Harris County v. Crooker , 224 S.W. 792 ( 1920 )

In the view we take of the case it is not necessary to determine whether Act March 13, 1911, referred to in the statement above, was a local or special law, within the meaning of section 56 of article 3 of the Constitution, so far as it undertook to fix the compensation of the officer therein designated as "The criminal district attorney of Harris county"; for if it was such a law in that respect, it was not for that reason alone invalid. To have been within the inhibition in said section of the Constitution, the act in the respect stated must not only have been a local or special one, but it also must have been about one of the subjects specified in it, or about a matter to which a general law could not have been made applicable. Whether it was about such a matter or not was a question for the Legislature, and its determination of it in the negative was conclusive of the fact that fixing the compensation of said district attorney was a matter to which a general law would have been inapplicable. Beyman v. Black, 47 Tex. 558; Smith v. Grayson Co.,18 Tex. Civ. App. 153, 44 S.W. 921.

Therefore, if the act was invalid in the respect stated, it must have been because it was about a subject the Legislature was forbidden to legislate about otherwise than by a general law, and this, as we understand it, is the view appellant takes of the question. Its contention is that the act in the respect stated is invalid because it undertook, in the face of the inhibition in said section of the Constitution, to regulate the affairs of Harris county, and it concedes that the judgment should be affirmed if the contention should be overruled.

We have not been able to see how fixing the compensation of the district attorney provided for in the act could be a regulation of the affairs of said county. The duties devolved on him by the act were to be performed on behalf of the state, and not on behalf of the county as an entity distinct from the state.

Money collected by him as fees for discharging those duties did not belong to the county. Bexar County v. Linden, 220 S.W. 761.

The argument is that by the terms of the general law, referred to in the statement above as the "Maximum Fee Bill," Harris county was entitled to the sum it sued for as "excess fees" collected by the district attorney; that the act in question, if given effect in the respect specified, would deprive said county of said sum; and that such deprivation would be a regulation of its affairs.

While it also cites other cases as sustaining its contention, appellant seems to rely mainly on Hall v. Bell Co., 138 S.W. 178 and 105 Tex. 558,153 S.W. 121; Altgelt v. Gutzeit, 187 S.W. 220, and 201 S.W. 400; and Ward v. Harris Co., 209 S.W. 794. For reason suggested above, we do not think either of these cases supports the contention.

In the one first cited the effect of the special act in question was to relieve Bell county from the operation of the law which provided auditors for counties in its class. The court held that this was an indirect regulation of the affairs of Bell county, in that it provided a method for the management of its affairs different from that provided for other counties in its class. The attack in the Altgelt Case was on that part of the special act providing a road system for Bexar county, which undertook to compensate the county commissioners by paying each of them a salary of $2,400 per annum "out of," quoting,

"the general fund of the road and bridge fund, or any other available fund or the special road and bridge fund, * * * in lieu of all other fees and per diem of all kinds now payable or that may hereafter be allowed by general law." Loc. Sp. Laws 1913, c. 77, § 5.

The provision was plainly a regulation of the affairs of Bexar county, and the court so held.

The Ward Case was like the one last referred to. The special acts in question there undertook to provide compensation for the county judge of Harris county different from, and in excess of, that provided by the general law for county judges in counties in its class. The court said it was clear "that the fixing of the compensation to be paid a county judge by a particular county is a regulation of the affairs of the county within the purview of" section 56 of article 3 of the Constitution.

It will be noted, if the respective special acts in question in those cases are examined, that the provision in each of them was for compensation out of county funds of county officers for services performed for the county.

If the act in question here is a special one in the respect stated, and if providing compensation for the district attorney mentioned therein was a matter to which a general law could not be made applicable, there is another view of the case which we think also requires an affirmance of the judgment, even if providing such compensation was a regulation of the affairs of Harris county. It is clear that the Legislature, by force of the part of section 1 of article 5 of the Constitution set out in the statement above had power by a special law to create and provide for the organization of the criminal district court of Harris county. It is also clear, we think, that providing a district attorney for that court was involved in the power the Legislature had to create and organize it. If it was, then one of two things must be true — either the power to provide for the district attorney and define his duties involved the further power to provide compensation to him for discharging those duties, or the Legislature could not by any kind of a law provide such compensation; for it had determined, as it had a right to, that it was not a matter to which a general law could be made applicable.

We think it should be held that, when the people by said section 1 of article 5 specifically conferred upon the Legislature power to enact a special law creating and providing for the organization of the court referred to, they intended the power to include everything necessary or proper to be done to that end, and that one of the things necessary and proper to be done was to provide compensation for those who were to constitute the court. Of course, if that was the intention of the makers of the Constitution, they did not intend that the inhibition in section 56 of article 3 against special laws regulating the affairs of counties should be applied to the case.

The judgment is affirmed.

On Motion of Appellant for Rehearing. It is insisted in the motion that, even if the act of 1911 was valid in the respect referred to in the opinion, it did not authorize appellee to retain the sums, or any part of same, earned by him otherwise than in the criminal district court of Harris county, and therefore that the judgment should have been in appellant's favor for the sums earned out of said court by appellee as district attorney. It is argued that when the Legislature expressly declared in said act that the district attorney might retain part of the fees he earned in said court, and said nothing about his retaining the sums or any of same he earned out of said court, the effect was to deny him a right to retain the sums or any of same he earned elsewhere than in said court, and to make it his duty to pay same over to Harris county. But we think the course pursued by the Legislature should, instead, be construed as meaning that the district attorney was bound to pay over to said county only the part he was expressly directed to pay over of the fees he earned, and was to retain as compensation for his services the fees he was not expressly directed to pay over to the county, whether same were earned in said court or out of it. The motion, therefore, is overruled.