Farmer, Treasurer v. Shaw

55 S.W. 1115, 93 Tex. 438, 1900 Tex. LEXIS 165

Opinion

GAINES, Chief Justice.

The Court of Civil Appeals for the Third Supreme Judicial District have certified the following statement and questions:

“This is an action by appellee, W. N. Shaw, county judge of Harris County, Texas, against John Farmer, as county treasurer of Harris County, Texas, in the nature of a mandamus proceeding to compel him to pay a warrant drawn in favor of said Shaw by order of the Commissioners Court, for the sum of $177, which he claimed he was entitled to and earned at the rate-of $3 a day while he was sitting as a member of the Commissioners Court, he being judge of the County Court at said time. The trial court granted the relief asked by the county judge, from which judgment the county treasurer appealed.

“The facts in the case are undisputed and are as follows:

“The appellee, W. N. Shaw, was the county j ridge of Harris County, Texas, from November 14, 1896, to November 17, 1898, and as such did serve fifty-nine days as a member of the Commissioners Court of said county. That the Commissioners Court of said county on November 18, 1898, ordered the clerk of the County Court to issue a warrant upon the county treasurer, John Farmer, in favor of said Shaw for $177, being compensation for fifty-nine days’ services at $3 per day, the same to be paid out of the general fund. That during the whole of his term of office as county judge, the said Shaw drew a salary of $125 per month under an order made by the Commissioners Court, as follows:

" 'Monday, February 14, 1898. — Ex officio salary of county judge. On motion, it is ordered that the county judge be and he is hereby allowed the sum of $1500 per annum, commencing December 1, 1897, to be paid monthly out of the general fund, for .presiding over the Commissioners Court, ordering elections and making returns thereof, hearing and determining civil causes, and transacting all other official business not otherwise provided for. Provided for by article 2450.’

"That the above $177 is claimed for the same period of time during which the said Shaw received the above salary of $125 per month.

"That the appellant, John Farmer, is the county treasurer of Harris County and has held that office for more than five years, and, as such county treasurer, had on hand and now has on hand in the general fund sufficient money to pay said warrant for $177; that appellee, W. H. Shaw, after receiving said warrant for $177 presented the same to appellant, John Farmer, as county treasurer, and demanded the payment of the same, which said Farmer refused to do, on the ground that he doubted the legality of the right of the county judge to receive $3 per day for acting as a member of the Commissioners Court. That thereafter said county treasurer referred back to the Commissioners Court for their directions the legality of said .warrant and his right to pay the same, whereupon the County Commissioners Court adopted an order commanding the said treasurer to pay said warrant out of the general fund; that thereupon said Shaw again presented said warrant to said treasurer and demanded that he register, classify, and pay said warrant, all of which he refused to do.

"Question 1. Under the above facts, was W. N. Shaw entitled to receive payment of the above warrant for $177, the same being for services as a member of the Commissioners Court for fifty-nine days at $3 per day, under and in accordance with article 2466 of the Revised Statutes, he having, during the same period of time, drawn a salary of $1500 per annum as county judge, payable monthly, under and in accordance with an order of the Commissioners Court, made and passed under and by authority of article 2450 of the Revised Statutes, which order stated that the salary was 'for presiding over the Commissioners Court, ordering elections and making returns thereof, hearing and determining civil causes, and transacting all other official business not otherwise provided for. Provided for by article 2450 ?’

"Question 2. Was it intended by article 2466, Eevised Statutes, that the county judge should receive $3 per day as compensation as a member of the Commissioners Court, and by article 2450 to give him extra compensation as a salary for presiding over the Commissioners Court, and for other official services mentioned in that article?

"Question 3. If the above question should be answered in the affirmative, then does article 2466, Eevised Statutes, violate section 18 of article 5 of the Constitution ?”

The articles which have given rise to this controversy are parts of chapter 3 of title 45 of the Revised Statutes.' The title relates to "fees of office,” and chapter 3 prescribes the fees and compensation which shall be allowed to county officers. Articles 2447 to 2449 prescribe certain fees that shall be allowed the county judge, and then follows article 2450, which reads as follows: “For presiding over the Commissioners Court, ordering elections and making returns thereof, hearing and determining civil causes, and transacting all other official business not otherwise provided for, the county judge shall receive such, salary from the county treasury as may be allowed him by order of the commissioners court.” The article that is claimed to be in conflict with this is article 2466, which provides that, “Bach county commissioner, and the county judge when acting as such, shall receive from the county treasury, to be paid on the order of the commissioners court, the sum of three dollars for each day he is engaged in holding a term of the commissioners court, but such commissioners shall receive no pay for holding more than one special term of their court per month.” It is contended on behalf of the appellant that the articles quoted, in so far as they provide a compensation for the county judge for presiding over the commissioners court, are inconsistent, and the history of these provisions is referred to in order to show that so much of article 2466 as relates to the county judge was inserted by mistake. We concur with counsel in the proposition that when the meaning of a statute is doubtful, it is proper to recur to the history of the enactment in order to throw light upon its construction and to ascertain the intent of the Legislature; but we do not concur in the proposition that the course of the legislation on this subject tends in any degree to support their contention. On the contrary, we think that its effect is to show that the passage of article 2466 in its present form was the result of a carefully considered and a well defined purpose. Article 2450 is re-enacted from article 2386 of the Eevised Statutes of 1879, which, in its turn, is taken, without any material change, from section 6 of the “Act to fix and regulate the fees of all officers,” etc., approved August 23, 1876. Article 2466 (which is the same as article 2402 of the Eevised Statutes of 1879) is an amendment of section 14 of the same act, which section is as follows: “Bach commissioner shall receive three dollars per day for each day he is engaged sitting as a member of term of the county commissioners court; provided, no per diem shall be paid said- commissioners for more than one special term per month.” * The amendment consists in adding after the word, “commissioner,” the words, “and the county judge when acting as such,” and extends the operation of the law so as to include an officer who was not before embraced within its express terms. The change is material, and it is unreasonable to say that it was made through inadvertence or mistake. But in reference to that question, it is best to let the commissioners who prepared the Eevised Statutes of 1879 speak for themselves. In their report to the Legislature in reference to the “Title” of the Eevised Statutes in which the original articles in question are found, they say: “This title has been carefully prepared and arranged, with a view to easy reference. The changes made in the old law will easily be seen without further special reference.” It seems obvious that so unmistakable a change as that wrought by the addition of the language in reference to the county judge was not the result of inadvertence. The manifest purpose was to amend the existing law so as to extend its provisions to the county judge and to provide that he should receive at least for his services in presiding over the commissioners court the same allowance per diem as was allowed to a county commissioner. The language admits of no other construction, and but for article 2450, there could be no question as to giving it effect. If these articles were so inconsistent that both could not stand, then the question would be, — which expresses the real intention of the Legislature ? But if they be reasonably consistent, if they can be reasonably reconciled, then both should be given effect. We think it neither inconsistent nor unreasonable for the Legislature to allow the county judge $3 per day for presiding over the commissioners court and to provide, at the same time, that the commissioners may, in their discretion, allow him an additional amount for the same service. How, when the Act of May 23, 1876, concerning fees of office, came to be revised and incorporated into the Revised Statutes, it was plain to be seen that the only law which provided for compensating the county judge for his services as presiding officer of the commissioners court, was that part of section 6 which now appears as article 2450 of the Revised Statutes, and that under that provision the commissioners might allow him either more or less than they received themselves. It was reasonable to conclude that it was proper to provide that he should receive at least as much as a commissioner, and that in addition thereto, the court might allow him a further compensation, as a part of his general salary, for incidental services. It was to be presumed that in making that allowance, under the new law, the commissioners court would take into consideration the amount allowed by statute and would scale his salary accordingly. We are therefore of the opinion that there is no inevitable conflict between the articles in'question, and that therefore article 2466 should be given the effect required by its express terms.

Our conclusion is that the first question should be answered in the affirmative. The answer to the first renders it unnecessary to answer the second and third.

* Note. — The section is quoted as printed and as it appears in the original bill on file in the office of the Secretary of State. Either the words “of term” have been inserted by some clerical misprision or some other word or words have been inadvertently omitted. The meaning, however, is clear.

Gaines.