Limestone County v. RobbinsLimestone County v. Robbins
- Reporters:
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- Before:
- Harvey
delivered the opinion of the court.
The Court of Civil Appeals has submitted the following certificate containing certified question:
“This suit was instituted by appellee, W. A. Robbins, against appellant, Limestone County, to recover the sum of $18,779.84, which he alleged was owed him by appellant as compensation for certain services rendered by him as tax collector of said county. Appellee alleged that he was the duly elected, qualified and acting tax collector of said county during each of the years 1923 to 1926, inclusive that he performed all the duties incumbent upon him as such officer; that as such he collected delinquent taxes owed to appellant amounting in the aggregate to many thousands of dollars; that all sums so collected were paid over by him as directed and required by law; that he collected from each delinquent taxpayer the total amount charged against him, and in addition thereto the further sum of five per cent on such amount; that he was entitled to such further sum so collected as compensation for making each such collection. He further alleged that the several additional sums so collected by him amounted in the aggregate to $18,081.16. He further alleged that he prepared a delinquent tax record for said county for the years 1921 and 1922; that such record so prepared conformed to all the requirements of law; that the same was accepted and approved by appellant August 6th, 1923, and that he was entitled to receive and retain as compensation for the preparation of the same the sum of $464.88. He further alleged that he prepared in like manner a delinquent tax record for said county
“Appellant presented a general demurrer to said petition and special exceptions based on various provisions of our statutes of limitation, all of which were overruled.
“Appellee’s demands were based on the provisions of section 3 of chapter 147 of the General Laws of the 34th legislature, pages 250, 252, and the construction given the same in the case of Curtin v. Harris County, 111 Texas, 568, 574-5. Appellant specially pleaded the several acts of the legislature hereinafter set out in bar of any recovery for services rendered by appellee after such acts, respectively, took effect. Appellant also pleaded the statutes of limitation of two and four years, and further pleaded that said several sums of money sued for had been paid over to it by appellee voluntarily, and that he for that reason could not recover the same; The pleadings of the parties are here made a part of this certificate for all purposes.
“Appellee was the only witness examined. He testified that he prepared the two delinquent tax rolls, that his charges therefor were the proper amounts, respectively, for such service, and that he had never received anything therefor. He further testified that five per cent on all delinquent taxes collected by him during the year 1923 amounted to $10,521.66; during the year 1924 to $1,689.55, and during the year 1925’ and prior to the 1st day of September thereof, to $780.70. He
“The case was tried to the court and judgment rendered in favor of appellee against appellant for five per cent on all delinquent taxes collected between January 1st, 1923, and September 1st, 1925, in the sum of $13,068.94; for preparing the delinquent tax roll for the years 1921 and 1922 in the sum of $464.88, and for preparing the delinquent tax roll for the years 1923 and 1924 in the sum of $233.80.
“Appellant assails appellee’s right to recover any of the sums sued for herein on the following grounds:
“ ‘(a) That the several sums sued for were paid to its treasurer by appellee voluntarily and without protest or reservation of any kind.
“‘(b) That the recovery of any of the sums so sued for is barred by our statutes of limitation; and in that connection, that there was no evidence of any such mutual mistake as would prevent the running of such statutes; and that the act of May 22nd, 1929, known as chapter 95 of the General Laws passed by the first called session of the 41st legislature, is invalid for various reasons and ineffective to authorize the maintenance of this suit and ineffective to support a recovery herein, especially as against its pleas of limitation. Appellant in this connection further calls attention to the fact that said chapter 95 was repealed by an act of the legislature, approved February 14th, 1930, and effective on approval.’ “Appellant further contends that appellee, if entitled to recover any sum sued for herein, was not entitled to recover any such sum which accrued:
“(a) After the act of May 26th, 1923, known as chapter 13 of the General Laws passed at the second called session of the 38th legislature became effective; or in the alternative,
“(b) after the act of June 21st, 1923, known as chapter 21 of the General Laws passed at the third called session of said legislature became effective; or in the final alternative, as held by the trial court,
“(c) after the Revised Statutes of 1925, and especially Article 7331 thereof, became effective on September 1st, 1925.
“Appellant further contends that appellee was not’ entitled to recover
“All said contentions are presented in appellant’s brief and further statement of the same is not deemed proper or necessary. Appellee calls attention to the fact that he sues in this cause for the specific five per cent collected by him from the delinquent taxpayers in addition to all delinquent taxes, .interest and penalties charged against them, respectively, and claims that such sum belonged to him and not to appellant. All the aforesaid. issues are discussed in the briefs of the respective parties, copies of which will be transmitted with this certificate, as provided by law.”
We deem it unnecessary to set out the several certified questions, since their purport may be gathered from our discussion of the case.
It appears that the officers of Limestone county, during the period of time involved in this ■ controversy, were subject to the provisions of the maximum fee bill. At no time during this period was there any law which required or authorized the tax collector to collect, from any delinquent taxpayer, five per cent in addition to the taxes, penalties and interest due by such taxpayer. There was no statute, either valid or invalid, which purported to require the tax collector to pay over to the county the sums thus unlawfully collected from the taxpayers. The sums made up of this five per cent were not comprehended by the 1919 act, hereinafter
The claim of Robbins to a commission of five per cent of the delinquent taxes, etc. which were collected by him, and by him paid over to the county, need not be noticed any further than to say that he would not, in any event, be entitled to judgment for this compensation unless he performed the services for which such compensation was. provided Curtin v. Harris County, 111 Texas, 568, 242 S. W., 444. It was incumbent upon him to- plead and prove that he performed those services. This he has failed to do.
We now pass to a consideration of the claim of Robbins for compensation for his services in preparing the delinquent record supplements for the years 1921 and 1922. In section 3 of an act passed in the year 1915 (Chapter 147, General Laws of the 34th Legislature, Regular Session)
We now take up the act of 1929 (Chapter 95, General Laws, 41st Legislature, First Called Session). This act was in effect when this case was tried in the court below. Relevant sections of the act read as follows:
“Section 1. That any person in the State of Texas, who formerly served as a duly elected and qualified Tax Collector of any county of this State while subject in that capacity to the terms and provisions of the law known as the Maximum Fee Bill, and who, during such time, collected and paid over to the Treasurer of such county the fees and commissions set out and provided for in Section 3 of Chapter 142, Acts of the Regular Session of the 34th Legislature, 1915, or any part of such fees and commissions, is hereby authorized to bring suit in any competent court of this State against such county so served by him to collect and recover all such fees and commissions so paid over by him, provided such suit shall be brought in the county where such fees and commissions were collected and erroneously or wrongfully paid over as hereinabove set out.”
“Section 3. In case any such suit be brought
“Section 5. The fact that the Supreme Court of Texas in the case of Bitter v. Bexar County, 11 S. W. (2d) 163,-has held that Section 2, Chapter 64, of the Acts of the Second Called Session of the 36th Legislature, 1919, is unconstitutional, and the further fact that many Tax Collectors, acting under said Act, have erroneously paid money to some of the counties of this State, create an emergency, and a public necessity that the Constitutional Rule, requiring bills to be read on three.several days be suspended, and that this Bill be put on its third reading and final passage, and it is so enacted.”
In view of the series of confusing circumstances which, prior to the decision in the Bitter case, attended the right of a tax collector relative to the compensation in question, we are satisfied that the Legislature meant, by passing said act, to give to any tax collector, who came within the purview of the act, a conditional right of action for the recovery of such compensation as had justly accrued to him under the provisions of section 3 of the 1915 act, but which, through mistake of law, had not been received or retained by him. This new right of action, the provisions of the act show, was conditioned upon the tax collector’s surrender of any right, which might have become vested in him, to set up the defense of limitation against any cross-action which the county might file
It is to be noted that the Legislature, in the year 1930, repealed the 1929 act. (Chapter 3, General Laws of the 41st Leg., Fourth Called Session). The conditional right of action which was conferred on the respective tax collectors by the 1929 act, became vested when that act became effective. The Legislature, because of the constitutional restriction against retroactive laws, had no authority afterwards to take away this: right of action altogether, even though no action had been instituted. Mellinger v. City of Houston, 68 Texas, 37, 3 S. W., 249; Cathey v. Weaver, 111 Texas, 515, 242 S. W., 447. The repealing act had no-other effect on this conditional right of action than to bring it under the operation of the general statutes of limitation, which, prior to that time, had not begun to run against it. The present action, as already shown, was pending when the repealing act was passed. As a consequence, the statutes of limitation have not run against this particular action at all.
The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.
C. M. Cureton, Chief Justice.