Wood County v. Cate , 75 Tex. 215 ( 1889 )

ACKER, Presiding Judge.

Wood County sued H. M. Cate, ex-county judge, to recover two hundred and sixty-four dollars, alleged to' have been demanded and received by him on allowances made by the Commissioners Court during his two years term of office from November, 1884, to November, 1886, for disbursing the school fund of said county, in excess of the compensation allowed bylaw for such service, “ together with threefold that amount added thereto as a penalty, making a total of one thousand and fifty-six dollars,” and also the sum of $143.58 of the permanent school fund of plaintiff county, alleged to have been unlawfully withheld from plaintiff by defendant.

Appellee answered by .general demurrer, and special demurrer to that part of the petition which sought to recover the penalty of threefold the amount alleged to have been unlawfully demanded and received.

The demurrers were sustained, and plaintiff filed an amended petition, alleging that defendant had demanded and received through the orders and allowances of the Commissioners Court during the four years he held the office of county judge, from November, 1882, to November, 1886, the aggregate sum of five hundred and twenty-eight dollars for disbursing-the school fund of said county in excess of the compensation allowed by law for such service. Plaintiff also claimed in its amended petition the sum of $143.58, alleged to have been unlawfully withheld by defendant from the permanent school fund of plaintiff county.

The defendant’s demurrer to the amended petition was sustained, and judgment entered dismissing the suit -for want of jurisdiction, from which this appeal is prosecuted.

Under proper assignments of error it is contended that the court erred in sustaining the special demurrer to so much of the original petition as sought to recover the penalty of threefold the amount alleged to have been unlawfully received by defendant, and in sustaining the defendant’s-demurrer to the amended petition.

The penalty was sought to be recovered under article 2421, title 42, of the Revised Statutes, which provides:

“ If any of the officers named in this title shall demand and receive any higher fees than are prescribed to them in this title, or any fees not allowed to them by this title, such officer shall be liable to the party aggrieved for fourfold the fees so unlawfully demanded and received by

him, to be recovered in any court of competent jurisdiction.” Title 42 prescribes the fees that various State and county officers are authorized to demand and receive for certain specified services, the county judge being one of the officers named, but his compensation for disbursing the school fund is not prescribed in that title. The compensation of a county judge for services rendered in disbursing the school fund of his county is allowed and fixed by title 78, article 3745, of the Revised Statutes. Sayles’ Civ. Stat., art. 3738.

We think it clear that the case made by the original petition is not within the purview of article 2421. To give that statute such enlarged application would violate established rules for the construction of statutes penal in their nature.

We think the court had jurisdiction of the case made by the amended petition, and that it erred in sustaining the demurrer thereto and dismissing the suit.

The amounts claimed aggregate the sum.of six hundred and seventy-one dollars. It is true that the amended petition set up a new cause of action, which would have entitled defendant to a continuance, and might have subjected plaintiff to payment of costs, in the discretion of the court, but it brought the case within the jurisdiction of the court and should not have been dismissed. Ward v. Lathrop, 11 Texas, 287.

For the error indicated we think the judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted November 26, 1889.