Johnson v. Smith , 112 Tex. 222 ( 1922 )

Article 7491, R.S. 1911, as amended by the 35th Legislature, conferred authority upon the Comptroller of Public Accounts and made it his duty "to appoint and contract with some suitable person or persons whose duty it shall be to look specially after, sue for and collect the taxes" (inheritances taxes) provided for by Chapter 166, fixing the maximum compensation to be received by such person or persons at 10% of the amount of taxes collected and providing that the compensation due should be paid to such person by the Collector of Taxes out of taxes collected.

Under authority of this enactment, on the 21st day of January 1919 the Comptroller entered into a written contract with Jno. T. Smith, Wm. Woodall and M.M. McFarland to do and perform the services provided for in said act. Said contract provided for the maximum compensation and was to continue in force and effect until January 1, 1921, a period of approximately two years.

The 36th Legislature amended said Article 7491 as amended by the 35th Legislature, substituting for and leaving out all the provisions under which the aforesaid contract was made. This article so amended became effective June 18, 1919.

On October 17, 1919, through the efforts of Smith and associates a certain collection of such inheritance taxes was made in Grayson County. Out of the taxes collected relator paid them the 10% commission provided in their contract, but, on the advice of the Attorney General, the Comptroller refused to credit relator's account with the amount so paid. Relator's right to a mandamus to require respondent to enter such credit depends upon the validity of the contract between Smith and associates and the Comptroller on October 17, 1919, the date of the collection of the taxes. Respondent's chief contention is that the 36th Legislature repealed Article 7491 as amended by the 35th Legislature and that the contract by and between Smith and associates and the Comptroller fell with it; that said Article as amended by the 35th Legislature and the contract under it created a public office and that the Legislature had the authority and that it did abrogate and discontinue same.

First, however, we notice three other issues raised by respondent. He presents that relator, the Tax Collector, was not a party to the contract and has no such interest as to entitle him to maintain this suit; that he cannot plead the nullity of a law impairing the obligations of this contract; that his rights are only incidentally affected by the law impairing its obligations.

If the contract with Smith and associates was still operative and valid, then it was the duty of relator to pay over to them the commission due them under it, as provided in the law under which the contract was executed. It would follow, having performed this duty, that he would be entitled to have such amount credited to him by the Comptroller. He would have the same right to bring and prosecute this suit to require the Comptroller to credit him on his account as he would have to defend against a suit by the State against him and his bondsmen for said amount and to show that he had paid same to Smith and associates under authority of said contract and the law authorizing it and to maintain that said payment was legal in all respects.

Respondent insists that the article of the statute under which the contract was made did not authorize a contract for any fixed or definite period of time, and therefore the contract was without authority and unenforceable.

It would be unreasonable to hold that the Legislature authorized and instructed the Comptroller to make a contract with some suitable person or persons who would render diligent aid in the collection of inheritance taxes and perform services that would entail much outlay of time, energy and expense and yet limit same to a contract at will. No suitable person or persons would be willing to enter into such a contract. It must be implied that the authority given included the making of a contract for a given or definite period of time.

Neither do we think respondent's proposition that the provision in said contract that Smith and associates may "sub-contract with competent persons throughout the State" invalidates the contract. That paragraph of the contract is not material here. Even if that paragraph should be held to have exceeded the authority given by the statute yet the contract otherwise would not be rendered nugatory and void thereby.

The contract entered into between the Comptroller and Smith and associates, under the authority of Article 7491 as amended by the 35th Legislature did not create a public office, but was a contract which is protected by Section 16. Article 1, of the Constitution of Texas which provides that no "law impairing the obligation of contracts shall be made" and also by Section 10, Article 1, of the Constitution of the United States. Morris v. State, 62 Tex. 743; Hall v. Wisconsin, 103 U.S. 5; United States v. Hartwell, 6 Wallace, 385; New Orleans Gas. Co. v. Louisiana Light Co., 115 U.S. 650; Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685; The Trustees of Dartmouth College v. Woodward, 4 Wheaton, 463.

We think there can be no doubt that the 36th Legislature did repeal Article 7491 as amended by the 35th Legislature by substituting for it in its entirety. It was competent for the Legislature to repeal or so amend Article 7491 as to change the plan for collecting inheritance taxes and to withdraw the authority for other contracts under its provisions. This it did, but in doing so it did not and could not affect or terminate prior contracts legally entered into under said authority. There is nothing in the Article as amended by the 36th Legislature which manifests an intent to affect or avoid prior contracts.

Article 7491 as amended by the 35th Legislature directed and made it the duty of the Comptroller to "contract with some suitable person" and provided the duties to be performed by the person "so contracted with" limiting the compensation to be fixed by said contract to a commission of not to exceed 10% and provided how it should be paid.

It is true that the statute made it the duty of the Comptroller to "appoint and contract" and refers to the appointee of the Comptroller, yet the effect of the statute was to authorize and direct the Comptroller to "contract with some suitable person" to be selected by him.

The Supreme Court of the United States in the case of U.S. v. Hartwell, supra, in distinguishing between a government office and a government contract said:

"An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. . . . A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other."

The contract of Smith and associates with the State was specific in its objects and limited in duration, the duration being a matter of agreement in the making of the contract, the duties were defined and neither could withdraw therefrom without the consent of the other.

Could it be maintained that Smith and associates could resign from their contract as from an office and withdraw from their obligations thereunder and have their $10,000 bond cancelled at their will? We think not. Their Bond and their contract were for the performance of their obligations for the term of the contract.

The able attorneys for respondent insist that to hold that the Legislature could not repeal the law so as to terminate this and similar contracts would be against public policy and disastrous to the public good. The State, like individuals, especially when entering into private contracts, must first well consider what contracts it will enter into or authorize with the view of having them performed according to their terms.

When the State becomes a party to a contract with a citizen, the same law applies to it as under like conditions governs the contracts of individuals. Anderson v. Robison, 238 S.W. 883 and cases there cited.

The writ of mandamus is granted.

Chief Justice Cureton took no part in the decision of this case.