Ellis County v. Thompson , 95 Tex. 22 ( 1901 )

The earnestness which characterizes the presentation of this motion calls for notice by this court of the most important objections against the construction we have given to the statute in question.

By inadvertence, the sum of $167.50, collected by the successor of Thompson of the delinquent fees reported by the defendant, was charged against him in our statement of the account. This will be corrected.

Thompson collected $239.55 after he went out of office and claims that he is entitled to 10 per cent of that amount. Article 2495f. Revised Statutes, provides: "All fees due and not collected, as shown in the report required by article 2495d, shall be collected by the officer to whose office the fees accrued, and out of such part of delinquent fees as may be due to the county, the officer making such collection shall be entitled to 10 per cent of the amount collected by him." Thompson had ceased to be the "officer to whose office the fees accrued" and had no authority to collect the money after he went out of office. That duty devolved upon his successor; and the defendant is not entitled to 10 per cent of the money which he voluntarily collected.

The defendant in error contends that the sum of $190.55, commission on fees collected by him, should not be charged as fees to be accounted for. Article 2495c, Revised Statutes, reads thus: "The maximum amount of fees of all kinds that may be retained by any officer mentioned in this article as compensation for services shall be as follows." The phrase, "fees of all kinds," embraces every kind of compensation allowed by law to a clerk of the county court unless excepted by some provision of the statute. Article 2495g, Revised Statutes, reads as follows: "It is not intended by this act that the commissioners court shall be debarred from allowing compensation for ex officio services to county officials not to be included in estimating the maximum provided for in this act, when in their judgment such compensation is necessary; provided, such compensation for ex officio services shall not exceed the amounts now allowed under the law for ex officio services; provided, further, the fees allowed by law to district and county clerks, county attorneys and tax collectors in suits to collect taxes shall be in addition to the maximum salaries fixed by this act." Article 2495k, Revised Statutes, excepts certain fees of sheriffs from the operation of the law. The exceptions are so definite, that, by implication, all fees not mentioned in the exceptions are excluded therefrom and thereby included within the requirements of the act.

Counsel claim that the court failed to give proper effect to the amendment made by the Legislature to section 10 of the act in question. The language of the original section pertinent to the questions is as follows; "The maximum amount of fees of all kinds that may be retained by any officer mentioned in this section shall be as follows: * * * In counties in which there were cast at the last presidential election 7500 votes, the county clerk, an amount not to exceed $2500, * * * and in addition thereto, one-fourth of the fees collected by him." Defendant's counsel assert that this language means that the clerk should first retain one-fourth of all fees and then apply the three-fourths until he had received $2500; but by the terms of the original section, the fees might have been retained to the amount of $2500, and then one-fourth of all fees collected might have been added "thereto," that is, to the $2500 retained. The fallacy of defendant's construction is made manifest by the statement of the proposition. But the amendment introduces into the section the words "the excess of," equivalent to "surplus," which is defined by Bouvier thus: "That which is left from a fund which has been appropriated for a particular purpose; the overplus; the residue." Insurance Co. v. Parker, 34 N.J.L. 479; Insurance Co. v. Commissioners, 76 N.Y. 74. The fees constitute a fund devoted to the payment of the expenses of the office and to ascertain the "excess," or "surplus," every item of expense mentioned in the act must be deducted. The effect of the amendment was not favorable to defendant's position, but we believe that the words "the excess of" were omitted by mistake in the original act, and that the intention was simply to cure the mistake. We have considered it as if in the original section 10.

Counsel for Thompson urge upon the consideration of this court the twelfth section of the Act of 1897, which, applied to the facts, is in substance that when defendant in error desired aid in his office, he was authorized to present an application to the county judge of Ellis County for authority to appoint deputies, accompanied by affidavit "that they were necessary for the efficiency of the public service;" and at the instance of the county judge, to make "a statement showing the need of such deputies." The county judge might authorize the appointment of such number "as in his opinion was necessary for the efficient performance of the duties of said officer," fixing the compensation, "to be paid out of the fees of the office," and not to be "included in estimating the maximum salary" of the clerk.

Before the enactment of that law, county clerks determined for themselves the question of employing deputies and made contracts for their compensation, being personally liable therefor. But the State now determines the necessity for deputies, their number and compensation, and their salaries are payable out of the fees. The clerk is not personally liable further than to receive the fees and pay over the money to the deputies. Out of abundant caution, however, the provision that the compensation of deputies should not be included in estimating the maximum salaries, — that is, not included in the $2500, — was inserted to make sure that the salaries of the deputies should not be a charge upon the clerk. If, however, we are mistaken, then the language must mean that before the "one-fourth of the excess" is estimated, the maximum salary of the officer and the amount paid to deputies shall be deducted, leaving the excess contemplated by the statute. The amount paid to deputies having been deducted would not be included in estimating the "maximum salary," whether it be the fixed sum or includes the one-fourth of the excess. The word "estimating" means the act of ascertaining the salary, in which the compensation for deputies must not be included; that is, must be deducted before the estimate is made. Learned counsel fail to show how the amount allowed for deputies is excluded from the estimate of the maximum salary according to their interpretation. Let us try the position by a statement. The whole amount of fees collected after deducting $167.50 is $7180.74. The $2500 is fixed; therefore not to be estimated; and we subtract that sum, leaving $4680.74, which includes $4151.59 paid deputies. The one-fourth of the excess is to be ascertained, but it can not be computed on $4680.74, because that would include the pay of deputies "in estimating" the one-fourth; hence we must deduct $4151.59 in order to exclude it from the estimate, which would leave $529.15, the excess of which one-fourth is to be taken.

The purpose for which the law was enacted is a matter of prime importance in arriving at a correct interpretation of its terms. If it were true, as claimed, that the object of the Legislature in enacting the law was to enlarge the rights of the officers named, it should be construed so as to accomplish the legislative intent, and our conclusion would not be correct, because it is not reached from that view point. Before the enactment of that statute, the officers received and appropriated to their own use all fees derived from the performance of their official duties, and their interests would have been best served by leaving the law as it was, as was done with counties having a population of 15,000 or less. Where the fees do not amount to the maximum fixed for the officer, he gets no more than the fees yield; if they exceed the maximum allowed, the officer must account for the excess, limiting the existing rights of officials in the fees instead of enlarging them. The Legislature undertook to regulate this matter so as to give to each officer, out of the fees collected by him, a reasonable compensation for the services rendered, to make the offices self-sustaining, and to apply the excess of fees to public use. To accomplish this end, the business of the offices named is placed strictly on the basis of a public service, and the fees are treated as a part of the public revenue to be received by the officer and accounted for as directed. So marked is this feature of the law that the officer can not remit a fee. The provisions for appointing deputies was made to provide for the contingency that the duties might be greater than the officer could perform and is based upon the inability of the officer to do the work, and that the fees would be sufficient to pay the deputies, and the number to be appointed would be regulated by the work to be done and the probable yield of the fees. Placing the authority to determine the number and pay of deputies with the county judge guards the fund against extravagance, while the deputies are protected against exactions of the principal officer by prohibiting him, under severe penalties, to retain any part of the amount allowed them or to pay to them less than the salary fixed by the county judge. Sec. 14, p. 11, Laws 1st Spec. Session, 1897.

Whether it be a wise or foolish policy, the Legislature has clearly emancipated the deputies as employes of the principal officer and has relieved that officer from personal liability to the deputies. What would be their respective rights in case the fees would not compensate principal and deputies is not before the court. When the services of principal and deputies have been paid for, if there be an excess, the law generously gives one-fourth to the officer. The fees being collected from the public, the amount in excess of fair compensation for services rendered ought to be returned to the public, which is done by turning it into the county treasury as a part of the county fund.

Counsel for Thompson plant themselves upon what they call the literal meaning of section 10 of the Act of 1897 and seek to subordinate everything to that. The words of section 10, unaided, designate no sum nor furnish any rule by which to determine the excess upon which to estimate the one-fourth; it would be necessary to resort to construction by supplying words implied and necessary to express the meaning, — according to the defendant's contention, thus: "In addition thereto, one-fourth of the excess of $2500 of the fees collected by the county clerk." If we consider the tenth section alone, this would be a correct interpretation, because no sum other than the $2500 would be expressed as a charge against the fund.

We can not, however, consent to be confined to one section of the act in disregard of all other parts even if the language were unambiguous. The paramount rule of construction is to find out the legislative intent, which is the law and must prevail. Suth. Stat. Const., sec. 218; Runnels v. Belden, 51 Tex. 48; Russell v. Farquhar, 55 Tex. 359. In Runnels v. Belden, Chief Justice Moore said. "It is unquestionably a fundamental canon of construction that such interpretation shall be given to acts of the Legislature as will effectuate the intent and purpose of the lawmakers in their enactments, when the intent of the law is plain and obvious, rather than to follow its literal import or mere grammatical construction." In the case of Russell v. Farquhar, the same learned judge used the following language: "If courts were in all cases to be controlled in their construction of statutes by the mere literal meaning of the words in which they are couched, it might well be admitted that appellants' objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been held, would be for the courts in a blind effort to refrain from an interference with legislative authority by their failure to apply well-established rules of construction to, in fact, abrogate their own power and usurp that of the Legislature, and cause the law to be held directly the contrary of that which the Legislature had in fact intended to enact. 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 evil results consequent upon an adherence to literalism in construing a statute, so clearly set forth by Judge Moore, are well illustrated by the construction contended for by defendant. From the language of the whole Act of 1897, it is plain that the Legislature intended to make efficiency in the public service the standard by which the affairs of the offices named should be regulated and conducted. When the defendant Thompson applied to the county judge for authority to appoint deputies, he virtually affirmed two propositions; first, that the duties of the office were greater than he could perform alone, which showed a necessity for the appointment of deputies; and second, that the fees of the office would be sufficient to pay for the aid needed. The latter fact would appear from the statement which might have been demanded by the county judge, who was required to keep in view the promotion of the public service and who, in determining the number of deputies necessary to "the efficient service of the public" and the salary to be allowed to each, must have had in mind the service required and the probable amount of the fees of the office. Let us try construing the law in the interest of the officer by a statement of the account and note the result. The fixed salary of the clerk is $2500. By determining the number of deputies to be appointed and fixing their compensation, the cost of their services per annum could be ascertained, which we will place at the actual cost, $4151.59, and, from the statement, an estimate of the fees could be made, which, for present purposes, we will fix at the sum actually collected, $7180.80. Deduct $2500, fixed salary, and there remains $4680.80; add one-fourth of that amount, $1170.20, to the salary of the clerk, and he would receive $3670.20, leaving $3510.40 to be applied to the payment of the deputies for their services, worth $4151.59. The clerk would get $1170.20 more than the value of his services and the deputies would receive $641 less than the amount allowed. The result would be that the number of deputies must be reduced so as to bring their compensation within the amount of fees collected, whereby the public service would suffer, or they must be denied fair pay for their labor. This interpretation sacrifices everything to the private interests of the officer. Construed according to the obvious intention of the Legislature, the deputies would receive the fair value of their labor, the clerk would receive the full value of his services, and "in addition thereto, one-fourth of the excess," leaving a small sum for the county treasury, and "the efficiency of the public service" would be maintained.

It is ordered that the motion for rehearing be granted and that the judgment heretofore entered be set aside. It is ordered that the judgment of the District Court and Court of Civil Appeals be reversed, and this court will now render judgment in favor of Ellis County against T.F. Thompson for the sum of $217.17, with 6 per cent interest per annum from November 23, 1898, to this date, and for the sum of $179.67, with 6 per cent interest from May 26, 1900, aggregating $455.04, to bear 6 per cent interest from date.

Reversed and rendered.