can legally qualify and act as city attorney at one and the same time." Robertson v. Ellis County, above, was cited and quoted from in extenso. Quite a number of authorities from...