State v. Brady , 102 Tex. 408 ( 1909 )

The parties agreed in writing upon a statement of the facts upon which the trial court gave judgment for Brady and the Court of Civil Appeals adopted the statement which follows and affirmed that judgment:

"1. It is agreed that the facts alleged and set out in plaintiff's petition are true and correct and shall be taken as facts in the trial of this suit, especially as to the official acts of the said John W. Brady, the dates and amounts of the judgments recovered and of the fees retained by the said Brady as county attorney under the Anti-Trust Laws of 1899 and 1903 of the State of Texas. However, it shall not be taken as admitted by the said Brady that the fee alleged in the motion to be the fee allowed by law is the fee allowed him by law, in this respect he only admits that he received as county attorney 25 percent of each respective judgment for penalties as alleged in plaintiff's motion and claims that he was entitled to the same under the law.

"2. It is agreed that in all of the suits named in said motion, except that of J.M. Guffey Petroleum Co., and the facts as to that are correctly stated in defendant's answer, the said John W. Brady appeared and represented the State, under the direction of the Attorney General of Texas.

"3. That on March 31, 1903, C.K. Bell was Attorney General of Texas, and held that office until on or about January 2, 1905. That on July 14, 1904, the said John W. Brady, as county attorney of Travis County, Texas, assisted by D.A. McFall and G.W. Allen, attorneys, brought suit in the District Court of Travis County, Texas, in behalf of and in the name of the State of Texas, against the J.M. Guffey Petroleum Company and the Beaumont Confederated Oil Pipe Line Company for violations of chapter 146 of the General Laws of the State of Texas of 1899; and by agreement recovered a judgment in said suit for $5,000. That said judgment was collected in full by said John W. Brady on or about December 5, 1904, and that said Brady retained $1,250 as his official fee in said suit of the State of Texas against the J.M. Guffey Petroleum Company and the Beaumont Confederated Oil Pipe Line Company. That out of said fees he paid under contract to the said two attorneys, two-thirds thereof, for their services therein. That the settlement which resulted in said judgment and collection was at the time approved by said C.K. Bell, Attorney General, as the construction of the Anti-Trust Laws of 1899 and 1903, by which the said John W. Brady retained one-fourth of said judgment as his official fees therein.

"3 1/2. It is agreed that in all the judgments rendered in the cases in which collections were made and in which penalties were assessed for violations of the Act of 1899, such penalties were assessed for the minimum penalty of $200 per day for each day's violations, as provided in said Act of 1899, and collections made accordingly.

"4. That the suit No. 21,046, the State of Texas v. The United States Fidelity Guaranty Co. et al., was filed while C.K. Bell was Attorney General, but was settled a short time after R.V. Davidson qualified as Attorney General.

"5. That all the suits named in plaintiff's motion, including those filed and settled under the administration of Attorney General Bell, as well as under the administration of Attorney General Davidson, were settled by agreed judgments, approved in terms and amounts by the Attorney General. That all of the fees retained by the said John W. Brady in said suits were retained by him in good faith, believing that he was entitled thereto under the law. That in so retaining said fees he relied upon and followed the construction given to the anti-trust laws of 1899 and 1903, by Attorneys General Bell and Davidson, viz.: That the repeal of the Act of 1899 by the Act of 1903, with the saving clause in the latter Act, had the effect of keeping alive the Act of 1899 as to all acts committed before the Act of 1903 took effect, not only as to the penalties named in the former Act, but also as to all its machinery and provisions for the enforcement of the same, including the compensation of 25 percent to county and district attorneys. That such construction is still adhered to by the Attorney General's Department of this State.

"6. That upon the faith of said construction by the Attorney General's Department, the said John W. Brady, with the knowledge and sanction of said Department, employed attorneys and made contracts with them for contingent interest in said fees, based upon the construction that he was entitled to 25 percent of the recovery under the Act of 1899, to assist him and the Attorney-General in the prosecution of each of said suits. That said attorneys actively assisted in the work of preparing said cases for trial, and performed all legal services therein required of them by the said John W. Brady or by the Attorney-General. That out of the fees received by him in said cases the said Brady has paid out to said attorneys and in expenses for procuring testimony and preparing the same for trial over two-thirds of the fees actually retained by him upon the faith of said construction."

The Anti-Trust Law of 1903 contained this language:

"That all laws and parts of laws in conflict with this Act be and the same are hereby repealed, . . . and that an Act entitled `An Act to prohibit pools, trusts, monopolies and conspiracies to control business and prices of articles, to prevent the formation or operation of pools, trusts, monopolies and combinations of charters of corporations that violate the terms of this Act, and to authorize the institution and prosecution of suits therefor,' approved May 25, 1899, and published and known as Chapter CXLVI of the General Laws of the Twenty-sixth Legislature, be and the same are hereby expressly repealed," etc. "Provided nothing in this Act shall be held or construed to affect or destroy any rights of the State of Texas to recover penalties or forfeit charters of domestic corporations, or prohibit foreign corporations from doing business in this State, for acts committed before this Act takes effect."

The only question in this case is, did that language, quoted from the Act of 1903, repeal this part of the Anti-Trust Law of 1899:

"The prosecuting attorney shall receive for his compensation one-fourth of the penalty collected; provided, the fees allowed the prosecuting attorney representing the State, provided for in this section, shall be over and above the fees allowed him by the general fee bill now in force."

It is a well established rule of construction that when a statute repeals another with a saving clause or proviso attached by which the right of some person or of the State is reserved, such proviso or saving clause must be strictly construed, and will not be held to embrace anything which is not fairly within its terms. (Endlich on Int. Stat., sec. 186; Sutherland Stat. Const., sec. 223.)

When a statute repeals a pre-existing law with a clause saving the rights of the State, as in this case, the right of action only is preserved. The right to recover or to enforce the right under such conditions must be prosecuted under the new law or some other existing law. Endlich Int. Stat., sec. 487; Aaron v. State, 40 Ala. 307; Farmer v. People, 77 Ill. 322; Brotherton v. Brotherton, 41 Ia., 112; People v. Livingston, 6 Wend., 527.

The sound reason given by all the courts for holding that the cause of action which is preserved by a repealing act must be prosecuted under the new law is that a repealed law is not a law, and courts can not adjust rights nor afford remedies to parties without some law upon which to base their action.

The learned counsel for the defendant in error did not controvert either of the propositions that we have laid down, but claimed that the language of the saving clause is sufficient, when considered with the attending circumstances, to justify this court in holding that it was not the intention of the Legislature to repeal that portion of the law of 1899 which provided that the county attorney should receive for his services one-fourth of the recovery. This contention is based upon the words, "any rights," in the saving clause, which counsel ingeniously argued embraced the right of the State to employ and pay counsel for services to be rendered. Waiving the question as to whether the prosecution of causes through the officer of the State is a right within the meaning of the statute, we think that the Legislature so clearly defined the phrase "any rights," that there can be no question as to what was intended to be embraced in that language. If it had said that "no right of the State under the former law should be destroyed," that would be held to preserve all rights of action the State had under that law for acts done prior to the taking effect of the new law, but the Legislature enumerated what character of rights were preserved; limiting those rights to recovery of penalties for violations of the old law, to procuring the forfeiture of charters of domestic corporations for violations of the old law, and the right to deny to foreign corporations the privilege to do business in this State, for acts committed before the last Act took effect. The reservations are so definitely stated that it does not admit of a construction which will embrace anything more than that which is fairly included within the terms of the reservation. We are unable to see how it can be held that the payment to an officer of a portion of the sum recovered in the prosecution of a case is embraced in the terms of this proviso; indeed, it is absolutely excluded from the proviso by the maxim that the mention of one thing excludes all others.

It is not possible to reach the conclusion that the payment of the fees to the county attorney was necessary to the enforcement of the law of 1899 or 1903, therefore it can not be preserved as being necessary to enforce a reserved right. That the Legislature did not consider it necessary is shown by its omission from the law of 1903.

Counsel also contend that taking into consideration the fact that the new bill omits a number of provisions contained in the old law, which might be important and serviceable in the prosecution of trusts for the violation of the law, we must presume that it was not intended to repeal those important provisions, which would include that which provides for the fees claimed by the defendant in error. However important the provisions of the old law looking to its enforcement might have been considered in the enactment of that law, still a subsequent Legislature had the power, in the enactment of a new law, to omit those which appear to have been most important. It was a question of policy, to be determined by the Legislature, and not by the courts, whether the extraordinary measures authorized by the old should be continued. The Legislature which enacted the law of 1899 doubtless thought it was sound policy to offer to county attorneys the inducement of one-fourth of the recovery to stimulate their action in the prosecution of such cases, but the body which passed the law of 1903 evidently thought the time had passed for the inducement to be beneficial, or may have differed with the preceding Legislature as to the policy of doing so, for in enacting the later law upon the subject almost the identical language that prescribed the duties of officers in prosecuting such cases as well as the fees that should be paid was copied into the new statute except that part which gave to the county attorney one-fourth of the recovery, which shows conclusively that the Legislature intended to change the compensation of the prosecuting attorney in this class of cases. Other changes were made in like manner, whether wisely or not is not a question for this court to determine.

It is said by counsel for the defendant in error that the construction which we place upon the statute will deprive the county attorney of any compensation for his services in those cases above the $2500 limitation placed upon his right to fees as county attorney. If that were correct it would still not furnish a sound reason why this court should supply the omission by construction, for the Legislature might well presume that the officer would do his duty, whether compensated or not, so long as he should hold the office. But we are of opinion that the same fees that are allowed to the prosecuting attorney for collecting penalties under the law of 1903 will apply to collections of penalties for violations of the law of 1899, because in each case the prosecution and collection must be under the law of 1903. It follows that the collecting of penalties accruing under the law of 1899 comes within this language of the Act of 1903: "And it shall be the duty of the Attorney-General, or the district or county attorney under the direction of the Attorney-General, to prosecute for the recovery of the same, and the fees of the prosecuting attorney for representing the State in proceedings under this Act shall be over and above the fees allowed him under the general fee bill." The defendant in error would be entitled to the benefit of that provision.

It is said that the construction which we place upon the statute would deprive the county attorney of the ability to employ counsel to aid in prosecution of such cases, but the State is not without counsel in any event, because by article 5, section 21, of the Constitution, it is provided: "The county attorneys shall represent the State in all cases in the district and inferior courts in their respective counties. . . . County attorneys shall receive as compensation only such fees, commissions and perquisites as may be prescribed by law." The change of the law in these and other particulars may render the service less efficient than under the old statute, but, as we have said before, that was a matter for the Legislature to decide upon and not for this court to supply the omission of that department.

In the oral argument the constitutional right of the citizen to employ and pay counsel was invoked. If a citizen were denied that right we would deal with that question, but such is not the case. If it were the case of a citizen whose rights are in question he might waive the right or he could make his own terms as to fees. The State has no less power in the transaction of her business and is asserting this right of control; the attorney complains.

The District Court erred in entering judgment against the State and the Court of Civil Appeals erred in affirming that judgment, wherefore it is ordered that the judgments of the District Court and Court of Civil Appeals be reversed and judgment be here rendered in favor of the State of Texas for the excess of fees collected by defendant in error as agreed upon by the parties and found by the Court of Civil Appeals, with six percent interest per annum on each sum so received from the date of collection to this date, to wit: in the sum of Ten Thousand Eight Hundred and Seventy-five and 76-100 Dollars, together with all costs of all courts.

Reversed and rendered.