273 S.W. 894 | Tex. App. | 1925
Appellee, J. M. Gaston, was elected county treasurer of Kaufman county in 1918, and re-elected in 1920, serving from December 1, 1918, to January 1, 1923, thereby serving one month more than four years. While he was serving his first two-year term, the following orders were in the minutes of the commissioners' court of Kaufman county:
"(a) November 23, 1905, it is ordered by the court that the county treasurer be allowed as his compensation for the next year's commission not to exceed $1,800 per annum.
"(b) November 15, 1910, county treasurer's fee of office not to exceed $1,200 per annum.
"(c) February 14, 1912, on this day came on to be considered the petition of J. Rufus Choate, county treasurer, asking that the salary of county treasurer be placed at $1,400 per annum, and the same after being duly considered by the court is granted, and the salary of the county treasurer is fixed at $1,400.
"(d) February 12, 1918, the county treasurer's salary per annum from date mentioned herein, from December 1, 1918, shall be the sum of $1,600. It is further ordered that on and after December 1, 1918, the county treasurers' salary per annum shall be the sum of not more than $600."
At the expiration of the first term of his service, appellee sued his county for a balance claimed by him on his commissions, alleging that the orders under which the court attempted to regulate his compensation were null and void, and in that suit was awarded the maximum sum fixed by article 3873:
"The county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by order of the commissioners' court as follows: For receiving all moneys, other than school funds, for the county, not exceeding two and one-half per cent., and not exceeding two and one-half per cent. for paying out the same; provided, however, he shall receive no commissions for receiving money from his predecessor nor for paying over money to his successor in office."
And article 3875:
"The commissions allowed to any county treasurer shall not exceed two thousand dollars annually."
This judgment was affirmed by the Court of Civil Appeals at Texarkana, in a written opinion by Mr. Justice Levy, in which he discussed and held void the order of February 12, 1918. Kaufman County v. Gaston,
After the contention arose with Gaston as to the basis of compensation, the commissioners' court, on June 14, 1921, passed the following order:
"Tuesday, June 14, 1921, commissioners' court of Kaufman county, Tex., being in session, a full court being present, came on to be heard and considered the matter of compensation of the county treasurer of Kaufman county, Tex., from and after this date, it is ordered that the commissions of such treasurer of Kaufman county, Tex., shall be on a percentage basis of all public funds and moneys received and disbursed for the said county, and that the percentage be one-half of one per cent. and on receipts and sum of $600 for any one year. Therefore be it ordered by the commissioners' court of Kaufman county, Tex., under and in conformity with the Revised Civil Statutes of Texas, that the compensation of the county treasurer of Kaufman county for handling and receiving money and public funds of Kaufman county, be and the same is hereby fixed on a commission of one-half of one per cent. on all moneys and funds received by him, and one-half of one per cent. on all such moneys and funds disbursed by him, *896 provided, however, that his total compensation for any one year shall not exceed the sum of $600."
On the percentage fixed by this order, it was agreed that the commission would have exceeded $2,000 per year. Before that order went into effect, however, Gaston paid himself his full statutory compensation for the year beginning December 1, 1920, and ending December 1, 1921. Then at the end of his second term, by this suit, he sought to recover, and by the trial court's judgment was awarded, the full statutory compensation for the last year and for the month of December of the year 1922, at the rate of $166 2/3 per month. He was awarded no judgment for the year 1921, as he had paid himself in full for that year's services. From this judgment Kaufman county has prosecuted its appeal, contending, first, that Gaston's compensation for the year 1921 should be regulated by the order of November 15, 1910, and, second, that his compensation from December, 1921, to January 1, 1923, should be regulated by the order of June 14, 1921, on issues duly raised by its pleading and evidence.
But from December 1, 1921, to the expiration of Gaston's term of office on January 1, 1923, the order of June 4, 1921, was in effect, and, since we believe it was a valid order, Gaston cannot recover beyond its terms. On the construction of this order, appellee contends that the commissioners' court was vested by statute, under article 3873, supra, with the power and discretion to fix the percentage of his commissions to be paid from his receipts and expenditures, but that it had no power, under either article 3873 or article 3875, or any other statutory provision, to set a maximum sum to be paid him under the percentages as fixed in the order, and, since it was admitted that his commissions at the rate fixed would amount to more than the statutory maximum of $2,000, the judgment in his favor for that sum should be sustained. He cites Smith v. Wise County (Tex.Civ.App.)
*897As thus reformed, the Judgment of the trial court is affirmed.