author: PLEASANTS, O. J.

text:
    HARRIS COUNTY v. HAMMOND et al.
    (No. 7635.)
    (Court of Civil Appeals of Texas. Galveston.
    April 12, 1918.
    On Motion for Rehearing, May 2, 1918.)
    1. Statutes <&wkey;219 — Construction by Executive Officers — Adoption by Courts.
    Where the construction of a statute is doubtful, the construction given it by the officer of the state expressly charged with the duty of its enforcement is entitled to great weight, and, unless the court is clearly of the opinion that such construction is erroneous, it should not give the statute a different meaning.
    2. Sheriffs and Constables <&wkey;71 — Maximum Amount of Fees of Office — “Fees of all Kinds” — “Charges.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3881, 38S8, 3894, 3895, 3897, 3903, and Code Cr. Proc. 1911, arts. 1142-1149, held, that amounts allowed a sheriff by the commissioners’ court, within the limitation prescribed for the safe-keeping, feeding, and care of prisoners in a county jail, which article 1142 designates “charges,” cannot be regarded as “fees of all hinds,” within section 3881, so as to affect the maximum amount of “fees of office” a sheriff may retain.
    3. Prisons &wkey;>18(2) — Maintenance of Prisoners — “Perquisite”—“Fees of Office.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1911, arts. 3881, 3888, 3889, 3894, 3895, 3897, 3903, and Code Cr. Proc. 1911, arts. 1142-1149, where commissioners’ court, within limitation prescribed, fixes allowance for support and maintenance of prisoners, there can be no accounting between the sheriff and the county, and the sheriff must stand any loss, while if he makes any profit it belongs to him as a “perquisite,” as distinguished from “fees of office,” a “perquisite” being an incidental emolument, profit, gain, or fee over and above the settled fee, income, salary, or wages, something received incidentally and in addition to regular salary, wages, fees, etc.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Perquisite.]
    4. Sheriffs and Constables <&wkey;71 — Allowance for Prisoners — Duty to Account-Fraud and Mistake.
    That the sheriff, in presenting to commissioners’ court his report and account, concealed the actual cost of the safe-keeping, support, and maintenance of prisoners, etc., and that the court in allowing account acted on the mistaken belief that the cost was 40 cents for each prisoner as claimed in the report, when the cost was less, would not authorize, on the grounds of fraud and mistake, reopening of orders of commissioners’ court approving sheriff’s accounts.
    5. Sheriffs and Constables <&wkey;71 — Fees— Accounting.
    In a suit against sheriff for an accounting of fees and other amounts received by him as sheriff, there being no contention that items were not necessary expenses incurred in conduct of sheriff’s office, the court properly allowed him credit for cost and charges paid in civil cases in which the county was not a party, sums advanced to indigent witnesses in other counties served with process in criminal cases, expenses'of conveying defendants in felony cases outside of the county, and expense of obtaining requisition for criminals from other states, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3897, providing that the sheriff shall at the close of each month make a sworn itemized statement of all the actual and necessary expenses incurred by him in the conduct of his office, such as stationery, stamps, telephone, traveling expenses, and other necessary expenses, and, if such expenses be incurred in connection with any particular case, such statement shall name such case, etc.
    6. Sheriffs and Constables <&wkey;71 — Amount of Fees — Determination—“Expenses Necessarily Incurred in Conduct of Office.”
    Sums paid by sheriff for gasoline and repairs for automobile owned and used by him in performing the duties of his office were not expenses necessarily incurred in the conduct of the office, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3897, and the sheriff was not entitled to credit therefor in determining maximum amount of fees, under article 3881.
    7. Statutes &wkey;>285 — Validity—Determination — Use of Journals of Legislature.
    Journals kept by the Legislature cannot be considered by the courts for the purpose of determining whether Const, art. 3, § 30, providing that no law shall be so amended in its passage through either house as to change its. original purpose, has been violated in the passage of a bill.
    8. Sheriffs and Constables <&wkey;71 — Maximum Amount of Fees — Determination.
    • In suit against sheriff to recover fees and amounts received by him in excess of the maximum compensation of $3,000 to which he was entitled under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, the sheriff was properly required to account for fees earned in tax suits; article 3924, providing that any fees of office not embraced within this title shall not be affected by provisions thereof, not applying to maximum fee bill, although found in the same title and chapter.
    9. Sheriffs and Constables <&wkey;29 — Fees— Statutes — Repeal by Implication.
    The intention to alter or change the provisions of the Fee Bill Statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881), which by express terms is applicable to fees of all kinds, cannot be inferred from the fact that it was, in the revision of the statutes, placed under a title which contained a statute relating to a different matter, and which, as originally passed, was not intended to affect the provisions of the maximum fee bill, since laws cannot be repealed or amended by implication in such manner.
    10. Sheriffs and Constables <&wkey;29 — Fees— Statutes — Change bt Codifiers — Subsequent Amendment.
    Since article 3024, placed by the codifier in Rev. St. 1011, tit. 58, did not, before amendment of provisions of such title, fixing maximum fees of officers, affect the same, it is not now applicable to said provisions.
    On Motion for Rehearing.
    11. Sheriffs and Constables <&wkey;71 — -Fees— Statute — Construction.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, fixing maximum amount of fees which may be retained by sheriff and other officers, should not be construed so that maximum compensations of sheriff will be reduced by his having to pay out of his own pocket necessary expenses of conducting his office.
    Appeal from District Court, Harris County; Henry J. Dannanbaum, Judge.
    Suit by the County of Harris against M. B\ Hammond and others. From the judgment rendered, plaintiff appeals.
    Affirmed in part and reversed and rendered in part.
    Jno. H. Crooker and Fisher, Campbell & Amerman, all of Houston, for appellant. Andrews, 'Streetman, Burns & Logue and R. W. Franklin, all of Houston, for appel-lees.
   PLEASANTS, O. J.

This suit was brought by appellant against appellee Frank Hammond, sheriff of Harris county, and his official bondsmen, for an accounting of fees and other amounts received by him as sheriff of said county during the years 1915 and 1916, and for recovery of the amounts so received by him in excess of the maximum compensation of $5,000 allowed him by the statute commonly known and designated as the “Fee Bill.”

The principal items involved in the controversy, and which the sheriff contends are not fees of office for which he is required to accolunt under the provisions of the fee bill, are the amounts allowed and paid him by the commissioners’ court of Harris county for the safe-keeping and support of county prisoners. These amounts were alleged to be $23,621.60 for the year 1915, and $26,-726.40 for the year 1916. The next largest amount claimed by the county was the sum of $1,500 fees in tax suits earned by the sheriff in 1915 and collected by him in 1916.

The trial court sustained an exception interposed by the defendants to the claim of the county that sums allowed the sheriff by the commissioners’ court for the safe-keeping and support of prisoners were fees of office in the purview of the fee bill, and should be reported and accounted for under the provisions of the statute. When this exception was sustained the county amended its petition, and alleged that it was the duty of the sheriff to expend entire amounts allowed him by the commissioners’ court for that purpose in the safe-keeping, support, and maintenance of the county prisoners; that the whole of said amount had not been so expended; and that the sheriff had procured the allowance and payment of his claim for said amounts by the commissioners’ court by falsely representing to said court that he had so expended said amounts. This amendment further alleged that the claims were allowed by the commissioners’ court under a mistake of fact, and prayed that the sheriff be required to render an account showing the sums actually expended by him in the safe-keeping, supxiort, and maintenance of prisoners.

The trial court sustained exceptions to the amendment on the ground that the allowance and payment of the account by the commissioners’ court was a judgment, and that plaintiff’s allegations of fraud and mistake were not sufficient to authorize a reopening of the question determined by such judgment. Defendant’s exceptions to the plaintiff’s claim for an accounting of the fees earned and collected by the sheriff in tax suits were overruled. Other similar items involved in the controversy will be hereinafter mentioned and disposed of.

Appellant’s first assignment of error is as follows:

“The court erred in sustaining the special exception of the defendants, designated in their original answer as paragraph (a) of subdivision IV, and in holding in effect that the amounts paid the sheriff for the safe-keeping, support, and maintenance of prisoners are not ‘fees’ of office, but ‘charges,’ and that the sheriff is entitled to receive and to retain the entire amount allowed him by the commissioners’ court for the safekeeping, support, and maintenance of prisoners, and is not required to take the same into account in arriving at his maximum salary, after taking credit for the actual cost to him incident to the service rendered.
“Said ruling was error in this, that the law does not contemplate that the sheriff should make a profit out of the feeding of prisoners in addition to the maximum salary allowed by law, but that the amounts allowed him for the safekeeping, support, and maintenance of prisoners are paid him by virtue of his office, and all such amounts must be accounted for under the ‘Maximum Fee Bill,’ after deducting his actual expense in performing this duty, as provided in article 3897 of the Revised Statutes of Texas.”

Under this assignment it is urgently insisted that the term “fees of all kinds,” used in article 3881, Vernon’s Sayles’ Texas Civil Statutes, embraced every kind of compensation allowed by law to an officer which ig not expressly excepted by some statutory provision; and, since the allowance to sheriffs for board and safe-keeping of prisoners are not so excepted, such allowances are within the purview of the “fee bill” statute, and must be reported and accounted for by sheriffs in accordance with the provisions of that statute.

The first act of our Legislature limiting the amount of fees which county officers eduld retain as compensation for their official services was passed in 1897. This act as passed did not fis the maximum amount of fees which sheriffs were allowed to retain, but contained provisions exempting certain sums allowed sheriffs from the provisions of the act requiring fees of officers to ae reported and accounted for. Among other receipts of sheriffs mentioned in these exceptions were “all sums received from the county for the safe-keeping, support, and maintenance of prisoners confined in jail.” The only reasonable explanation of the fact that exceptions are found in a bill which does not purport or attempt to limit the compensation of sheriffs is that the bill as introduced did include sheriffs with the other county officers whose maximum compensation was fixed by its provisions, and in its passage through the Legislature it was amended by the provision fixing the maximum amount of fees sheriffs were allowed to retain being stricken out while the exceptions above referred to were left in the bill. It is not material, however, how the thing happened; the fact is from 1897 to 1913 we had a statute excepting certain sums received by sheriffs from the provisions of the statute fixing the maximum compensation of some county officers, but not the compensations of sheriffs.

In 1913 the maximum fee bill was amended by including sheriffs in the list of county officers affected by the provisions of the bill. The statute was further amended by eliminating therefrom the exceptions before mentioned contained in the original act of 1897. The provisions of the statute, the construction and application of which must determine the questions presented by this appeal, are as follows:

Article 3881 provides:

“Hereafter the maximum amount of fees of all kinds that may be retained by any officer mentioned in this section (article) as compensation for services shall be as follows,” etc.

Article 3888 provides:

“The amounts allowed to each officer mentioned in articles 3881 to 3886 inclusive, may be retained out of the fees collected by him under existing laws,” etc.

Article 3889 provides:

“Each officer named in this chapter shall first, out of the fees of his office, pay or be paid the amount allowed him under the provisions of this chapter, together with the salaries of his assistants or deputies. If the fees of such officer collected in any year be more than the amount needed to pay the amount allowed such officer and his assistants and deputies, the same shall be deemed excess fees, and of such excess fees such officer shall retain one-fourth. All amounts received by such officer as fees of his office besides those which he is allowed to retain by the provisions of this chapter shall be paid into the county treasury of such county.”

Article 3894 provides-:

“It shall be the duty of those officials named in articles 3881 to 3S86, and also the sheriffs, to keep a correct statement of the sums coming into their hands as fees and commissions, in a book to be provided by them for that purpose, in which the officer at the time when any fees or money shall come into his hands shall enter the same.”

Article 3895 provides:

“Each officer mentioned in articles 3881 to 3886, and also the sheriff, shall, at the close of each fiscal year, make to the district court of the county in which, he resides a sworn statement showing the amount of fees collected by him during the fiscal year, and the amount of fees charged and not collected, and by whom due,” etc.

Article 3897 is as follows:

“At the close v>f each month of his tenure of such office, each officer whose fees are affected by the provisions of this act shall make as a part of the report now required by law, an itemized and sworn statement of all the actual and necessary expenses incurred by him in the conduct of his said office, such as stationery, stamps, telephone, traveling expenses, and other necessary expense. If such expense be incurred in connection with any particular case, such statement shall name such case. Such expense account shall be subject to the audit of the county auditor, and if it appear that any item of such expense was not incurred by such officer, or that such item was not necessary thereto, such item may be by such auditor or court rejected, in which case the correctness of such item may be adjudicated in any court of competent jurisdiction. The amount of such expense, referred to in this paragraph, shall not be taken to include the salaries of assistants or the deputies which are elsewhere herein provided for. The amount of such expense shall be deducted by the officer in making each such report, from the amount due, if any due, by him to the county under the provisions of this act.”

Article 3903 provides for the appointment of deputies, the fixing of their salary, and the deduction of their salaries from the maximum amount allowed to the various officers under the fee bill.

Article 1142 of the Code of Criminal Procedure, as amended in 1911, is as follows:

“Allowance to sheriff for prisoners. — Por the safe-keeping, support and maintenance of prisoners confined in jail or under guard the sheriff shall be allowed the following charges: (1) Por each prisoner for each day, such amount as may be fixed by the commissioners’ court, provided the same shall be reasonably sufficient as compensation for such service, and in no event shall it be less than forty cents per day for each prisoner, nor more than fifty cents for each prisoner per day. (2) Por necessary medical bill and reasonable extra compensation for attention to a prisoner during sickness, such an amount as the commissioners’ court of the county where the prisoner is confined may determine to be just and proper. (3) The reasonable funeral expenses in case of death.”

Article 1143 of the Code of Criminal Procedure contains a provision with reference to an allowance for guards.

Article 1144 of the Code of Criminal Procedure provides:

“Sheriff shall pay what expenses, to be reimbursed by county. — It is the duty of the sheriff to pay the expenses of jurors empaneled in cases of felony (except when they are paid by the juror himself), the expense of employing and maintaining a guard, and to support and take care of all prisoners, for all of which he shall be reimbursed by the proper county according to the rates fixed in the two preceding articles.”

Article 1145 provides for the presentation of an account for expenses incurred for food and lodging of jurors; and articles 1146 and 1147 provide for the examination, approval, and payment of such account.

Article 1148 provides:

“At each regular term of the commissioners’ court, the sheriff shall present his account to such court for the expenses incurred by him since the last account presented for the safekeeping, support and maintenance of prisoners, including guards employed, if any. Such account shall state the name of each prisoner, and each item of expense incurred on account of such prisoner, and the rate of each item, the name of each guard employed, the length of time employed, and the purpose of such employment, and shall be verified by the affidavit of the sheriff.”

Article 1149 provides:

“The commissioners’ court shall examine the account named in the preceding article, and allow the same, or so much thereof as may be reasonable, and in accordance with law, and shall order a draft to be issued to the sheriff for the amount so allowed, upon the treasurer of the county; and such account shall be filed and safely kept in the office of the clerk of such court.”

' The question of whether the amounts allowed a sheriff by the county for the safekeeping, feeding, and care of prisoners in the county jail, which the statute designates as “charges,” can be regarded as fees of the office of sheriff, in the purview of the maximum fee bill, has not been decided by our Supreme Court, nor by any of our appellate courts.

In the case of City of Austin v. Johns, 62 Tex. 179, our Supreme Court held that commissions allowed a city attorney for collecting money due the city were “fees” of office. The opinion in that case quotes with approval the definition of the word “fees,” as given by both Burrill and Bouvier in their respective Law Dictionaries, as “the reward, compensation, or wages allowed by law to an officer for services performed by him in the discharge of his official duties.” The word is given the same definition in substance in Webster’s Unabridged Dictionary.

The case of Ellis Co. v. Thompson, 95 Tex. 22, 64 S. W. 927, 66 S. W. 48, also holds that commissions allowed a county clerk on fines collected by him are included in the terms “fees of all kinds,” used in the maximum fee bill, and that said term “embraces every kind of compensation allowed by law to a clerk of the county court unless excepted by some provision of the statute.” The only question under consideration by the court in the Thompson Case was whether the commissions allowed a county clerk for collections made by him were included in the term “fees of all kinds” used in the maximum fee bill, and in view of the opinion in the Johns Case, before cited, and the fact that the fee bill expressly required the clerk to keep a correct account of the fees and commissions received by him, we do not think the court could have reasonably held otherwise than that the commissions in controversy had to be accounted for under the fee bill. The broad statement in the opinion that the term “fees of all kinds” used in the fee bill embraces every kind of compensation allowed by law to a clerk of the county court, unless excepted by some provision of the statute, may or- may not be correct. Such holding was not necessary to a decision of the question presented in the case, and is clearly obiter dictum; .but conceding, for the sake of argument, that it is a correct statement of the law, it cannot he regarded as authority for the proposition that the board bill or charges of a sheriff for the feeding and care of prisoners in jail is a fee of office, and must be accounted for under the provisions of the fee bill.

This question has been passed upon by the Attorney General, and in an opinion from that office given upon the request of the county auditor of Dallas county, just after the amendment to the statute placing sheriffs under its provisions went into effect, it is held that the charges allowed a sheriff for the support and care of prisoners in jail are not fees of office, and not subject to the provisions of the fee bill, and such charges “cannot be included in estimating the maximum amount of fees the sheriff may retain.” This opinion has been uniformly .followed by the other officials whose duty it has been to enforce this statute.

While the opinions of the Attorney General are not binding upon the courts, it is a well-recognized rule of decision in this state that when the construction of a statute is doubtful the construction given it toy the officers of the state expressly charged with the duty of its enforcement is entitled to great weight, and, unless the court is clearly of opinion that such construction is erroneous, it should not give the statute a different meaning. Ry. Co. v. State, 81 Tex. 602, 17 S. W. 67; Stevens v. Campbell, 26 Tex. Civ. App. 213, 63 S. W. 161.

If, however, the question had not been passed upon by the Attorney General, and was one of first impression, we would not reach the conclusion that the Legislature intended that the charges of a sheriff for the feeding and care of prisoners in jail should be included in the term “fees of all kinds,” used in the fee bill. We agree with the Attorney General that no recognized legal definition of “fees of office” would include such charges, which “involve special expenditures of money made by the sheriff in the purchase of food for prisoners and in having the same prepared and served to them. It could not be considered a fee of office under the act of 1897, as amended by the act of 1913, so as to affect the maximum amount of fees of office a sheriff might retain.”

Because of the, fact that the price of foodstuff and the costs of its preparation and of serving it to prisoners is liable to fluctuation at any time, the Legislature, we think, wisely authorized the commissioners’ court from time to time to make a fixed allowance for the support and maintenance of prisoners; and when the court, acting under the authority of the statute, fixes this allowance within the limits prescribed by the statute, it . is intended that there should he no accounting between the sheriff and the county in this matter. If it should cost him more than the amount fixed it is his loss, and if he should make some profit it belongs to him as perquisite of the office, for which he is not required to account under the provisions of the maximum fee bill.

Our Constitution in creating the office of sheriff provides that the “duties, perquisites, and fees of office shall be prescribed by the Legislature.” A perquisite, as defined in Century "Dictionary, is “an incidental emolument, profit, gain, or fee, over and above the fixed or settled income, salary, or wages; something received incidentally and in addition to ■ regular salary, wages, fees,” etc. This is a distinct authorization by the Constitution for giving compensation to sheriffs which is separate and distinct from fees of office, and it seems to us that whatever incidental profit or gain may come from allowance made him by the statute for the board and care of prisoners is a perquisite or emolument as distinguished from a fee of office.

With this well-established distinction between perquisites and fees of office, we think, if the Legislature had intended to include perquisites of office other than fees in the provisions of the maximum fee hill, it would have expressed its will in this respect by the employment of apt and appropriate words. These conclusions are supported by decision of courts of other states, among which we cite the following: Feagin v. Comptroller, 42 Ala. 516; Seiler v. State, 160 Ind. 605, 65 N. E. 922, 66 N. E. 946, 67 N. E. 448; State v. Flynn, 161 Ind. 554, 69 N. E. 159; Apple v. County of Crawford, 105 Pa. 300, 51 Am. Rep. 205.

The second assignment of error complains of the ruling of the trial court'sustaining appellee’s exceptions to the allegations of plaintiff’s petition attacking the orders of the commissioners’ court approving defendant’s accounts for the safe-keeping, support, and maintenance of prisoners in jail on the grounds of fraud and mistake. There were no specific allegations of fraud or mistake other than that the sheriff, in presenting his account and report, concealed from the court the actual cost of the safe-keeping, support, and maintenance of the prisoners, and that the court in allowing such accounts acted upon the mistaken belief that the cost was 40 cents for each prisoner, as claimed in the report, when in fact the cost was less than said amount. It follows, from what we have said in disposing of the first assignment, that the trial court did not-err in sustaining exceptions to these allegations of the petition.

Appellant also complains, under appropriate assignments, of the ruling of the trial court in allowing defendant credit in the expense accounts filed by him, under the provisions of article 3897 of the statute before cited, for 1599.40, costs and charges paid by the defendant in civil cases in which the county was not a party, $244.75 advanced by the sheriff to indigent witnesses served by him with process issued in criminal cases in counties other than Harris county, $548.98 expenses of conveying defendants in felony cases outside of Harris county, and $13.50 expenses of obtaining" requisition for criminals from other states.

The iirst of these items was objected to on the ground that the costs and expenses incurred by the sheriff in civil cases must be paid by the litigants themselves, and cannot be madq a charge against the county in suits to which the county was not a party. The other items were objected to on the ground that each of them is a claim- against the state, and the county cannot be held liable therefor. Article 3897 expressly provides that the sheriff shall, at the close of each month, make a sworn itemized statement—

“of all the actual and necessary expenses' incurred by him in the conduct of his said office, such as stationery, stamps, telephone, traveling expenses, and other necessary expense. If such expense be incurred in connection with any particular case, such statement shall name such case. Such expense account shall be subject to the audit of the county auditor, and if it appear that any item of such expense was not incurred by such officer, or that such item was not necessary thereto, such item may be by such auditor or court rejected, in which case the correctness of such item may be adjudicated in any court of competent jurisdiction.”

It is not contended by the appellant .that these items were not necessary expenses incurred in the conduct of the sheriff’s office. The amounts, when collected from the litigants in the civil cases or from the state, must be accounted for by the sheriff. These items are not direct charges against the county, but are only payable out of the fees collected by the sheriff, and, if he is not allowed to charge the fees collected by him with all of the necessary expenses of his office, he will not receive the maximum compensation allowed him by the fee bill. We do not think the court erred in allowing these items.

By the sixth assignment of error appellant complains of the judgment of the tidal court allowing defendant credit, as necessary expense incurred in the conduct of his office, the sum of $1,138.86 paid for gasoline and repairs for automobiles owned and used toy defendant in performing the duties of his office. The evidence shows that these automobiles were used by the defendant to some extent in attending to his private business and social affairs, but the greater portion of their use was in performing the duties of his office. There is no evidence showing what portion of the amount claimed was expended tor gasoline for the automobiles when they were used in the performance of the duties of the office. It goes without saying that defendant was not entitled to credit for the expense of operating the automobiles for his private benefit or pleasure. We are further of opinion that, even when he used the automobiles in performing the duties of his office, the expense of their operation should not b.e regarded as expense necessarily incurred in the conduct of the office. It would hardly be contended that a sheriff could charge his office with feed for his horse or the upkeep and repairs of his buggy, though he often uses both in carrying on the business of his office, and there can be no difference in this respect between the feed for a horse and care and repairs of a buggy and the expense of operating an automobile. We think this assignment should be sustained.

By a cross-assignment appellee assails the ruling of the court overruling defendant’s exception to plaintiff’s petition on the ground that the amendment in chapter 4, tit. 5S, Revised Statutes of 1911, by which sheriffs were placed under the provisions of the maximum fee bill, is void because not passed in the manner prescribed by the Constitution.

The provisions of the Constitution which appellee claims were violated by the Legislature in amending the statute is section 30, art. 3. This section provides that “no law shall be passed, except by bill, and no” law .“shall be so amended in its passage through either house as to change its original purpose.” The bill, which was No. 164, as finally passed and now on file in the office of the Secretary of State, has the following caption: “An act to amend articles 3881, 3882, 3883, 3887, 3889, 3893 and 3903 of the Revised Statutes ox Texas of 1911.” The journal of the house shows that house bill No. 164, when signed by the presiding officer of the house, had the following caption: “An act to . provide for the payment of salaries of all district attorneys and county and precinct officials, and providing that the fees to which they are now entitled shall be collected by them and paid into the county treasury of their respective counties, and abolishing the fees allowed district attorneys.” If we could look to the journal for the purpose of showing the invalidity of a bill which upon its face as finally passed is valid and constitutional, we would be compelled to hold that the provision of the Constitution above quoted was violated in the passage of this bill. It is settled, however, by the decisions of our Supreme Court that the journals kept by the Legislature cannot be considered for this purpose. Williams v. Taylor, 83 Tex. 667, 19 S. W. 156; Knox v. State, 62 Tex. Cr. R. 512, 138 S. W. 787. The reasons for this holding are fully set out in the cases cited, and will not be repeated here.

Under an additional cross-assignment appellee contends that the court erred in not sustaining his exception to the petition on the ground that under article 3924, tit. 58, c. 4, of our Revised Statutes of 1911, which title includes the maximum fee bill, the item of $1,557.96 fees earned in tax suits was not subject to the provisions of the maximum fee bill, and defendant could not be made to account therefor. Article 3924 is as follows:

“Any * * * fees of office not embraced within this title; but otherwise provided for, shall not be affected by the provisions hereof.”

The fees allowed a sheriff in tax suits are not embraced in title 58 of the Revised Statutes, but are provided for in the statute authorizing suits for the collection of delinquent taxes. The maximum fee bill enacted in 1897 Was not passed as an amendment to the statute fixing the fees of officers, but as a separate bill, which did not purport to change the schedule of fees which officers were allowed to 'charge and collect; its purpose being j to require officers to report the fees collected , by them and the necessary expenses of con-i ducting their offices, and limiting the amount- ! of fees each officer could retain after deduct-áng his expenses therefrom. Article 3924, ' above quoted, was- incorporated in the Re- | vised Statutes of 1895 in the title and chapter ; fixing fees of officers. Its obvious purpose in ; the statute in which it was placed was to | avoid any question as to the right of officers to collect fees not embraced in the chapter in j which it was incorporated, hut otherwise pro-I vided for. The schedule of fees fixed in that j chapter does not include fees of officers au-j thorized by provisions of the Criminal Code of Procedure and statutes regulating other matters, both civil and criminal. We think it clear that when the codifiers, in arranging ■ the titles for the Revised Statutes of 1911, j placed the maximum fee bill under the same title with the statute fixing the fees which officers were authorized to collect, they had no intention of applying article 3924 to the provisions of the maximum fee bill, and, if they had so intended, the placing of the two statutes under the same title could not be given that effect. The Legislature in adopting the Revised Statutes of 1911 declared:

“That the provisions of the Revised Statutes, so far as they are substantially the same as the statutes of this state in force at the time when the Revised Statutes shall go into effect, or of the common law in force in this state at said time, shall be construed as continuations thereof, and not as new enactments of the same.” Rev. St. 1911, p. 1720, § 16.

The intention to alter or change the provisions of the fee bill statute, which by express terms is applicable to fees of all kinds, cannot he inferred merely from the fact that it was in the revision of the statutes placed under a title which contained a statute relating to a different matter, and which as originally passed was not intended to effect the provisions of the maximum fee bill. Laws cannot he repealed or amended by implication in this manner. Ry. Co. v. Hill & Norris, 97 Tex. 506, 80 S. W. 368; Hartford Ins. Co. v. Walker, 94 Tex. 473, 61 S. W. 711; Fischer v. Simon, 95 Tex. 234, 66 S. W. 447, 882.

No broader application can be given to article 3924 because of the fact that the act of 1913, amending the maximum fee bill, amends the articles of title 58 of the statute, which now constitute the maximum fee bill. If article 3924 did not affect the provisions of the statute fixing the maximum fees of officers before said statutes were amended, it is not now applicable to said provisions. We think the ruling of the trial court upon this question was correct.

What we have said disposes of all the questions presented by this appeal. In our opinion, the only error in the judgment was the allowance to the defendant of the expenses of operating his automobiles. As to this item the judgment is reversed and judgment here rendered for appellant. In all other respects the judgment is affirmed.

Affirmed in part. Reversed and rendered in part.

On Motion for Rehearing.

Both appellant and appellees have filed motions for rehearing. While nothing is presented in either motion that was not presented in the briefs, we have again considered all of the questions raised, and feel constrained to adhere to the conclusions expressed in our opinion heretofore filed.

In its motion for rehearing appellant requests that we file additional conclusions of law upon the question of the right of the sheriff to include in his monthly expense accounts, which he is required to file under the provisions of article 3S97 of Vernon’s Sayles’ Civil Statutes, expenses incurred by him in civil cases which are charged against the litigants, and expenses incurred in performing services for the state for which the state is obligated to pay him. Upon this question appellant reasserts the following proposition presented in its brief:

“It is improper for an officer to deduct an expense payable by a litigant, or the state, and to charge the same to the county; and when the party made liable by law pays the amount, to take it in and enter it as a fee of office, as this practice improperly swells his fee account, and enables him to get the benefit of illegal excess fees, either in paying himself or for use in his office.”

In disposing of this question in our main opinion we say:

“It is not contended by the appellant that these items were not necessary expenses incurred in the conduct of the sheriff’s office. The amounts, when collected from the litigants in the civil cases or from the state, must be accounted for by the sheriff. These items are not direct charges against the county, but are only payable out of fees collected by the sheriff, and, if he is not allowed to charge the fees collected by him with all of the necessary expenses of his office, he will not receive the maximum compensation allowed him by the fee bill. We do not think the court erred in allowing these items.”

Counsel for appellant seem especially grieved that this court should concern itself. with the question of whether a sheriff receives the maximum compensation allowed him by the statute. It is unnecessary for us to state that we have no concern in the matter other than to interpret the statute as in our opinion it was intended by the Legislature. We think it plain from the language of the statute that the Legislature intended that every sheriff should have the maximum compensation fixed by statute if he earned it, and for this reason provided that he should render a monthly report of all the necessary expenses incurred in the conduct of his office, and such expenses should be paid out of the proceeds of the office collected by the sheriff.

Unless he is allowed to charge these expenses he cannot reimburse himself, and when, as in the present case, the fees collected by him are largely in excess of the maximum compensation allowed him by the statute, he must turn over the excess to the county, and have his maximum compensation reduced by his having to pay necessary expenses of conducting his office out of his own pocket. We do not think the statute should be so construed.

There is no contention that the sheriff in this case, by including the items in controversy in his expense accounts, has received a dollar to which he is not entitled, nor that the county has lost a dollar; but it is insisted that it is not a proper method of bookkeeping, and that under such a system of accounting sheriffs, when the fees collected by him are sufficient, will always receive the maximum compensation allowed by the statute, and will never have to pocket the loss of expenses incurred in the conduct of his office. We think that is just what the statute intended.

From what we have said it follows that the motions should be overruled, and it has been ordered.
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source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    HARRIS COUNTY et al. v. HAMMOND.
    (No. 7634.)
    (Court of Civil Appeals of Texas. Galveston.
    April 12, 1918.
    Rehearings Denied May 2, 1918.)
    1. Sheriffs and Constables <&wkey;71 — Maximum Amount of Fees — Accounting — “Fees of Office.”
    Allowances made the sheriff by commissioners’ court for safekeeping and maintenance of prisoners in jail are not “fees of office,” within the maximum fee bill (Acts 33d Leg. c. 121, § 1 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3881-3883, 3887, 3889, 3893, 3897, 3898]), and need not be reported or accounted for by him by provisions of said bill.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fees.]
    2. Sheriffs and Constables <&wkey;71 — Accounts fob Keeping Prisoners — Sufficiency.
    A sheriff’s accounts for keeping prisoners, giving the name of each person, the date and hour committed, the offense, when and how released, the number of days in jail, and arriving at the amount of the bill by multiplying the number of days by the per diem allowance per prisoner, was not required to be more fully itemized, under Code Or. Proc. 1911, art._ 1148, requiring accounts presented to commissioners’ court for keeping prisoners to state the name of each prisoner and each item of expense incurred On account of each prisoner.

      3. Pkisob-s i&wkey;18(l) — Charges off Sheeieb^-“Day.”
    The sheriff is entitled to per diem allowance of, 40 cents for a prisoner under his contract with commissioners’ court, where a prisoner is in jail for any substantial part of a day, though not an entire day.
    [Ed. Note. — For other definitions; see Words and Phrases, First and Second Series, Day.]
    Appeal from District Court, Harris County; J. D. Harvey, Fudge.
    Suit by Frank Hammond against Harris County and another. From the judgment rendered, defendants appeal.
    Reversed and rendered in part, and affirmed in part.
    Jno. H. Crooker and Fisher, Campbell &■ Amerman, all of Houston, for appellants. R. W. Franklin and Andrews, Streetman, Bums & Logue, all of Houston, for appellee.
   PLEASANTS, C. J.

The following statement of the nature and result of this suit, copied from appellants’ brief and concurred in by the appellee, is a correct and sufficient statement of the cáse:

This suit was filed by Frank Hammond, sheriff of Harris county, against Harris County, to recover the amounts claimed to be due him for the safe-keeping, support, and maintenance of prisoners confined in the jail of Harris county for the month of March, 1917, amounting to $1,776.40, and for the month of April, 1917, amounting to $1,528. ' H. L. Washburn, county auditor, was made a party, with a view to compelling him, by mandamus, if necessary, to approve the accounts. He had previously refused to approve the accounts, because the sheriff- refused to file any other expense account for the safe-keeping, support, and maintenance of prisoners than those he had been filing, a sample of which is attached to his petition. The facts are agreed to, as shown by the agreed findings of fact by th.e court.

Harris county and H. L. Washburn, county auditor, answered the plaintiff’s petition, their answers being practically identical, excepting generally and specially to the petition of plaintiff, and answering to the merits. By such exceptions the sufficiency of plaintiff’s accounts were assailed upon the grounds that article 1148 of the Code of Criminal Procedure requires that such account for the safe-keeping, support, and maintenance must “state the name of each prisoner, and each item of expense incurred on account of each prisoner, and the date of each itein.”

An examination of the accounts filed, which are attached as original exhibits to the petition, Will disclose that the only information contained in the account was the name of the .prisoner, the court from which committed, the date and hour committed, the offense, when and how released, and the number of days in jail. The amount of the bill was arrived at by multiplying the number of days by 40 cents, the per diem allowance per prisoner.

The county contended in its pleadings that it was the duty of the sheriff to file an itemized expense account showing each item of expense incurred by him for the safe-keeping, support, and maintenance of prisoners, especially the actual cost of purchasing, preparing, and serving their food, and that until a report in substantial compliance with article 1148, Code of Criminal Procedure, was filed, the county was not required to pay the sheriff anything.

The general and special exceptions of the defendants were overruled, to which action error is assigned.

Harris county and the auditor further alleged that the actual cost of the sheriff for the safekeeping, support, and maintenance of prisoners did not exceed 15 cents per day per prisoner, and that he was presenting his accounts upon a basis of 40 cents per day per prisoner, and was claiming the difference as an emolument of office, and that, if Harris county paid the accounts, its action would be final in this regard. It also offered to pay, without prejudice, the actual cost to the sheriff for the safe-keeping, support, and maintenance of prisoners.

The county also alleged that charges for a full day had been made by the sheriff, where prisoners had been confined but fractional parts of days.

By way of cross-action, the county of Harris and the county auditor prayed for a writ of mandamus to compel the sheriff to file (1) an itemized report in accordance with article 114S, Oode of Criminal Procedure, showing, among other requisites, the actual cost of feeding prisoners ; (2) the monthly reports required by article 3897, Yernon’s Sayles’ Ann. Civ. St. 1914, showing “an itemized and sworn statement of all the actual and necessary expenses incurred by him in the conduct of his said office,” especially the actual cost of the safe-keeping, support, and maintenance of prisoners.

The plaintiff replied by supplemental petition, excepting to defendants’ answer, in so far as the same sought to compel a more detailed expense account under article 1148, Code of Criminal Procedure, than the ones filed by him. He excepted generally and specially to the cross-action, seeking a mandamus to compel the reports under article 1148, Code of Criminal Procedure, and article 3897, Revised Statutes of 1914 (Vernon’s Sayles’ Ann. Civ. St. 1014).

Upon the trial, the facts set out in the court’s findings were agreed to be true, and upon a hearing the court rendered judgment as follows;

(1) He overruled the general and special exceptions of the defendants.

(2) He overruled the general and special exceptions of the plaintiff, contained in his supplemental petition.

(3) He rendered judgment for the plaintiff for the full amount sued for, allowing 40 cents per day for each prisoner confined for a day or any fraction thereof.

(4) He denied the prayer of the defendants for a mandamus to compel an itemized account under article 1148, Code of Criminal Procedure, and held the accounts filed as sufficient.

(5) He held that the amounts paid the sheriff for the safe-keeping, support, and maintenance of prisoners were fees of office, and must be accounted for after deducting the expenses, as provided for under article 3897, and granted the prayed-for writ of mandamus, as prayed'. To this judgment all parties excepted and gave notice of appeal.

There is no fact issue in the case, and the sole matters presented on appeal by appellants are;

(1) Are the accounts filed by the sheriff in compliance with article 1148 of the Code of Criminal Procedure?

(2) Are the “charges” allowed the sheriff under the provisions of the Code of Criminal Procedure to be treated as fees of office under the maximum fee bill, and must the expenses incurred by the sheriff in the safe-keeping, support, and maintenance of prisoners be reported under article 3897 of the Revised Statutes?

(3) Did the court err in allowing the account, for the full sum of 40 cents per prisoner per dayf with full allowance for fractional days?

(4) Did the court err in not granting a writ of mandamus for the full period from December 1, 1914?

Prom this statement it is apparent that the main question presented for our determination is whether the allowances made the sheriff by the commissioners’ court for the safe-keeping, support, and maintenance of prisoners in jail are fees of office in the purview of the maximum fee bill, and must, by the provisions of said bill, be reported and accounted for by him. We have fully considered and discussed this question in an opinion this day filed by us in a companion case to this, styled Harris County v. Frank Hammond et al., 203 S. W. 445, and have reached the conclusion that such allowances are not embraced in the term “fees of all kinds” used in the maximum fee bill, and the sheriff is not required to account therefor. We refer to the opinion in the case above mentioned for a full statement of our views upon this question.

Our conclusions upon the other questions presented are that the trial court correctly held that the accounts presented by the sheriff were not required to be more fully itemized in compliance with article 1148 of the Code of Criminal Procedure, and that the accounts as presented should have been approved by the auditor and paid by the county.

We also agree with the trial court that the allowance of 40 cents per day for the board and care of prisoners is for each day the prisoner is in jail, regardless of,whether he remains in jail the whole of the day. If the prisoner is kept ini jail'for any substantial portion of the day, the sheriff is entitled to the 40 cents. Dallas County v. Reynolds, 199 S. W. 702.

It follows, from our conclusions upon the question of the application of the maximum, fee bill to the allowances to the sheriff for board and care of prisoners, that a sheriff is not required to make a report of the amounts expended for such purpose, and therefore the trial court erred in. granting the mandamus, asked by the defendant, to compel the sheriff to make such report, and that portion of the judgment must be reversed, and judgment here rendered, denying the prayer for such niandamus. In all other respects ,the judgment is affirmed.

Reversed and rendered in part. Affirmed in part.
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author: GRAVES, J.

text:
    CURTIN v. HARRIS COUNTY et al.
    (No. 7644.)
    (Court of Civil Appeals of Texas. Galveston.
    April 19, 1918.
    Rehearing Denied May 9, 1918.)
    1. Taxation <&wkey;545 — Collectoes — Compensation-Statute.
    Maximum. Fee Bill of 1913 (Acts 33d Deg. c. 121, § 1 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3881-3883, 3887, 3889, 3893, 3897, 3898]), amending Acts 25th Leg. (1st Sp. Sess.) c. 5, § 10 et seq., fixing the maximum amount of fees that may be retained by named officers, did not repeal Terrell Election Law, § 144 (Rev. St. 1911, art. 2986), providing that county tax collector whose salary is fixed by the fee bill shall receive 10 cents for each poll tax receipt issued by him, and a tax collector is entitled to retain such fee in addition to the maximum fixed by the fee bill.
    2. Taxation <&wkey;549(3) —. Coiaectobs — Fees — Pbepabation op Delinquent Tax Rule Fee.
    Under Acts 34th Leg. c. 147, § 2 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7687b), requiring the county tax collector to prepare delinquent tax rolls in duplicate, and section 3 (article 7688a), providing that 'he shall be allowed five cents for each and every line of yearly delinquencies entered of said delinquent record or supplement, only one charge can be made for preparation of both original and duplicate rolls.
    3. Taxation <&wkey;549(3) — Collectoes — Fees — Amount—“Fees op All Kinds.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3881, 3883, 3889, 3893-3895, 3897, fixing maximum amount of “fees of all kinds” that may be retained by named officers, a county tax collector is not entitled to receive and retain as his own, in addition to the amount allowed by the foregoing sections, the compensation provided by Acts 34th Leg. c. 147, §§ 2, 3 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 7687b, 7688a), for making up delinquent tax rolls and collecting delinquent taxes, such compensation being included within the term “fees of all kinds,” used in article 3881.
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Suit by Harris County against H. M. Cur-tin, in which the • state intervened, and in which defendant filed a cross-action against plaintiff. From the judgment rendered Cur-tin appeals.
    Affirmed in part and reversed and rendered in part.
    Baker, Botts, Parker & Garwood, of Houston, for appellant. B. F. Looney, J. C. Wall, and G. B. Smedley, all of Austin, for the State. John H. Crooker and Fisher, Campbell & Amerman, all of Houston (B. F. Louis, of Houston, of counsel), for appellee Harris County.
   GRAVES, J.

This case involves a construction of various statutes relating to what may be both received and retained by a county tax collector in return fOr.his services and by virtue of being such officer. Because in the main it clearly and succinctly presents the issues, and is conceded by the other litigants to be a correct general statement, the following summary of the nature and result of the suit, with very slight changes, is taken from appellant’s brief:

Harris county, through its district attorney and county attorney, filed this suit against H. M. Curtin, formerly tax collector of Harris county, for the recovery of certain moneys which were alleged to he due by Mr. Curtin as excess fees of office. The state of Texas, through the Attorney General, intervened, claiming a portion of these moneys to be due the state.

Mr. Curtin became tax collector of Harris county in April, 1917, for the purpose of filling an unexpired term, and held the office from the date of his appointment until November of the same year. The specific items involved in the litigation are as follows:

First. Curtin retained a 10-cent fee each for the issuance of poll tax receipts, as provided by section 144 of the Terrell Election Law. The county contends that that section of the Terrell Election Law was repealed and abrogated by the Pee Bill of 1913; that, therefore, Curtin was not entitled to retain this commission for issuing poll tax receipts. The amount of this item is $112.

Second. Curtin prepared a supplemental delinquent tax roll for the county, under the act of 1915 (House Bill No. 40), and the county paid him therefor five cents per line, issuing him in -payment a voucher on the county’s general funds for $2,529.20. The county now contends that it should recover this sum from Cur-tin, because, under the Maximum Pee Bill Act of 1913, he could only retain $4,250 per annum as fees of office, and that, therefore, this sum paid him by the county for making up the delinquent tax roll should be returned to the county as excess fees.

Third. Curtin retained 5 per cent, for the collection of delinquent taxes due the county and subdivisions of the county. These taxes were retained by him under section 3 of the act of 1915, allowing collectors 5 per cent, for collecting delinquent taxes. The county contends that this commission should be returned to it as excess fees of office; that it was not the intention of the act of 1915 to allow the fees provided therein in addition to the maximum compensation allowed by the fee bill. The amount of this 5 per cent, commission for collecting delinquent taxes claimed by Harris county is $2,123.94.

Fourth. Curtin collected certain delinquent taxes due the state of Texas upon which he retained a 5 per cent, commission. The state of Texas intervened, claiming that these commissions were wrongfully retained by Mr. Cur-tin, on the theory that he had not complied with the requirements of the act of 1915, in many respects, under which statute he claimed the right to retain these commissions, and because of his noncomplianee the commissions could not be charged by him. The amount of the 5 per cent, commissions involved in the controversy with the state is $1,174.97. Harris county made the contention that if these commissions were really earned under the Act of 1915, that they should be recovered by the county as excess fees. The trial court held they were not earned in the first instance; that, therefore, Curtin was not entitled to retain them; and that the state was entitled to judgment for the amount of these commissions that had been retained.

Fifth, When Curtin prepared the delinquent tax roll for which the county paid him $2,529.-20, he prepared at the same time the duplicate rolls required by the statute, which were filed with the comptroller, and he presented his bill to the county for five cents per line for the original and duplicate rolls. The county paid him five cents per line for the original roll, and this is the sum for which it recovered judgment as excess fees, but declined to pay him five cents per line for the duplicate roll.

Curtin, in a cross-action, sought judgment against the county for this five cents per line for the duplicate roll, the amount involved in this cross-action being $2,529.20.

The trial court made the following findings, embodying them in the judgment of the court:

“(1) That under the Pee Bill of 1913 the county tax collector can, in no event, retain in excess of $4,250 for his services rendered in that capacity.
“(2) That the fees prescribed for issuing poll tax receipts and for making out unrendered tax rolls are a part of the income of the office, and are not additional compensation, and are not compensation to be retained by the tax collector in addition to the maximum allowed him by the act of 1913.
“(3) That the 5 per cent, allowed the tax collector under the act of 1915 is a part of the income of the office, subject to the provisions of the maximum salary allowed by the act of 1913.
“(4) That before the tax collector is entitled to receive the 5 per cent, for delinquent taxes as provided in the act of 1915, he must substantially perform all of the duties of said act imposed upon him, and the mere mailing of a postal card to a small percentage of the delinquent taxpayers is not sufficient; in other words, the 5 per cent, claimed by the tax collector has not been earned as a fee of office because all of the provisions of the act of 1915 were not substantially complied with by him.
“It is therefore ordered, adjudged, and decreed by the court that the plaintiff Harris county do have and recover of the defendant H. M. Cur-tin $2,259.20, which is the compensation collected by H. M. Curtin for the preparation of supplemental delinquent tax roll, and the further sum of $112, which is the sum of money received by said Curtin as fees of office for issuing poll tax receipts, and the further sum of $2,123.94, which is the sum of money that was received by said Curtin as 5 per cent, upon delinquent taxes, other than state taxes, collected by him as fees of office during his incumbency in office. The total sum adjudged Harris county against the defendant Curtin being $4,765.14, and that this judgment bear interest from December 1, 1916, at the.rate of 6 per cent, per annum.
“And it is further ordered, adjudged, and decreed by the court that the state of Texas do have and recover of the defendant H. M. Curtin the sum of $1,174.97, which sum is 5 per cent, upon delinquent taxes collected by said Curtin for the state of Texas during his incumbency in office, and that this judgment bear interest at the rate of 6 per cent, per annum from December 1, 1916, for all of which let execution issue.
“It is further ordered, adjudged, and decreed by the court that plaintiff Harris county take nothing herein on its claim for the $1,174.97 item decreed to the state.
“It is further ordered, adjudged, and decreed by the court that the defendant Curtin take nothing in his cross-action against Harris county, in which he seeks judgment for .five cents per line for the duplicate supplemental delinquent tax roll, prepared by him during his incumbency in office.”

The judgment so rendered below is now before this court upon appeal of the former tax collector.

We have given careful consideration to each position taken in his general attack upon the trial court’s judgment, but find fault with it only in its denial of a recovery to appellant for the $112 retained by him for the issuance of poll tax receipts, and in its corresponding finding that lie could not retain that much in excess of the $4,250 maximum allowed him under the amended fee hill of 1913; we therefore sustain his first assignment raising the issue as to that item, and overrule all others. In thus announcing the conclusion reached, it is not thought essential that a greatly extended statement of the considerations, upon which it is based be made.

We think the right of the collector to retain this sum for poll tax receipts and certificates depends along upon whether or not the amendment of the Maximum Fee Bill of 1913, embodied in chapter 4, tit. 58, of Revised Statutes (Vernon’s Sayles’ Ann. Civ. St. 1914), repealed section 144 of the Terrell Election Law, now article 2986, Revised Statutes, expressly allowing it; in other words, since article 2986 previously stood apart by itself, and neither was included within nor was any express reference made to it or its subject-matter in the amended fee bill of 1913, it still remains so separate and distinct, and Mr. Curtin is entitled to retain the fees collected under it, unless this act of 1913, by necessary implication, repealed it.

This is indeed the position of appellee Harris county, although it then insists that such repeal took place. The appellant, however, while denying that an implied repeal resulted, further contends that, even if these fees specified in article 2986 are such as would otherwise come within the purview of the fee bill, since they are not in fact included within its provisions, but are provided for in a different title, that relating to elections, they are consequently expressly allowed to him under article 3924, Revised Statutes of 1911, reading as follows:

“Any other fees of office not embraced within this title, but otherwise provided for, shall not be affected by the provisions hereof.”

But this court, in construing that article in the recent case of County of Harris v. M. F. Hammond, 203 S. W. 445 (No. 7635), and not yet officially reported, held that, although now embraced within the same chapter and title, it was not intended to limit or affect the provisions of the maximum fee bill. It was there said in part:

“Article 3924, above quoted, was incorporated in the Revised Statute of 1895 in the title and chapter fixing fees of officers. Its obvious purpose in the statute in which it was placed was to avoid any question as to the right of officers to collect fees not embraced in the chapter in which it was incorporated, but otherwise provided for. The schedule of fees fixed in that chapter does not include fees of officers authorized by provisions of the Criminal Code of Procedure and statutes regulating other matters, both civil and criminal. We think it dear that when the codifiers, in arranging the title for the Revised Statutes of 1911, placed the maximum fee bill under the same title with the statute fixing the fees which officers were authorized to collect, they had no intention of applying artide 3924 to the provision of the maximum fee bill, and, if they had so intended, the placing of the two statutes under the same title could not be given that effect.”

The opinion in that case is referred to for a more extended discussion of this court’s view as to the purpose of that statute.

We accordingly return to the question of the implied repeal of article 2986, allowing this poll tax fee. As already indicated, it was originally passed in 1905 as section 144 of the Terrell Election Law, but now appears under the number given in title 49, relating to elections, and, after providing that tax collectors generally shall be paid a specified amount for each poll tax receipt and exemption , certificate issued, further recites:

“Provided, that collectors, whose salaries are fixed by what is known as the fee bill, shall receive ten cents for each poll tax receipt and certificate of exemption issued by him, and such fees shall be ex officio and not accountable under said fee bill.”

The “fee bill” referred to in this statute at the time of its passage in 1905 meant the act in relation to fees of office then in force; that is, the act of 1897, which, as stated, was amended in 1913, when it became what is now known as the Maximum Fee Bill, and was embraced within present chapter 4, tit. 58, Revised Statutes. At that time, however, the poll tax statute of 1905 — that is, section 144 of the Terrell Election Law — had been carried forward into the Revised Statutes, and then appeared therein, as it still does, as article 2986. Moreover, both pieces of legislation throughout their history have appeared under different titles, and still do, the poll tax statute being a part of the- title relating to “Elections,” while the fee bill is now and has always been a part of that relating to “Fees of Office.” Under the amendments of 1913 the fee bill in substance provides: “Hereafter the maximum amount of fees of all kinds that may be retained by any officer mentioned in this section shall be as followsand the maximum amount is then provided for, its various terms being general in form and character.

So that, when looking to determine whether this subsequent fee bill as amended repealed by implication a pre-existing section of the Terrell Election Law, we are confronted with the fact that the two enactments have always been separate and distinct parts of different titles in the body of our statutes; that they neither regulate the same specific subject nor carry a like form or character; that the later enactment is general and positive in effect, while the prior one is particular and expressed in negative terms; that not only does the amended fee bill make no direct or express reference to the pre-exist-ing statute allowing this 10 cents each for poll tax receipts and certificates, as has above been mentioned, but there was, further, no attempt made through any of its provisions to amend or in any way change the poll tax statute, nor was any language used from which the implication would arise that the Legislature had any intention of repealing such prior provision of the Election Law, tlie existence of which it presumably had in. mind when it later came to amend the fee bill.

Moreover, there is neither unavoidable inconsistency nor necessary repugnance between these statutes. Under the fee bill the express provision is that all amounts received by such officer, as fees of his office, besides those which he is allowed to retain under that act, shall be paid into the treasury. Under article 2980, in an entirely different title and chapter, dealing with an entirely different subject, with reference to elections, the Legislature allows to the collector of taxes the sum in dispute, not as 'fees of office, but made expressly ex officio, and not accountable under the fee bill; that is, the older law, negative in its character, expressly excepts from -the fee bill the ex officio fees allowed the collector for poll tax receipts and exemption certificates; whereas the later one, general in its form and nature, neither makes express reference to this special statute, nor undertakes to repeal any law in particular, but merely amends certain articles of an entirely different title relating to another subject.

Under the conditions recited, to hold that article 2986 was so impliedly repealed would, it seems to us, do violence to the well-settled rule of construction that repeals by implication are not favored. Cole v. State, 106 Tex. 472, 170 S. W. 1036; Sutherland on Statutory Construction, § 138. Our conclusion is that there was no such repeal, and that the tax collector was entitled to retain the $112 involved.

As to the other items than that for poll tax receipts adjudged adversely to him below, appellant’s position is that, under the provisions of the act of 1915 (House Bill No. 40, Acts 1915, c. 147, p. 250), and particularly sections 2 and 3 thereof, he was entitled to both receive and retain them as his own, in addition to the maximum amount allowed him by the fee bill of 1913, and was not required to account for any of them to the county or state.

It was undisputed that he received and retained the maximum amount of compensation allowed him under the fee bill as tax collector, and paid to Harris county some excess fees, after paying all of his expenses of office and deputy hire. It was also conceded that he fully performed the services entitling him to charge and receive the sum of $2,529.20 for the preparation of the original delinquent tax roll, the only dispute over that item being as to his right to retain and not account for it, the county further contending that in no event was he allowed to charge for the duplicate roll.

This statute of 1915, invoked by appellant, imposed additional duties upon county tax collectors, among them, in certain instances, to make up delinquent tax rolls; it prescribed in detail the method of, and made their performance mandatory, and then fixed penalties for failure to perform such new duties. Section 2, among Other details not material to this inquiry, requires that these delinquent rolls be prepared in duplicate, one copy to be filed in the county clerk’s office of the particular county, the other to be furnished to the Comptroller of Public Accounts. The only provision in the Act with reference to compensation for this work is found in that part of section 3 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7688a) reading as follows:

“The tax collector shall, in addition to the compensation and costs now allowed by law, be entitled for making up the delinquent record or supplement thereto where necessary under this act, the sum of 5 cents for each and every line of yearly delinquencies entered on said delinquent record or supplement, such compensation to be paid out of the general fund of the county upon the completion of said record or supplement. The tax collector shall also receive a commission of 5 per cent, on the amount of all delinquent taxes collected in addition to the commissions now allowed him by law.”

It will be noted that this provision does not limit the 5 cents per line of compensation allowed to the preparation of either the original or duplicate rolls, nor is the duplicate even mentioned therein, and the proof here showed that the duplicate in this instance was merely a carbon copy of, and, of course, made at the same time with, the original. It is not a thing unthinkable, but rather a frequent occurrence, that new duties are required of county officers for which no compensation is provided, many illustrations of which might be mentioned. This compensation is for every line of yearly delinquencies, and the entry of the line on the delinquent record or supplement, a single service, is what the payment is provided for. If the collector is allowed the same amount for the duplicate also, it appears to us that he would be collecting for twice as many yearly delinquencies as in fact existed. We think the plain import of the language used indicates the Legislature’s intention to allow but one charge for the preparation of both the original and duplicate rolls, and, if it had intended otherwise, the purpose both would and could have been so expressly declared by merely adding some such clause as, “and 5 cents per line for the duplicate.” In wh’at seems to us to be an analogous case (E. Hallman v. R. F. Campbell, 57 Tex. 54), the Supreme Court held it will not be inferred that the Legislature, although as in this instance requiring the additional service, intended by implication to allow fees therefor not expressly provided.

Concerning the items claimed for the collection of both state and county delinquent taxes, the proof showed a failure to comply with a number of the detailed requirements of the act of 1915, supra, which appellant admits, but insists that there was such a substantial compliance with its provisions as entitled him to receive and retain the amounts sought. After examining the statement of facts, however, we think the evidence amply sustains the trial court’s fourth finding of fact in reference to these 5 per cent, commissions, which concludes as follows:

“The 5 per cent, claimed by the tax collector has not been earned as a fee of office because all of the provisions of the act of 1915 were not substantially complied with by him.”

Moreover, we deem it unnecessary to set out the evidence showing in what respects he failed to meet the, requirements of the statute, or to elaborate the considerations upon which we approve the trial court’s conclusions of both fact and law upon this phase of the case, in view of our further conclusion that it was the tax collector’s duty to turn in and account for these commissions, even if they had been fully earned, which is next stated.

It is our view that, even if appellant had been entitled to charge separately for both the original and duplicate delinquent rolls, and had further so complied with the requirements of the act of 1915 as otherwise entitled him to receive the amounts claimed for collecting delinquent taxes, neither of which conditions have we found existed, he would still not have been entitled to th'e judgment sought as to any of these items, because they were all such fees of office as came within and were subject to account according to the provisions of the amended fee bill, the maximum compensation under which he had already retained. We are unable to agree with appellant that the above-quoted section 3 of the act of 1915 contemplates the allowance of the amounts therein specified in addition to the maximum sum provided for in the fee bill but rather that the terms “compensation” and “commissions” now allowed by law, as there used, meant the same thing and had sole reference to the provisions of article 7654, Revised Statutes, which fixes the compensation of tax collectors. This latter article had been in effect for a number of years, and not only used the word “compensation” in designating the return to such' officers for the collection of taxes, but provided the only commissions allowed them for that service at the time this act of 1915 became effective. Furthermore, the fact must not here be lost sight of that this latter act was an amendment of the tax statutes, and not the fee bill, and that its terms did not authorize the collector to retain any sum whatever. In other words, we think the Legislature merely intended thereby to allow a compensation to the collector of 5 cents per line, and 5 per cent, on delinquent taxes, in addition to the compensation fixed by article 7654.

Nor does it seem to us the further conclusion can he escaped that all compensation, commissions, and fees of the tax collector, other than those for poll tax receipts, supra, are to be considered in determining the salary he is to receive under the fee bill. That legislation, in too unmistakable a way, emphasizes and reiterates that such was its evident purpose. As indicative of that intent, we make the following partial abstract of some of the provisions of the amendment of 1913: ;

“Art. 3881. Hereafter the maximum amount of fees of all kinds that may be retained by any officer mentioned in this section (article) as compensation for services shall be as follows,” etc.
“Art. 3883. In counties containing a city of over twenty-five thousand inhabitants, * * * the following amount of fees shall be allowed, viz.: * * * Collector of taxes, an amount not exceeding twenty-seven hundred and fifty dollars per annum,” etc.
“Art. 3889. Each officer named in this chapter shall first, out of the fees of his office, pay or be paid, the amount allowed him, under the provisions of this chapter, together with the salaries of his assistants or deputies. If the fees of such office collected in any year be more than the amount needed to pay the amount allowed such officer and his assistants and deputies, same shall be deemed excess fees, and of such excess fees such officer shall retain one-fourth; and in counties * * * in which county the population exceeds 38,000, until such one-fourth amounts to the sum of fifteen hundred dollars. * * * All amounts received by such officer as fees of his office besides those which he is allowed to retain by the provisions of this chapter, shall be paid into the county treasury of such county.”
“Art. 3893. * * * In cases where the compensation and excess fees which the officers are allowed to retain shall not reach the maximum provided for in this chapter, the commissioners’ court shall allow compensation for ex-officio services when, in their judgment, such compensation is necessary: Provided, such compensation for ex-officio services allowed shall not increase the compensation of the official beyond the maximum amount of compensation and excess fees allowed to be retained by him under this chapter.
“Art. 3894. It shall be the duty of those officials named in articles 3881 to 3886, and also the sheriffs, to keep a correct statement of the sums coming into their hands as fees and commissions,” etc.
“Art. 3895. Each officer mentioned in articles 3881 to 3886, and also the sheriff, shall, at the close of each fiscal year, make to the district court of the county in which he resides a sworn statement showing the amount of fees collected by him during the fiscal year,” etc.
“Art. 3897. At the close of each month of his tenure of such office each officer whose fees are affected by the provisions of this act shall make, as a part of the report now required by law, an itemized and sworn statement of all the actual and necessary expenses incurred by him in the conduct of his said office,” etc. Vernon’s Sayles’ Ann. Civ. St. 1914.

We think the term “fees of all kinds,” thus used in article 3881, embraces the kinds of compensation to the tax collector provided for in sections 2 and 3 of the act of 1915, and consequently such fees are not exempt from the operation of the fee bill; in other words, that the principle applied by our Supreme Court in Austin v. Johns, 62 Tex. 179, and Ellis County v. Thompson, 95 Tex. 22, 64 S. W. 927, 66 S. W. 48, where commissions allowed a city attorney for collecting money due the city, and a county clerk on fines collected by him, were held to be included in this identical term “fees of all kinds,” used in the fee bill' then in force, is equally applicable here.

Nor is this conclusion in conflict with our other holding in the County of Harris v. Hammond Case, supra, that “charges” allowed a sheriff for the safe-keeping, feeding, and care of prisoners in jail are not included within the sáme language. The distinction is clearly drawn by the Chief Justice in the Hammond Case, and that opinion is referred to without further discussion here.

In our opinion the only error in the judgment below was the denial of a recovery to appellant of the $112 for poll tax receipts and exemption certificates. As to that item it will be reversed, and judgment here rendered for appellant, but in all other respects will be affirmed.

Affirmed in part. Reversed and rendered in part.
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author: MOURSUND, J.

text:
    CITY OF SAN MARCOS v. INTERNATIONAL & G. N. RY. CO. et al.
    (No. 6023.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 1, 1918.)
    1. Railroads <&wkey;95(8) — Crossings — Penalties — Receivers.
    Rev. St. 1911, art. 1068, authorizing recovery of penalty from railroad for failure to repair crossings after notice, being penal, and not mentioning recovery from railroad receiver, does not authorize action for the penalty against a receiver.
    2. Railroads <&wkey;95(8) —Crossing — Penalties — Receivers.
    , Mere fact that receiver for railroad was appointed under federal statutes, requiring him to operate the road according to state laws, did not render him liable for penalty provided by Rev. _ St. 1911, art. 1068, for failure to repair crossing, after notice; since such statute does not apply to receivers, and a federal receiver is in the same position as a state receiver.
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Action by the City of San Marcos, against the International & Great Northern Railway Company and others; dismissed as to the Company, and prosecuted against James A. Baker, as receiver of such Company. Judgment dismissing the action, and the City appeals.
    Affirmed.
    See, also, 167 S. W. 292.
    R. E. McKie, of San Marcos, for appellant. Fisher & Fisher and Robert Thompson, all of Austin, and Dabney & King, of Houston, for appellees.
   MOURSUND, J.

This is an action by the city of San Marcos to collect statutory penalty under article 1068,' R. S. 1911,' which reads as follows:

“It shall be the duty of every railroad company in this state to place and keep that portion of its roadbed and right of way over or across which any public street of any incorporated town or village may run, in proper condition for the use of the traveling public; and, in case of its failure to do so for thirty days after written notice given to the section boss of the section where such work or repairs are needed, by the town marshal of such town or village, it shall be liable to a penalty of twenty-five dollars for each and every week such railroad may fail or neglect to comply with the requirements of this article, recoverable in any court having jurisdiction of the amount involved, in a suit in the name of such town or village.”

The suit was originally brought against the International & Great Northern Railway Company and Cecil Lyon and James A. Baker, receivers, but after the death of Lyon, plaintiff, by amended petition, dismissed as to the railway company, and prosecuted its suit against James A. Baker, as receiver, for penalties alleged to have accrued since the qualification of the receivers on August 10, 1914, up to and including September 10, 1916, which were alleged to aggregate $2,700. It was alleged that on or about December 7, 1911, the city of San Marcos “caused to be given in the manner required by law written notice to the section foreman or boss of said railway company who had charge of the section where said Guadalupe street crosses said roadbed and right of way,” demanding that the crossing be placed in condition for the use of the traveling public. The court sustained a general demurrer and special exceptions, which really constituted general demurrers, and dismissed the suit.

The rulings involved raise the following questions: (1) Can the penalties provided for by article 1068, R. S. 1911, be collected from a receiver for failure to place crossing in proper condition during the existence of the receivership ? (2) If so, is notice given to the section foreman of the railway company prior to the appointment of the receiver notice to the receiver?

Article 1068, hereinbefore copied, does not mention receivers, and, being penal In its nature, cannot be extended beyond the scope of the terms employed therein so as to include receivers. Turner v. Gross, 83 Tex. 21S, 18 S. W. 578, 15 L. R. A. 262; Bonner v. Co-Op. Ass’n, 4 Tex. Civ. App. 166, 23 S. W. 317; Campbell v. Wiess, 25 S. W. 1076; Railway v. Shelter, 58 S. W. 179. Appellant relies upon the cases of Clark v. Dyer, 81 Tex. 343, 16 S. W. 1061, and Railway v. Bender, 87 Tex. 99, 26 S. W. 1047. These cases were considered in the cases of Bonner v. Co-Op. Ass’n and Railway v. Shetter, supra, and found to be distinguishable from cases involving a suit for statutory penalty.

Appellant relies upon the fact that Baker was appointed by the federal court; the theory being that the federal statutes requiring receivers appointed by the federal courts in possession of property to manage and operate the same according to the requirements of the laws of the state in which the property is situated makes the receiver liable for any penalty prescribed for failure to comply with a statute of the state. There is no merit in this contention. The liability must rest solely on the state statute, and under the rules for construing penal statutes, receivers cannot be held to be included. A receiver appointed by a federal court would be in tbe same position as one appointed by a state court.

We conclude that the court did not err in sustaining the general demurrer. It becomes unnecessary to consider the question of notice.

The judgment is affirmed.
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author: BROOKE, J.

text:
    PAINE v. ECKHARDT et al.
    (No. 360.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 25, 1918.)
    1. Physicians and Surgeons &wkey;>22 — Recovery for Services — Showing Right to Practice,.
    A physician to recover for services' must show compliance with Vernon’s Sayles’ Ann. Civ, St. 1914, art. 5736, regulating the practice of medicine, and declaring unlawful practice without such compliance.
    2. Pleading <&wkey;374 — Joint Cause oe Action.
    To recover for services as on a joint cause of action, plaintiffs must show a copartnership or other interest giving such right.
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by TV. R. Eckhardt and another against Otis W. Paine. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Love & Pouts, of Houston, for appellant-Jno. R. Burkett and L. A. Adamson, both of Houston, for appellees.
   BROOKE, J.

This was an action for debt brought by appellees, who were plaintiffs below, against appellant. The appellees appear to have been practicing physicians in the city of Houston. The case was tried before the court without a jury, and resulted in a judgment in favor of appellees in the sum- of $500. Appellant filed his motion for new trial, which was overruled, and notice of appeal given, and the case is properly before this court for revision.

The contentions of appellant are, among other things, that the judgment of the court is contrary to and unauthorized by law, in that both the pleadings and the evidence failed to show that the plaintiffs, or either of them, had complied with the requirements of law, and especially with the provisions of article 5736, Vernon’s Sayles’ Civil Statutes, in that the pleadings failed to allege, and the evidence to show, that the plaintiffs, or either of them, had complied with the statute regulating the practice of medicine, and the evidence totally failed to show such facts. This contention must be sustained.

In the first place, the pleadings in the plaintiffs’ original petition, and the first and second amended original petitions, axe. fatally defective in this respect, and if the pleadings were not totally deficient in the lower court, it was by reason of a trial amendment, by which they alleged by trial amendment that they were on August 6,1912, and prior thereto, duly licensed physicians, under the laws of the state of Texas. Under this allegation, it is much to be doubted if the pleadings were then sufficient to show that they had complied with the statute regulating the practice of medicine. However, if it be presumed that such was the case, it still must be held that the finding of the court, wherein it is found that the plaintiffs herein, Eckhardt and Weir, are both licensed practicing physicians, and have been for several years, and were on August 8, 1912, and continuously thereafter, to the date of the trial, was totally and absolutely shown by the statement of facts to be not founded upon any testimony that is shown by this record. Eckhardt testified that he was a practicing physician. Weir testified:

“I am a practicing physician and have been engaged in the practice in Houston for about ten years.”

That being the extent of the testimony, and nothing found in the record upon which the court could base its said finding, we are of opinion that the finding is not warranted. Article 5736, Sayles’ Annotated Oivil Statutes, provides:

“It shall be unlawful for any one to practice medicine in any of its branches upon human beings within the limits of this state, who has not registered in the district clerk’s office in the county in which he resides his authority for so practicing as here prescribed, together with his age, post office address, place of birth, school of practice, to which he professes to belong, subscribed and verified by oath, which if willfully false, shall subject the applicant to conviction and punishment for false swearing, as provided by law. The fact of such oath and record shall be endorsed by the district clerk upon the certificate. The holder of the certificate must have the same recorded upon each change of residence to another county, and the absence of said record shall be prima facie evidence of the want of such certificate.”

In the case of Wilson v. Vick, 93 Tex. 88, 53 S. W. 576, it is held that a physician who has a diploma from a recognized medical school, duly recorded, is entitled to practice medicine without obtaining a certificate from the board of medical examiners. However, a contrary decision, in Kenedy v. Schultz, 6 Tex. Civ. App. 461, 25 S. W. 667, has been held to be correct, under the provisions of Revised Statutes of 1879, art. 3638, which prohibited practicing without obtaining a certificate from the medical board, but which said statute was omitted from the revision of 1895. See Wickes-Nease v. Watts, 30 Tex. Civ. App. 515, 70 S. W. 1001; Dowdell v. McBride, 18 Tex. Civ. App. 645, 45 S. W. 397. The state of this record, therefore, showing no testimony-which would warrant ^he conclusion of the court that appellees could recover for professional services without compliance with the statutes regulating the practice of medicine, even if the same had been properly pleaded, is fatal to this cause. Wooley v. Bell, 33 Tex. Civ. App. 399, 76 S. W. 797.

There is one other matter which is evidenced by this record, and that is that the pleadings and the evidence do not show any copartnership or other interest of appellees in the right to compensation of the other by which they could maintain or recover upon a joint cause of action. This also is fatal to the appellees in this case.

Such being the state of the record, it follows that this cause must be reversed and remanded.
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author: JENKINS, J.

text:
    WESTERN ASSUR. CO. OF TORONTO, CANADA, v. BUSCH et al.
    (No. 5906.)
    (Court of Civil Appeals of Texas. Austin.
    March 27, 1918.
    Rehearing Denied May 1, 1918.)
    1. Insurance <&wkey;668 (4) — Trial — Direction op Verdict.
    It is error to direct a verdict for insured if there is evidence that the premises were vacant, sufficient to make a jury question.
    2. Trial &wkey;>139(l) — Direction op Verdict.
    If it could reasonably be supposed that the minds of unprejudiced’ men of ordinary intelligence might differ, as to weight of testimony or the deductions therefrom, the question is for the jury.'
    3. Insurance <&wkey;668 (4) — Eire Policy — Vacancy — Question for Jury.
    Evidence, in action on fire policy, held -insufficient to raise jury question as to whether premises insured were vacant at the time of the fire.
    Error from McLennan County Court; Jas. P. Alexander, Judge.
    Action by August A. Busch and others against the Western Assurance Company of Toronto, Canada. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error. Stribling & Stribling, of Waco, for defendants in error.
   Findings of Eact.

JENKINS, J.

On March 29, 1914,' the plaintiff in error issued to the defendant in error a policy on a house in Mart, McLen-nan county, Tex., described in the policy as being used for the storage of ic-e and beer. Tnereafter, before the expiration of the time for which the building was insured, it was totally destroyed by fire. The building had teen so used prior to July, 1914, at which time local option ,was adopted in the precinct in which Mart is located, and at and for two years prior to the time of the fire it was used toy the Mart Ice Company for the storage of salt and iron pipes. There were three or four tons of salt in the building at the time of the fire. The insurance agent had issued policies on this house when it was used for the storage of ice and beer, and subsequent policies continued to so describe it. This fact was doubtless ■ overlooked by both the agent and the insured. The policy contemplated a change of use, provided such change did not render the risk more hazardous. There was no evidence that a building used for the storage of salt and iron pipes is a more hazardous risk than one used for the storage of ice and beer. The court instructed the jury to return a verdict for plaintiff. The defense was that " the house was vacant at the time of the fire, and had been for more than ten days prior thereto.

Opinion.

The controlling issue on this appeal is whether or not there was evidence as to vacancy of sufficient probative force to require the submission of that issue to the jury. If so, it was reversible error for the court to instruct a verdict. Lee v. Railway Co., 89 Tex. 588, 36 S. W. 63; Wallace v. Oil Co., 91 Tex. 21, 40 S. W. 399; Stevenson v. Pullman Co., 26 S. W. 112; Johnston v. Drought, 22 S. W. 290; Look v. Bailey, 164 S. W. 407.

The test as to the conclusiveness of the evidence is, Could it reasonably be supposed that the minds of unprejudiced men of ordinary intelligence might differ about it, either as to the weight to be given to the testimony or to the deduction drawn therefrom? McCartney v. McCartney, 53 S. W. 390; Railway Co. v. Harris, 22 Tex. Civ. App. 16, 53 S. W. 600; Casualty Co. v. Nelson, 153 S. W. 676; Railway Co. v. Frazer, 182 S. W. 1161; Lee v. Railway Co., supra. If so, it is a question for the jury; if not, it is a question of law for the court. Lumber Co. v. Railway Co., 164 S. W. 404; Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658; Tel. Co. v. Burgess, 60 S. W. 1025.

M. L. Elliott, who was working for the Mart Ice & Light Company at the time of the fire, and for four years prior thereto, testified:

“I should think there were three or four tons of salt in there at the time of the fire. * * * We were using this house for the purpose of storing salt. I was in and out of there every few days. * * * I remember the- day the building burned;' up to that time we were continually putting salt in there, and I was going in and out of there and using it for the purpose of salt, and also for the purpose of storing our pipe fittings for safety, where it could be cared for. We were using this continually in connection with our business. We were using it at the time it burned. * * * I suppose we had been using the building for the storage of salt there for a couple of years.”

N. P. Gillespie, a citizen of Mart, also testified that the building had been used for the storage of salt.

The only other testimony on this issue was that of H. W. Edwards, a citizen of Mart, who was working at a gin near by, and who passed the building on Saturday before it was burned on Sunday night. On direct examination he testified that, “It was vacant; it was empty.” His cross-examination shows that he did not mean that it was vacant in a legal sense. He said:

“There was junk pipe there. The house was not empty. When I said a while ago that the house was empty, I did not mean there was nothing in it at all. I do not undertake to say there was nothing else in the house; there might have been something else in it; I did not investigate to see.” ■

By “vacant” this witness evidently meant that he did not see anyone doing business in the house. He said:

“X meant I did hot see anybody going in and out of the building working there. * * * While I was working there at the gin they might have been going in and out there doing business at that house. I do not undertake to state that they were not.”

We do not think that the evidence- of this witness, when taken as a whole, as against the testimony of Elliott, furnishes even a scintilla of evidence that the building was vacant at the time of the fire, or had been since the issuance of a policy. There is nothing in the record to cast suspicion on the testimony of either of the witnesses. In Ins. Co. v. Cobb, 180 S. W. 156, the court says':

“Under the weight), of authority, ‘vacant’ means entire abandonment, deprived of contents, empty.”

This language is to be construed in its ordinary significance. It does not mean, where the use to which a building had previously been put has been abandoned, that leaving a few worthless articles therein would prevent its becoming vacant. When, however, articles of substantial value are left or placed therein, the building cannot be said to be vacant

No érror appearing of record, the judgment of the trial court is affirmed.

Affirmed.
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