McInery v. City of Galveston , 1883 Tex. LEXIS 22 ( 1883 )

Watts, J. Com. App.

Appellant claims the fees accruing in the recorder’s court, upon the theory that this part of his compensation was established' by the charter, and could not be controlled by the council. Without undertaking to construe the various provisions of the charter touching the matter, we are of the opinion that even though the correctness of the construction contended for by him should be conceded, that still under the facts of this case the appellant could not maintain an action against the city to recover these fees.

Manifestly the salary was established at $4,000 a year, upon condition that this should constitute his full compensation, or rather upon the basis that he was not to receive any fees in addition thereto. In this way the alternative was presented the appellant, to either accept this munificent salary without fees, or else assert his right to the fees at such time that the council could, without injury to either party, establish the compensation he was to receive in addition to the fees. For two years, however, without objection, he received the salary, and, as required by the resolution, collected the fees and paid them into the city treasury. Under such circumstances appellant will be held to have acquiesced in the action of the council, and to have waived any right to the fees..

A recovery of the fees as claimed by him would work a flagrant infraction of one of the provisions of the charter. ¡No officer could receive a greater compensation than $5,000 per annum; appellant had received his salary of $4,000 per year, and now seeks to supplement that by a recovery of these fees to the extent of over $2,000 per annum.

Obviously the intention of the council was to limit the compensation of the clerk to the salary of $4,000, this to be in lieu of all fees, etc. Appellant has estopped himself from asserting any claim to fees. By his acts in receiving the salary and collecting the fees and paying the same into the city treasury, the council was induced to refrain from such action as was in its power, and by which it could have saved the city from loss. In establishing the salary for appellant’s second term, it is but reasonable to suppose the action of the council was induced by his acquiescence in accepting the salary, apparently in good faith and without objection, and asserting no claim to the fees.

There is nothing in the charter that would have prohibited appellant from, accepting the salary in lieu of all other compensation. And under the facts of this case, he will be held as having acquiesced in the action of the council in this respect; and that he is therefore precluded from recovering such fees.

Appellant’s claim for additional salary for the month of March, 1877, is based upon the idea, that as his term of office was for one year from the date of appointment, that the term extended beyond the end of the municipal year, and for that balance of his term he was entitled to the salary as established by the council in December, 1875. This is claimed to result from that part of the charter which in effect provides that the compensation as established by the council shall not be changed during the term of office. As shown by the record, the municipal year commenced March 1, 1876, and ended the last day of February, 1877. The council in December, 1875, established the compensation of the corporate officers, including the clerk, for that time. D uring that municipal year another charter took effect, and in establishing the compensation of officers for the municipal year commencing March 1, 1877, the council acted under and was governed by the provision of the new charter.

It does not seem to us that the provision of the charter of 1871 now under consideration is subject to the literal construction contended for by the appellant. It could only be maintained by strictly adhering to the language, and ignoring the subject matter, context and purposes of the act.

In Russell v. Farquhar, 55 Tex., 359, Chief Justice Moore said: “ While it is for the legislature to make the law, it is the duty of the courts to ‘try out the right intendment’ of statutes upon which they are called to pass, and by their proper construction to ascertain and enforce them according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the legislature to express its intent, and to follow which would pervert that intent.”

The language under consideration is that of a single clause in a long act, the purpose of which was to create and put into operation a city government for the most important city in the state. The intent of the legislature was to so arrange it, that, like an extensive and complicated machine, it would be perfect in all its parts. It would be doing violence to the most elementary rules of construction, to take an isolated provision of such an act, and, without regard to the context or the purposes of the act, give it an independent and literal construction according to the language used.

[Opinion approved January 19, 1883.]

That provision had reference to the financial system provided for in the act, and which is a part of the machinery of the city government, and should be construed with a view to the harmonious working of the whole system in all its parts.

The financial and municipal year was the same. The budget, as it had reference to the compensation of officers, was required to be made up and established by the council prior to the commencement of the municipal year. It was intended that the compensation thus established should be confined to the municipal year. This system requires that accounts be kept, and reports to be made at the end of the fiscal year, including appropriations, receipts and expenditures.

The construction, as contended for by appellant, would materially affect the harmonious working of the system, and lead to confusion in the accounts and reports of these expenditures, by thrusting the policies of one administration into that of its successor.

In our opinion, the limitation upon the power of the council, in changing and altering the compensation as established, was intended to be confined to the municipal year rather than the term of office.

It should also be observed that the charter now in force took effect August 2, 1876, and the council acted under its provisions in establishing the compensation of the clerk for the municipal year commencing March 1, 1877.

That office was created by statute, and is therefore within the control of the legislature. It could alter at pleasure the term of office, the mode of appointment or the compensation. Cooley’s Const. Lim., p. 336, and note 2.

A fair construction of the latter charter forbids the idea that it was intended that the compensation fixed under the former should extend beyond its own expiring municipal year.

We conclude, and so report, that the judgment of the court below ought to be affirmed.

Affirmed