Davenport v. Eastland County , 94 Tex. 277 ( 1901 )

The Court of Civil Appeals for the Second District has certified to this court the following statement and question:

"This suit was brought by Eastland County to recover from appellant, former treasurer of said county, and the sureties on his official bond, the sum of $414.41, which it is alleged he retained as commissions more than he was entitled to retain under the law.

"The facts, briefly stated, are these: Mr. Davenport was elected county treasurer for said county on the first Tuesday in November, 1896, and qualified by giving bond and taking the oath of office on the 17th day of November, 1896. He made quarterly reports of the amounts received and paid out by him, which showed that from November 17, 1896, to October 31, 1897, he received $1999.99 as commissions, and from November 1, 1897, to October 31, 1898, he had received $1999.99. From November 1 to November 19, 1898, he received $10,066.51 and paid out $8381.83, upon which he claimed and retained as his commissions, $434.85.

"The Commissioners Court fixed his compensation at 2 1/2 per cent for collecting and 2 1/2 per cent for paying out. Mr. Davenport's successor in office qualified on the 19th day of November, 1898.

"The appellee county contends and the trial court held, that Davenport's term of two years began on the 17th day of November, 1896, and ended on the 17th day of November, 1898, and judgment was rendered against him for $414.41, allowing him only 3/365 of $2000 for the three days he held over two years, from which this appeal is prosecuted.

"We deem it advisable to certify to your honors for decision, Chief Justice Conner being disqualified, the question involved in the motion for rehearing now pending in this court and arising from the above facts, which is, whether or not appellant Davenport was entitled to retain commissions on the moneys collected and disbursed on the 17th, 18th, and 19th days of November, 1898, in excess of 3/365 of $2000, that is, whether the limitation in the statute that the salary of a county treasurer shall not exceed $2000 annually applies to the time appellant Davenport held over so as to limit his allowance for that time at the rate of $2000 per annum, or whether he was entitled to commission on all the moneys received and paid out during said three days not to exceed $2000?"

To the above question, we answer that the appellant was entitled only to recover that proportion of the sum of $2000 which the time he served, after the expiration of his term, bears to the whole year.

The Constitution of this State and the statute fixes the term of office of a county treasurer at two years and until his successor is elected and qualified. The compensation is regulated by the following articles of the Revised Statutes:

"Article 2467. 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.

* * * * * * * * *

"Article 2469. The commissions allowed to any county treasurer shall not exceed two thousand dollars annually."

The Commissioners Court of Eastland County fixed the treasurer's compensation at 2 1/2 per cent on sums received and on sums paid out. He was entitled to that per cent, not to exceed the sum of $2000 per annum.

When the compensation is by law to be paid in fees, the incumbent of an office who holds over after his term, awaiting the qualification of a successor, is entitled to the fees for such work as he may do in the office during that time. Hubbard v. Crawford, 19 Kan. 570. And where the compensation of an officer is fixed at a salary for the year and the incumbent holds over beyond his regular term, he is entitled to receive that proportion of the salary for the year that the time he holds over bears to the year. Robb v. Carter, 65 Md. 321. A county treasurer in this State is not entitled to all fees which may accrue on moneys received and paid out by him, but only to receive such fees as may accrue, not to exceed the sum of $2000 for the year. Neither is he entitled to receive the entire sum of $2000 per annum, but to receive $2000, provided the fees of his office aggregate that sum. From these provisions, we conclude that it was the intention of the Legislature to give to the county treasurer $2000 per annum, to be paid out of the fees which might be fixed by the commissioners court, if such fees should amount to that sum, and we believe that under the facts of this case the treasurer was not entitled to the great excess of fees that he received within so short a time after the expiration of his term and before his successor qualified, but that it ought to be treated as if he were upon a salary of $2000 a year and give him the proportionate part of such salary for the length of time he was engaged in serving the county, provided the fees accruing during the time should be equal to that proportion of the whole salary.

The contention of the appellant would result in one of two things: Either the county must pay for the year's services to the successor $2000, if his fees should amount to so much, which, added to the $434 claimed by the appellant, would make the cost of that office for the year $2434, in violation of the statute; or the successor in office must get only $1536, although his work might amount to more than the $2000. Such a result is not consistent with the legislative policy, as outlined in the articles of the statute above quoted.