Russell v. Cordwent , 1912 Tex. App. LEXIS 1215 ( 1912 )

SPEER, J.

Richard Cordwent and a number of other citizens of Callahan county filed this suit against C. D. Russell, county judge, R. L. Surles, county clerk, and the other defendants, as county commissioners of said county, seeking to enjoin the execution of a contract made by the county commissioners’ court with the defendant Surles, whereby the county had agreed to pay to said Surles the sum of $2,500 for the reindexing of the county records of Callahan county. The following offer and acceptance are sufficient to show the terms of the contract, to wit:

“Offer: Hon. Commissioners’ Court of Callahan County, Texas. I hereby submit this proposition for the reindexing of the Callahan county records. I agree to do the work in good shape furnishing the cards to do the transcribing work and the typewriter to be used in said work. I agree to do the work for the sum of two thousand, five hundred dollars to be paid as the work progresses. I agree to insert the date of each instrument in each index. R. L. Surles.”

“Acceptance: It is ordered by the court that the proposition of R. L. Surles, county clerk, for reindexing of the county records of Callahan county, Texas, be, and the same is, hereby accepted, for which he is to receive the sum of two thousand, five hundred dollars to be paid as the work progresses.”

The trial court instructed the jury that such contract was unauthorized by law, and they should therefore return a verdict in favor of the plaintiffs, which was accordingly done, and from the judgment based thereon the defendants have appealed.

The question here involved was, in effect, decided by this court in Tarrant County v. Butler, 35 Tex. Civ. App. 421, 80 S. W. 656, where it was shown that the duty of transcribing the county records properly devolved upon the county clerk, and that for such services the law had fixed the compensation, which compensation constituted fees of office within the meaning of our statutes. This being true, after the commissioners’ court had determined that the necessity existed for having its records transcribed or new indexes made, it was no longer a matter of bargaining between the commissioners and the county clerk as to the compensation the latter should receive for such work. The law fixes this, and neither party has the power to alter it. It may be that the work at the rate for 100 words prescribed by statute will exceed the sum agreed to be paid, but this could give no validity to the contract, and, if it does, the recovery would be according to the fees prescribed by statute, and not according to the agreement of the commissioners’ court. In other words, the contract for compensation has no validity, but it is the duty of the county clerk to perform the services indicated, and to collect therefor at the rate and in the manner prescribed by statute. What that rate is is a question In no manner before us, and we do not decide it.

Tbe judgment of tbe district court enjoining tbe appellants from carrying out tbe contract to pay $2,500 for tbe services indicated is therefore affirmed.