68 Tex. 507 | Tex. | 1887
Appellee having served a term as city attorney of the city of Austin, brought this suit to recover of the appellant the sum of nine hundred and twenty-one dollars and forty-six cents, alleged to have accrued to him as part of his compensation during his term of office. The amount claimed is ten per cent of the money collected for the city as fines during the period mentioned.
There was a special exception filed to the petition, upon the ground that the ordinance of the city council under which appellee claimed, was not sufficiently pleaded. The court below overruled the exception and that ruling is now assigned as error. The ordinance is pleaded as follows; “Petitioner further charges, that under and by virtue of article 103 of the ordinances of said city of Austin, approved February 15, 1878,. which was in force and effect during the whole period of petitioner’s incumbency of said office, he, as city attorney, was entitled to receive ten per cent upon all sums of money collected by defendant as fines imposed in the mayor’s court of the city of Austin for the violations of the ordinances of said city.” The courts do not take judicial knowledge of the ordinances of munciipal corporations. They stand upon the same footing as private and special statutes, the laws of other States and of foreign countries, and must be averred and proved like other facts. (Green v. Indianapolis, 22 Indiana, 192; People v. The Mayor, 7 How. Pr., 81; Harker v. The Mayor, 17 Wend., 199.) In pleading private statutes, the common law practice was to recite so much of the act as was pertinent to the issue made. (1 Chitty Plead., 216, 2 Id., 391; Bacon’s Abridg., “Statute L, 2”; Gould’s Pl. 46, note 3; Walker v. Maxwell, 1 Massachusetts, 103.)
The same strictness should not be required under our systems, as was demanded by the rigid rules of the common law. ' Yet
The exception to the petition was well taken and should have been sustained. For the error of the court in overruling it, the judgment must be reversed.
With a view, however, to another trial, we will pass upon the other questions presented by the appeal. It is contended by appellant that ordinance 103 was impliedly repealed by a subsequent ordinance passed July 1, 1878. But both these were incorporated as article 103 and article 491 (2) into a revision of the city ordinances which were adopted by the council July 31, 1878. Their provisions are not necessarily repugnant to each other; and, therefore, both must stand. The first gives the city attorney commissions on money collected; the other gives him a salary and fixes his fees in special cases.
Since the original article 491(2) did not repeal article 103, we do not see that the substituted article 491(2), passed in 1880, could have that effect. The amendment is not more inconsistent with article 103 than was the original, and does not purport to repeal any ordinance except that for which it is the substitute.
It is further contended, on behalf of the city, that appellee should not recover in any event more than ten per cent upon such sums as he actually assisted to collect. The argument in Support of this construction is, that to give the city attorney a. commission upon moneys in the collection of which he rendered Ao service would be to give him a mere gratuity, which it is to be presumed the city council did not intend. But to this, it must be replied, the language of the ordinance is plain, and embraces
We are of opinion that the court below did not err in holding the ordinance under which appellee claims in full force, or in the construction placed upon it. But for the error in overruling-the exceptions to the petition the judgment is reversed and the cause remanded.
Reversed and remanded.