Wood County v. Leath , 1918 Tex. App. LEXIS 638 ( 1918 )

The trial court thought the commissioners' court meant by the order of February 11, 1915, to provide compensation for the county treasurer, not to exceed $1,200 per annum, by a commission of 2 1/2 per cent. on moneys received and paid out by him. The trial court also thought the other orders were susceptible of a like construction, except that by the terms of the one dated February 16, 1912, the commissions to be paid were not to exceed $1,500; but he nevertheless construed them as showing the intention of the commissioners' court to be:

"To fix and provide a rate of commission ultimately to be determined by the (commissioners') court by the amount of receipts and disbursements per annum, which would produce and provide a sum and commission not to exceed the amount as provided in said orders, respectively, for one year."

We agree it appeared that the intention of the commissioners' court was to provide compensation for the county treasurer by a commission on moneys received and paid out by him, but we do not agree that the conclusion reached by the trial court that the order of February 11, 1915, was void because it limited the amount of the commission to $1,200 was correct; nor do we agree that the conclusion reached by the trial court that the other orders were void, for the same reason, and also because same did not fix the rate of the commission to be paid the treasurer, was correct.

It appears from the record that the conclusions of the trial court were based on Montgomery Co. v. Talley, 169 S.W. 1141, and Smith v. Wise Co.,187 S.W. 705.

The Court of Civil Appeals held the order dated March 30, 1910, in question in the Talley Case, to be void because it was an attempt by the commissioners' court to compensate the county treasurer by means of a salary it fixed. The other order (the one dated June 8, 1911) in question in that case undertook to fix the compensation of the treasurer at one per cent., not to exceed $600 per annum, however. For the year beginning November 14, 1911, and ending November 13, 1912, the treasurer retained $611.81, which was $11.81 more than the maximum amount of commissions provided by the order. The Court of Civil Appeals did not determine that the commissioners' court was without power, having fixed the rate of commission to be paid the treasurer at one per cent., to provide that the total of that commission should not exceed $600 per annum. What the Court of Civil Appeals thought about that matter was not indicated by anything in its opinion affirming a judgment for $11.81 in favor of the county, except the statement therein as follows:

"We think the trial court properly held that appellee had not converted any moneys of the county, and that the commissions retained by him, except the $11.81 excess for the year beginning November 14, 1911, and ending November 13, 1912, were allowed him by law."

If the statement, in view of the fact that Talley was not complaining of the judgment against him for the $11.81 excess over $600, should be said to have indicated what the court thought about the validity of the order, it was that it was not invalid because it understood otherwise than by a percentage on moneys he handled to limit the compensation of the county treasurer to a less sum than that named in the statute.

In the other case referred to, Smith sued Wise county for a balance he claimed to be due him for his services as county treasurer from November 10, 1910, to November 16, 1914. It appeared that on February 16, 1907, the commissioners' court made an order fixing the compensation of the county treasurer from November 28, 1906, to November 28, 1907, at such a commission as would amount, when added to all other sums received by him, to $1,600, and no more, for that year, and from November 28, 1907, at a commission of "1 3/4 per cent. for receiving and 1 3/4 per cent. disbursing county funds"; and thereafterwards made other orders as follows: February 12, 1909. That the county treasurer should "receive the same compensation that he received for the last two years, being $1,600 per year." February 17, 1911. That "the treasurer's salary be $1,600 per year, the same as last year." February 11, 1913. That the treasurer be allowed a "salary not to exceed $1,400." The Court of Civil Appeals held all of the orders except the one dated February 16, 1907, to be void because attempts by the commissioners' court to compensate the treasurer by means of a salary thereby fixed. As a writ of error was refused in the case, it must be assumed that the Supreme Court approved as correct the construction given to the orders. But we do not understand that the ruling in that case, so far as stated, was regarded by the trial court, or is regarded by appellees, as decisive of anything in this case. Whatever may be said to have been the meaning of the orders in question in that case, it Is clear enough that the orders in question here were not attempts by the commissioners' court to compensate appellee by means of a fixed salary. In the Smith Case the majority of the court, while declaring in their main opinion that they did not find it necessary to decide the question, expressed a doubt about the authority of the commissioners' court "to fix a maximum compensation below that prescribed by statute, except as it may be limited by the rate of commission fixed," and in their opinion on a motion for rehearing, having resolved the doubt, specifically held that the commissioners' court was without such authority. Justice Dunklin thought:

"That an order of the commissioners' court fixing a maximum of fees to be retained at a certain sum less than the maximum of $2,000 fixed by the statute, without fixing the rate of commissions, would be valid, for in that event the maximum rate of commissions provided by the statutes would govern, and the effect of such an order would be that the treasurer would be allowed to retain commissions at that rate until the maximum amount so fixed by the order should be collected, and thereafter the treasurer would receive nothing for his services."

It is plain that the Talley Case is of no value in determining this one. It is also plain that if the conclusion reached by the majority of the Court of Civil Appeals in the Smith Case, that the commissioners' court was without power to fix the maximum compensation of a county treasurer below that named in the statute, "except as it may be limited by the rate of commission fixed," was correct, the case before us has been properly decided. But we do not agree that that conclusion was correct if it was that the rate must be expressed in the order fixing the compensation; and in view of the fact that the Court of Civil Appeals determined the question when, as they stated, it was necessary they should do so, we do not think the refusal of a writ of error should be regarded as an approval by the Supreme Court of the ruling made. Therefore we do not feel bound by the decision in that case. We are of opinion the view taken by Justice Dunklin of the statute is the correct one.

The purpose of the Legislature in providing that county treasurers should be compensated by means of a commission on moneys received and paid out by them, and in prescribing both a maximum rate and total amount as limits beyond which the commissioners' court should not go in fixing such compensation, plainly was to insure adequate, and only adequate, compensation to each county treasurer according to the work required of and the responsibility imposed upon him in discharging the duties of his office. The Legislature thought the services of any county treasurer, however great the amount might be of the moneys received and disbursed by him annually, would not be worth exceeding $2,000, so they declared by article 3875 that no county treasurer should be allowed exceeding $2,000 per annum for his services. The Legislature thought the services of a county treasurer who received and paid out less than $80,000 annually would be worth proportionably less, according to the amount of the moneys he handled, than $2,000; so they declared by article 3875 that no county treasurer should be allowed for his services exceeding 2 1/2 per cent. on the moneys received and disbursed by him. Had the Legislature prescribed only a maximum rate, say of 2 1/2 per cent., it would have been within the power of the commissioners' court to have allowed the county treasurer who handled, say, $200,000 annually, compensation amounting to $5,000 per annum. Had the Legislature prescribed only a maximum amount, say of $2,000 per annum, it would have been within the power of the commissioners' court to have allowed a county treasurer who handled, say, $50,000, annually as much as $2,000 per annum for his services. It seems to us that no order of the commissioners' court which in its effect conforms to the purpose of the Legislature should be held to be invalid. As each of the orders in question here does that, we think the trial court erred when he held them, severally, to be void. Each of the orders clearly shows the purpose of the commissioners' court, conformably to the statute, to have been to compensate appellee by means of a commission on moneys handled by him, and not by a sum fixed as a salary; for it is plain that, had 2 1/2 per cent. (the maximum of the commission authorized by the statute) on the amount of the moneys received and paid out by appellee amounted to less than the sums named in the orders, appellee would have been entitled, by virtue of the orders, to receive only the sum representing 2 1/2 per cent. on the moneys handled by him, and not the sums specified in the respective orders.

We think the judgment should be reversed, and that judgment should be here rendered that appellee take nothing by his suit against appellant, and it will be so ordered.