JOHNSON, Tax Collector, v. SMITH, Comptroller of Public Accounts, 246 S.W. 1013

PIERSON, J.

Article 7491, R. S. 1911, as amended by the Thirty-Fifth Legislature, conferred authority upon the comptroller of public accounts and made it his duty “to appoint and contract with some suitable person or persons whose duty it shall be to look specially after, sue for and'collect the taxes” (inheritance taxes) provided for by

chapter 166 (Vernon’s Ann. Civ. St. Supp. 1918, Art. 7491), fixing the maximum compensation to be received by such person or persons at 10 per cent, of the amount of taxes collected and providing that the compensation due should be paid to such person by the collector of taxes out of taxes collected. Under authority of this enactment, on the 21st day of January, 1919, the comptroller entered into a written contract with Jno. T. Smith, Wm. Woodall, and M. M. McFarland to do and perform the services provided for in said act.

Said contract provided for the maximum compensation and was to continue in force and effect until January 1, 1921, a period of approximately two years. The Thirty-Sixth Legislature (Acts 36th Leg. [1919] c. 164 [Vernon’s Ann. Civ. St. Supp. 1922, art. 7491]) amended said

article 7491 as amended by the Thirty-Fifth Legislature, substituting for and leaving out all the provisions under which the aforesaid contract was made. This

article so amended became effective June 18, 1919. On October 17, 1919, through the efforts of Smith and associates a certain collection of such inheritance taxes was made in Grayson county. Out of the taxes collected relator paid them the 10 per cent, commission provided in tlieir contract, but, on the advice of the Attorney General, the comptroller refused to credit relator’s account with the amount so paid.

Relator’s right to a mandamus to require respondent to enter such credit depends upon the validity of the contract between Smith and associates and the comptroller on October 17, 1919, the date of the collection of the taxes. Respondent’s chief contention is that the Thirty-Sixth Legislature repealed

article 7491, as amended by the Thirty-Eifth Legislature, and that the contract by and between Smith and associates and the comptroller fell with it; that said article, as amended by the Thirty-Eifth Legislature and the contract under it created a public office, and that the Legislature had the authority and that it did abrogate and discontinue same. First, however, we notice three other issues raised by respondent.

He presents that relator, the tax collector, was not a party to the contract and has no such interest as to entitle him to maintain this suit; that he cannot plead the nullity of a law impairing the obligations of this contract; that his rights are only incidentally affected by the law impairing its obligations. If the contract with Smith and associates was still operative and valid, then it was the duty of relator to pay over to them the commission due them under it, as provided in the law under which the contract was executed.

It would follow, having performed this duty, that he would be entitled to have such amount credited to him. by the comptroller. 1-Ie would have the same right to bring and prosecute this suit to require the comptroller to credit him on his account as he would have to defend against a suit by the state against him and his bondsmen for said amount, and to show that he had paid same to Smith and associates under authority of said contract and the law authorizing it, and to maintain that said payment was legal in all respects. Respondent insists that the

article of the statute under which the contract was made did not authorize a contract for any fixed or definite period of time, and therefore the contract was without authority and unenforceable. It would be unreasonable to hold that the Legislature authorized and instructed the comptroller to make a contract with some suitable person or persons who would render diligent aid in the collection of inheritance taxes and perform services that would entail much outlay of time, energy, and expense, and yet limit same to a contract at will. No suitable person or persons would be willing to enter into such a contract.

It must be implied that the authority given included the making of a contract for a given or definite period of time. Neither do we think respondent’s proposition that the provision in said contract that ' Smith and associates may “subcontract with competent persons throughout the state” invalidates the contract. That paragraph of the contract is not material here. Even if that paragraph should be held to have exceeded the authority given by -the statute, yet .the contract otherwise would not be rendered nugatory and void thereby.

The contract entered into between the comptroller and Smith and associates, under the authority of

article 7491 as amended by the Thirty-Eifth Legislature did not create a public office, but was a contract which is protected by

section 16, art. 1, of the -Constitution of Texas which provides that no “law impairing the obligation of contracts, shall be made” and also by

section 10, art. 1. of the Constitution of the United States. Morris v. State, 62 Tex. 743; Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 802; U. S. v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516; Long Island Water Supply Co. v. Brooklin, 166 U. S. 685,17 Sup. Ct. 718, 41 L. Ed. 1165; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629. We think there can be no doubt that the Thirty-Sixth Legislature did repeal

article 7491 as amended' by the Thirty-Eifth Legislature, by substituting for it in its entirety. It was competent for the Legislature to repeal or so amend

article 7491 as to change the plan for collecting inheritance taxes and to withdraw the authority for other contracts under its provision. This it did, but in doing so it did not and could not affect or terminate prior contracts legally entered into under said authority. There is. nothing in the

article as amended by the Thirty-Sixth Legislature which manifests an intent to affect or avoid prior contracts.

Article 7491 as amended by the Thirty-Fifth Legislature .directed and made it the duty of the comptroller to “contract with some suitable person” and provided the duties to be performed by the person “so contracted with” limiting the compensation to be fixed by said contract to a commission of not to exceed 10 per cent, and provided how it should be paid.

It is true that the statute made it the duty of the comptroller to “appoint and contract,” and refers to the appointee of the comptroller, yet the effect of the statute was to authorize and direct the comptroller to “contract with some suitable person” to be selected by him. The Supreme Court of the United States in the case of U. S. v. Hartwell, supra, in distinguishing between a government office and a government contract, said: “An office is a public station, or employment, conferred by the appointment of government.

The term embraces the ideas of tenure, duration, emolument, and duties. * * * A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects.

The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.” The contract of Smith and associates with the state was specific in its objects and limited in duration, the duration being a matter of agreement in the making of the contract, the duties were defined and neither could withdraw therefrom without the consent of the other. Could it be maintained that Smith and associates could resign from their contract as from an office and withdraw from their obligations thereunder and have their $10,000 bond canceled at their will?

We think not. Their bond and their contract were for the performance of their obligations for the term of the contract. The able attorneys for respondent insist that to hold that the Legislature could not repeal the law so as to terminate this and similar contracts would be against public policy and disastrous to the public good. The state, like individuals, especially when •entering into private contracts, must first well consider what contracts it will enter into or authorize, with the view of having them performed according to their terms.

When the State becomes a party to a contract with a citizen, the same law applies to it as under like conditions governs the contracts of individuals. Anderson v. Robison (Tex. Sup.) 229 S. W. 459, 238 S. W. 883, and cases there cited. The writ of mandamus is granted. CURETON, C. J., took no

part in the decision of this ease. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes