Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Pat Beeke
County Attormq
Andrewa county
Andrew6, %xaa
Dear Sir:
9 the vatlua.tlo,a WM a little over
rifS or Andrsws GQtulty ta being pria
I, end hie fees run over the nmlmua.
report ior the year o? me he nhmmd
a6 R aFedlt ta himself an Item of $600.00, which
he lr elalring au ear expenser but ha failed to
make aonthl9 axpemc reports ar previded b9 tit%-
cle Ho. 3899, and further even in hlrr fee repart
he doen not attempt to itmnlce or explain the be-
c%uotion sther thm oar expenee.
"Queetiont CM the Oommierionere Court
Honorable Pat Beene, page 2
legally allow this Item of $600.00, under the
above set out alroumetenoee; to the Dherlff?
*The she!%fr or Andrewa County la aleo
the Collector an& Atmeasor. of Taxem; and the
benk, whloh 1s the County Depoaltory, lr lo-
oated In Midland, Texae, and the only plaoe
provided ?or his keeping the money, which he
colleots, other than In the depo<ory ie 8
vault in the Court house; In April or la&t
yenr thlr vault W&IIbroken Into by thlevem,
who have never been apprehended, and (407.64
In oash use taken.
"QuestIon' 1s the Colleotor responslble
ror this loaa, and should It be returned to
the County?
"Aa above noted for the year of 1938
Andrew County had a valuation of between S
and 6 mIllIon, thereZore the orjuntr oommisaioa-
era salemlee wae figured on a per diem bar5.e~oi
@LOO per day, ror the ydar of 1939. Eaoh Uom-
mlasloner, during it& year of 1939, tyrned in
his time at eaoh CommIraionc~re" Court meeting,
and It wa.a palreed upon ;@d the Clerk Issued a
warrant ror ruoh tlpteturned in; ead at the md
of the year eaah of the aommlssloners had not
drawn all or the maxImumprovPded under
Artlole 2360, but theyypaared an order oommand-
Ine the olerk~to Ietue a warrant to eaoh oom-
‘mIns4oner In amount of the dtfrerenae between
smount reoelred during l[eap and the ILuImum,
vhich In th16 Inetence I& ~l~2OO.W.
"'Question Gan thIe be legfilly done?
SeoUon (a) of Artiole 3899, Vernon's ¬ated
Civil Statutes, reads In part a.8 followa:
“At the close or each month or his tenure of
offloe eaoh offloer named hereIn who Is compen-
sated on i fee basle shall make as part of the
report now required bp law, nn Itemized and morn
statement of all the ootual anti neoeseary expensea
Honorable Pat Beene, page 3
Inaurred by him In the oonduct of Me ofrice,
such as etatloncry, stampa, telephone, pre-
mIums on orrlolale~ bonda, InoludIng the ooet
of surety bonds for hIe Deputior, pramIum on
flre,,~ burglary, theft, robbery Ineurance pro-
teotlng public funda, traveling expenses and
other neoesaary expenses. . . Ii suoh expenees
be InourreU In eonne tlon uIth any partioular
caee, such etatcment ahall name such aaGe.
Suoh expense acoount shall be aubjeot to the
audit of the County Auditor, If any. otherwise
by the Commieelonera’ Court; an& ii It appears
that any Item of suoh expense was not Incurred
by such orflcer or suah’ltem was not a neoeeeary
expense of orfioe, suoh Item shall be by suoh
auditor or oourt rejeoted, In which OBR~ the
collection6 of such Item may be adjudloated In
amy oourt of oompetent jurlsdlotlon. The amount
of salaries paid to Aeslstants and Deputlee ahall
also be clearly shown by ouch oIflOer, giving
the name, poaltlon and amount paid e&oh; and In
no event &all auy.offIcer show shy greater. .~
amount than aotually pold any euoh hslettk# or
Deputy. tie amount of suoh expenaee, together
with the amount ef ralariea paid to Ae6Istants,
Deputlee and Clerke ahall be paid out of the
fee8 earned by such oftleer. . .* -..
The aaae of Pierson, Justlae of the Peaoe, et al.
YE. Calves.ton County,’ lS1 8-U. (I?d) 97, holda, among other
things, that a Juetloe of the peaoe ~a6 not entitled to re-
cover from the oountg oertaln Item8 of expenee claImed for
postage, traveling expetmen, and messenger eervloe during
oertaIn years In orrIo@, where the juetloe bid not render
monthly etrtements of euoh expenses aa requlred by etatute,
but merely filed annual report@ eEtI.metIng the expense bn
lump cum emounta.
%ierrIng to ArtIale 3899, aupra, we quote from
the above mentioned aaee a6 folloua:
“The m8nifeet purpoee 0r thle statute was
to provide a mean8 0r eeaertalnlng the oorreot-
neaa of expense Items eaah month as they are
incurred. The s.ctuel exTense6 pald or inaurred
oonstltute the mea&ure of the oi’fiolalfe right
S$onorebla Pat kene, wage 4
to reaoupment. rhe monthly ltaslratlon la for
the proteatlon of the aounty by ef~ording a
meane of arasrt~lnlngthe faat (md amount OS
euoh claimed item o? expense and whether it
WBSproperly ahaxgeablc aa such. It la aanl-
feet from the annusl reports and aonflrmed bye
the eridenae that th464 expenrer were mere1
estimated end a lump tauroglren eaah year. hhe
statute would be of no value ii lts aslutory
provlsione oould be evaded in this manner. We
hold the ltens nroptrly dlrallowed by the Com-
mleaionere~ Court, and the trial aourt's judg-
ment oorreat in denying reaovery therefor.*
Therefore, your irkret question Is answered, in
the negative.
In the oar6 of Boggy-~.ys. The Btato, 46 Tax. Rep.
p. 10, the defendants filed a%rpealal aneuer, averring that
Boggs, as Tu Callmtor, having oolleotecl the tuoa, and
being about to 6t&rt to AuatLa dth the rone~, hrd #lSOO.OO
of It stolen iron him, without hls raolf, (atstlng thc'eir-
oumstanaer of it8 loam.1 fhe plaintiff fllod exaeptUm8 to
this answer, whloh was surtbined, whloh 18 aerlgnsd as error.
We quote rrf3N)pD
the 8bave mentlaneb oas+-as r0nowr:
‘It was oontended by the counsel for the
e~pellante that Boggs, being an orrloer,oe-
ouplscl tovard the state the position oi a
ballee ror hire, In the business of oolleotlng,
preserving, and aaoountlng for the taxsa of
Rusk Countr, and thet as he took oare of the
money in hla hands, as a prudent man would
ordlnarlly have done, in refermoe to Ns own
property, neither he nor hirr suretlea were
responsible ior it6 loee,.
'Ye do not understand suoh to be the legal
poaitlon and repponalUl.ity or tht pub110 of-
flosr whoae duty It is to colleat and aooount
for the money of the atate aa a tax aallaotor,
nor is it in aaoondanoa with the terms of hle
bond, algnti by hlm ad Me sureitles as pra-
aorlbed by lew.
'h la bound to amount for and pay over
th? amount of money whloh he oolleata lera Ns
Hzn~-ruble Pat Scene, page 5
oommiesIons, or his sureties must do It for
him. ”
Ne quote from Corpus Jurls 61,‘p.l023,~as follows:
‘A collector of taxes 1s not regarded aa
a bsllee of the money collected by him end re-
maining In hIe hands, but he Is an insurer of
its safety agaInet loss by any means whatever.
Be Is therefore responsible for the taxee col-
leoted, although he is robbed.of the money or
It Is ttolen from him. M
The case of American Indemnity Company, et al. vs.
State, 104 S.U. (2d) 68, .waE a suit instituted by the atate
In the distriot court of Bldalgo County for two dlstknat pur-
poses, first, to set aelae the Judgment in @muse No. B-3697,
styled The State of Texas v. Brown Land and Cattle Company,
et al., and eecona, to recover from 0~. Em. Jonee, former tax
collector of HIdalgo county, ae prlnolpal, and the American
Indemnity Company, ae surety on his official bonds as tax
collector, the sum of *16,379.11, together with Interest,
alleged to have been paid out by Jones from funde In hls
hands as tax oollector, in oonrorslity dth and under color
of the Judgment in aause No. B-3597.
We quote from the above mentIoned caee_.as followe:
*It was said in the ease of Town of
Cameron v. Hicks, 65 W. Va. 484, 64 S.E. 832,
835, 17 Ann. Gas. 926; ‘*y ,the great weight of
. authority, the custodian of $ublIc money Is not
e ballee, bound only to the exerolse of high
degree of care, prudence, and dlllgencefbr lte
eafety, and exeueable for the loss thereof by
fire, robbery, theft, or bank failure, when such
1013s Is not in any senee due to negligence or
mfsconduct oil hi8 part, but a debtor and lnsurer
to the extent of the amount received, excueable
for no losses except those resulting from acts
of God or the pub110 enemy.’
“Thcugh Jones may have paid this money out
in good faith and under the belief that It wae
his duty to e0 60, es a result of the Judgment
In cause No. B-3597, neverthelese, he was an
insurer of these funds and his failure to pro-
perly account for them to the State of Texas
renders him and the surety on’ his offialal bona
liable to the State to thet extent. . .*,
Han->rhble Pat Beene, Page 6
Your second question is answered in the affirma-
tive.
Article 2360, Vernon’s Annotated Clvll Statutea,
reads In part a6 followe:
‘In oountles having the following assessed
valuations, reepectlrely, as shown by the total
aeseseed valuatlone of all propertlee certified
by the county aseee6or andgproved by the Com-
missioners Courts, for county mrposes, for the
previous yeer, from time to tlme, the County
Commissionera of auoh counties ehall each re-
ceive annual ealarles not to exoeed the amounts
herein epeoified. eaid salaries to be paid In
equal monthly lnetallments, at leaet one-half;
and not excfedlng three-fourths, out of the hoad
and Zrid e und and the remainder out of the
General ‘utid of the County; said asseeeed valua-
tions and salariee applloeble thereto being a8
rol.lows:
". . .
*In countiee havln~ as&eesed Valuation Of
more than Four Million Bive Hundred Thousand- and
One Dolhrs ($4 500,001) and lees than 2io Mll-
lion uollars (f6,000,000) eeoh oommleeloner shall
receive Five Dollars ($6) per day for eaoh day
. ‘served a6 oommle&ner, end a like amount when
actPng’a6 ex-officlo road euperlntendent in hle
Commiesioners Precinct, provided in no event shall
his total compensation exoeed Twelve Hundred Dol-
lars ($1200) In any one year. a
Ae above stated, Andrew6 County had aaE:essed val-
uatlons of all properties of between Five Dollar6 ($5) per
day for eaoh day served ae commissioner for the year of
1939 and each commissloner turned in hia time at e&h com-
mlssinners court meeting, and it wa8 passed upon and the
clerk issued B ws~rrant for suoh time turned in. At the end
of the ye&r each of the commissioner6 had not dim all Of
the maximum provided under Artiole 2350, supa, but the
Honorable P6t Srene, pge 7
oommlsei~3-iere~oourt passed en order oommandlng the clerk
to 166ue a wsrrant to e6oh oommlasloner in amopnt of the
differenoe between the amount reoelved during the year
qnd the maximum, which in this lnstanoe wee Twelve Hundred
Dollar6 ( 1200). Eadh oommI66ioner la entitled to Five
Dollars ( $ 5) per day for each day'actually nerved a6 com-
mIesI.:ne , a6 provided In Artlole 2360, 6upr6, and 16 not
entltled to the maximum unlees he has aotu6lly 6erVed a6
oommissl-:ner for a 6UffIOient length of time at $5. per day
whloh would emount to the maximum of $1200. In thle oon-
neotion we interpret the word6 'eaoh day served a6 commIs-
eioner* to mean rach day or the time aotually served by
eeoh commleoioner in performing the duties of aommlesloner
a6 lmpoeed by law and doe6 not Include any time which wa6
not actually served In the performing of then duties a6 oom-
miesioner.
We quote from Texas Jurls. Vol 34, p. S29 a6
r0ii0w6:
*An orrloer 16 entitled to compensation
et the rate presorlbsd by the etatute whIoh 16
in foroe when hle eervloes are rendered. Or-
dlnarlly statutes and orders making ohangee In
the compen6atIon of offlOer6 speak prospeotiv;:;,
and will not be given a retroaotlve effeot.
may a commlesioners' court make a changed r&e
of oompensatlon apply to eervloes already rin-
dered. . .*
Statute6 prescribing feee for public offloere are
striotly oonstrued; hence a right to fee6 may not rest in
ImplIoetlon. Where thI6 right is left to construotlon. the
language of the law must be oonstrued in favor of the govern-
ment. Where a statute 16 ceoable of two conatruotions one
of whloh would give an orrlckr comDen6atIon for hi.6 ee&Ioe6
in addition to hi6 salery end the bther not, the later oon-
struotlon should be adopted. See the oe6e Of McCall6 v6.
City of Rookdale, 245 S.W. 684.; Eastland County v6. Hazel,
288 S.W. 518; Madden v6. Hardy, 50 S.W. 926.
In view of the foregolng suthorltleg, your third
question Is answered In the neg6tive.
Trueting that the foregoing fully answer6 your ln-
qulries, we remain
Pours very truly
ATTOPXEY GENERALOF TEXAS
BY /d
Ardell Wlllltu116
Resistant