DALLAS COUNTY v. LIVELY, 167 S.W. 219

BROWN, C. J. The honorable Court of Civil Appeals of the Fifth Supreme Judicial District has certified to this court the following statement and question: “Appellant brought this suit against the ap-pellee and the sureties on his official bond to recover the sum of $675, illegally paid him for ex officio services while serving as county judge of said Dallas county. Appellee recovered, and the county appeals. “On February 24, 1905, appellee being then judge, the commissioners’ court passed an order allowing, ‘until further ordered by the court,’ the county judge for ex officio services the sum of $100 per month.

On June 15, 1905, the order allowing the ex officio salary was rescinded for the reason, in effect, that the time devoted by him to the affairs of the commissioners’ court did not justify such allowance. From said time, June 15, 1905, until September 14, 1906, there was no further order or agreement in reference to an allowance for ex officio services. On the last above-named date, September 14, 1906, there was no further order or agreement in reference to an allowance for ex officio services.

On the last above-named date, September 14, 1906, the commissioners’ court passed an order allowing appellee $75 per month for ex officio services, beginning December 1, 1905, and ending November 30, 1906, and ordered a warrant to be drawn for said amount. At the time said last order was passed appellee and two commissioners voted for it, and two commissioners voted against it.

A warrant was drawn for said amount of $675, covering nine months of said time, on the county treasurer, and same was paid. “The commissioners’ court of Dallas county passed the following order, viz.: “ ‘Upon this the 21st day of September, A. D. 1908, came on to be heard and considered the petition and communication of Dwight L. Lew-elling, county attorney, filed herein on September 17, 1908, praying for authority from the commissioners’ court to make Dallas county a party plaintiff in suits against Hiram F. Lively and A. B.

Rawlins to recover ex officio salaries heretofore paid such officers; also came on for consideration Hiram F. Lively’s answer to said communication filed herein on September 19, 1908; and it appearing to the court that Hiram F. Lively performed the ex officio services faithfully during the said term for which the ex officio salary was paid; that Dwight L.

Lewelling asks authority to sue for; and it further appearing to the court that said services were faithfully rendered, and no compensation was given therefor, except the said seventy-five ($75.00) - per month, ex officio salary; and it further appearing that said salary was fixed by the court and paid in good faith as per order of the commissioners’ court made add entered on September 14, A. D. 1906, and we do hereby ratify and confirm the action of this court taken on the said 14th day of September, 1906, in fixing the said ex officio salary of said officer.

It is the opinion of this court that there are no merits in equity or justice in the contention of the county attorney as set forth in his said petition; however, it further appearing that Dwight L. Lewelling is the official county attorney of Dallas county, and desired authority to test such matter in the courts of this county, it is the desire of this court that he (Dwight L. Lewelling) may have a “free hand” to test the matters complained of in said petition; it is the further desire of this court that in the matters of ex officio salary sought to be recovered from Hiram F.

Lively, or any claim he might have against Dallas county for salary unpaid, that there shall be no “pleas of limitation” filed, but that such contentions be tested upon their merits, that justice may be done. It is (upon the request of Hiram F. Lively) therefore ordered and adjudged by the court that Dwight L. Lewelling, county attorney, do have and is hereby given authority to make Dallas county party plaintiff to the suit heretofore filed by him in the district court of Dallas county against Hiram F. Lively, county judge, and individually, and also against A. B.

Rawlins, former district clerk of Dallas county.' “ ‘W. H. Pippin, Presdg. “ ‘It is ordered by the court that the within order be and is hereby made and adopted. “‘Aye: W. H. Pippin, R. W. Eaton, H. H. Bennett, O. D. Smith. Co. Judge Lively, present, not voting.’ ” Under the foregoing statement did the commissioners’ court have authority to make the order of September 14, 1906, allowing for ex officio services for a period already expired? In other words, does such order come within the meaning of

article 3, § 53, of the Constitution, which prohibits the granting of “any compensation, fee or allowance to a public official after service has been rendered?” ' We answer that, the commissioners’ court had authority to make the order.

Section 53 of

article 3 of the Constitution of this state reads: “The Legislature shall have no power to grant;-or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant 'or contractor after service has been rendered or a contract has been entered into, and performed in whole or in part.” By various articles of the statutes the fees to be paid to the county judge are specified. But compensation for ex officio service is provided for by

article 3852, R. S., in this language: “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.” It will be observed that the law does not specify the time when the allowance shall he made before or after the service was rendered.

It is not claimed that there was fraud on the part of the county judge or the court, or that the services rendered were not worth the sum allowed. The sole contention is that the allowance was forbidden by the

section of the Constitution copied herein, because the allowance was made after the services were rendered, and it was-therefore an extra allowance for services rendered. • As before stated, no allowance for, this service had been made,' nor sum paid, before the performance of the duties. The construction of the constitutional provision depends upon the meaning of “extra compensation,'’ as used in article' 3, § 53, of our Constitution, which has been construed to mean any sum given in addition to the contract price or salary.

We quote: “ ‘Extra compensation is such not merely for being greater or less than the contract, but properly because it is outside the contract.’ Carpenter v. State, 39 Wis. 271.” Words and Phrases, vol. 3, p. 2624. • The writer finds it difficult to argue that extra compensation means compensation in addition to that allowed by law or contract. The- import of the language is so plain as to preclude argument. If the law had specified the salary to be allowed, or the commissioners’ court had fixed the amount, then any additional compensation procured after services were rendered would be extra, and forbidden.

It is manifest that the allowance in this instance was not in addition to a previous allowance. Nothing having been paid, or sum fixed, it could not be extra allowance or compensation. Something, cannot be added, to nothing. If the court had allowed the same 'sum before the services were rendered, it would'have been valid. No time being specified for making it, why should it- be- held invalid because made‘after- service rendered? The .county judge was not upon salary, and-no allowance made for other service included this; therefore the sum fixed by the commissioners’ eourt could not be extra.

It was not in addition to anything paid for other services, but was for services distinct from all other official acts. If there were a doubt on this question, a reading of

chapter 3, title, “Fees of Office— County Judge,” must clear the mind of such doubt, for the Legislature declares with great particularity what sum that officer shall receive for each official act, except “ex officio services,” which are enumerated, and are of such character that the compensation must vary in different counties; therefore it was wisely left to the commissioners’ court of each county. The Constitution does not forbid the fixing of compensation after service rendered, but forbids increasing the agreed or prescribed sum after service rendered or work performed.

Had the salary been specified before the ex officio duties were performed, any additional sum would be extra compensation, which the Constitution forbids. No authority has been cited which sustains the contention of the county, and we have found none.

Justice HAWKINS has made a laborious and extensive search into the authorities; but we believe he has found no case which reaches the distinguishing feature of this, that is, additional compensation, not for the same service, but for a distinct service, so recognized and characterized in the statute, and therefore clearly not within the scope of the duties covered by other compensation, which failure on the part of our honored Associate we consider to be a reliable support to our conclusion.