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ed to the trial court, in his pleading and through evidence, definite.field notes or description of such land as had been so held in actual possession for said period, the more equitable and better practice here, under the circumstances, is to yet permit him to do so.

ex officio services.

On the last above-named date, September 14, 1906, the commissioners' court passed an order allowing appellee $75 per month for ex officio services, beginning December 1, 1905, and ending November 30, 1906, and ordered a warrant to be drawn for said amount. At the time said last order was passed appellee and two commissioners voted for it, and two commissioners voted against it. A warrant was drawn for said amount of $675, covering nine months of said time, on the county treasurer, and same was paid.

"The commissioners' court of Dallas county passed the following order, viz.:

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'Upon this the 21st day of September, A. D. 1908, came on to be heard and considered the petition and communication of Dwight L. Lewelling, county attorney, filed herein on September 17, 1908, praying for authority from the commissioners' court to make Dallas county a party plaintiff in suits against Hiram F. Lively and A. B. Rawlins to recover ex officio salaries heretofore paid such officers; also came on for consideration Hiram F. Lively's answer to said communication filed herein on September 19, 1908; and it appearing to the court that Hiram F. Lively performed the ex officio services faithfully during the said term for which the ex officio salary was paid; that Dwight L. Lewelling asks authority to sue for; and it further appearing to the court that said services were faithfully rendered, and no compensation was given therefor, except the said seventy-five ($75.00) per month, ex officio salary; and it further appearing that said salary was fixed by the court and paid in good faith as per order of the commissioners' court made and entered on September 14, A. D. 1906, and we do hereby ratify and confirm the action of this court taken on the said 14th day of September, 1906, in fixing the said ex officio salary of said officer. It is the opinion of this court that there are no merits in equity or justice in the contention of the county attorney as set forth in his said petition; however, it further appearing that Dwight L. Lewelling is the official county attorney of Dallas county, and desired authority to test such matter in the courts of this county, it is the desire of this court that he (Dwight L Lewelling) may have a "free hand" to test the matters complained of in said petition; it is the further desire of this court that in the matters of ex officio salary sought to be recovered from Hiram F. Lively, or any claim he might have against Dallas county for salary unpaid, that there shall be no "pleas of limitation" filed, but that such contentions be tested upon their merits, that justice may be done. It is (upon the request of Hiram F. Lively) therefore ordered and adjudged by the court that Dwight L. Lewelling, county attorney, do have and is heregiven authority to make Dallas county party plaintiff to the suit heretofore filed by him in the district court of Dallas county against Hiram F. Lively, county judge, and individually, and also against A. B. Rawlins, former district clerk of Dallas county.

The judgments of the Court of Civil Appeals and of the district court will be reversed, and the cause remanded to said trial court.

Reversed and remanded.

DALLAS COUNTY v. LIVELY. (No. 2337.) (Supreme Court of Texas. May 28, 1914.) JUDGES (§ 22*)-COMPENSATION-"EXTRA COM

PENSATION.

An allowance to a county judge for ex officio services already performed, no salary having been previously provided, under Rev. St. 1911, art. 3852, authorizing the commissioners' court to allow him a salary for presiding over that court, etc., was not invalid under Const. art. 3, § 44, prohibiting the granting of "any extra compensation, fee or allowance to a public official after service has been rendered," since, no salary having been previously provided for ex officio services, the compensation for which is to be provided for independently of other official acts for which fees are provided, it was not an "extra" allowance (citing Words and Phrases, vol. 3, p. 2624.)

[Ed. Note. For other cases, see Judges, Cent. Dig. 88 75-88, 179; Dec. Dig. § 22.*]

Hawkins, J., dissenting.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Dallas County against H. F. Lively and others. From a judgment for defendant named, plaintiff appealed to the Court of Civil Appeals, which certified a question to the Supreme Court. Question answered.

Dwight Lewelling and Horace Williams, both of Dallas, for appellant. Spence, Knight, Baker & Harris, of Dallas, for appellee.

BROWN, C. J. The honorable Court of Civil Appeals of the Fifth Supreme Judicial District has certified to this court the follow-by ing statement and question:

"Appellant brought this suit against the appellee and the sureties on his official bond to recover the sum of $675, illegally paid him for ex officio services while serving as county judge of said Dallas county. Appellee recovered, and the county appeals.

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W. H. Pippin, Presdg. "It is ordered by the court that the within order be and is hereby made and adopted.

"Aye: W. H. Pippin, R. W. Eaton, H. H. Bennett, C. D. Smith. Co. Judge Lively, present, not voting.'

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"On February 24, 1905, appellee being then judge, the commissioners' court passed an order allowing, 'until further ordered by the court,' the county judge for ex officio services the sum of $100 per month. On June 15, 1905, the order allowing the ex officio salary was rescinded for the reason, in effect, that the time devoted by him to the affairs of the commissioners' court did not justify such allowance. From said time, June 15, 1905, until Septem- In other words, does such order come within ber 14, 1906, there was no further order or the meaning of article 3, § 53, of the Constiagreement in reference to an allowance for ex tution, which prohibits the granting of "any officio services. On the last above-named date, September 14, 1906, there was no further order compensation, fee or allowance to a public or agreement in reference to an allowance for official after service has been rendered?"

Under the foregoing statement did the commissioners' court have authority to make the order of September 14, 1906, allowing for ex officio services for a period already expired?

We answer that the commissioners' court, no allowance made for other service included had authority to make the order. Section 53 this; therefore the sum fixed by the comof article 3 of the Constitution of this state missioners' court could not be extra. It was reads: not in addition to anything paid for other services, but was for services distinct from all other official acts.

"The Legislature shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant ́or contractor after service has been rendered or a contract has been entered into, and performed in whole or in part."

By various articles of the statutes the fees to be paid to the county judge are specified. But compensation for ex officio service is provided for by article 3852, R. S., in this language:

"For presiding over the commissioners' court, ordering elections and making returns thereof, hearing and determining civil causes, and transacting all other official business not otherwise provided for, the county judge shall receive such salary from the county treasury as may be allowed him by order of the commissioners'

court."

It will be observed that the law does not specify the time when the allowance shall be made before or after the service was rendered.

It is not claimed that there was fraud on the part of the county judge or the court, or that the services rendered were not worth the sum allowed. The sole contention is that the allowance was forbidden by the section of the Constitution copied herein, because the allowance was made after the services were rendered, and it was therefore an extra allowance for services rendered.

As before stated, no allowance for this service had been made, nor sum paid, before the performance of the duties. The construction of the constitutional provision depends upon the meaning of "extra compensation," as used in article 3, § 53, of our Constitution, which has been construed to mean any sum given in addition to the contract price or salary. We quote:

If there were a doubt on this question, a reading of chapter 3, title, "Fees of OfficeCounty Judge," must clear the mind of such doubt, for the Legislature declares with great particularity what sum that officer shall receive for each official act, except "ex officio services," which are enumerated, and are of such character that the compensation must vary in different counties; therefore it was wisely left to the commissioners' court of each county. The Constitution does not forbid the fixing of compensation after service rendered, but forbids increasing the agreed or prescribed sum after service rendered or work performed. Had the salary been specified before the ex officio duties were performed, any additional sum would be extra compensation, which the Constitution forbids.

The writer finds it difficult to argue that extra compensation means compensation in addition to that allowed by law or contract. The import of the language is so plain as to preclude argument. If the law had specified the salary to be allowed, or the commissioners' court had fixed the amount, then any additional compensation procured after services were rendered would be extra, and forbidden. It is manifest that the allowance in this instance was not in addition to a previous allowance. Nothing having been paid, or sum fixed, it could not be extra allowance or compensation. Something cannot be added to nothing. If the court had allowed the same 'sum before the services were rendered, it would have been valid. No time being specified for making it, why should it be held invalid because made after service rendered?

No authority has been cited which sustains the contention of the county, and we have found none. Justice HAWKINS has made a laborious and extensive search into the authorities; but we believe he has found no case which reaches the distinguishing feature of this, that is, additional compensation, not for the same service, but for a distinct service, so recognized and characterized in the statute, and therefore clearly not within the scope of the duties covered by other compensation, which failure on the part of our honored Associate we consider to be a reliable support to our conclusion.

HAWKINS, J. (dissenting). Entertaining, as I do, the profoundest respect for the views and opinions of my Associates, it is with great reluctance that I dissent, in any "Extra compensation is such not merely for case; but the far-reaching importance of being greater or less than the contract, but the foregoing decision and the profound conproperly because it is outside the contract.viction in my own mind that said decision Carpenter v. State, 39 Wis. 271." Words and is erroneous, together impel me to do so in Phrases, vol. 3, p. 2624.

this instance.

The facts of this case are set out in the certificate above.

Section 44 of article 3 of the Constitution of Texas is as follows:

"The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant or publie contractors, after such public service shall have been performed or contract entered into for the performance of the same, nor grant by appropriation or otherwise, any amount of money out of the Treasury of the state, to any individual on a claim, real or pretended, when the same shall not have been provided for by pre-existing law, nor employ any one in the name of the state, unless authorized by pre-existing law."

Section 53 of said article 3, which bears more directly upon the only point in the case

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"The Legislature shall have no power to sation, when it reaches the county judge, grant, or to authorize any county or municipal has not been made by the Legislature diauthority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor after service has been rendered,

rectly, as suggested by said section 44; but those two sections of said article 3 should be or a contract has been entered into, and per- | construed together, and, inasmuch as the

formed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the state, under any agreement or contract, made without authority of law."

Stripped of such language as plainly has no direct application to the facts of this case, said constitutional provisions would

stand thus:

*

"The Legislature shall provide by law for the * compensation of all officers not pro# * vided for in this Constitution. The Legislature shall have no power to grant, or to authorize any county authority to grant, any extra compensation, fee or allow ance to a public officer after service has been rendered."

*

*

That the ex officio services of the county judge had been rendered by him prior to September 14, 1906, the date of the order of the commissioners' court making the grant or allowance in his favor, is admitted; indeed, that fact is recited in said order. Said order evidently constituted a "grant" of "compensation," a "grant" of an "allow-be exercised, only by virtue of, and in harmony with the spirit, and not in defiance of the plain letter, of said section 53.

The purpose of this inquiry, in that regard, is merely to ascertain and point out the import, meaning, and intent of said constitutional provisions, and to develop and emphasize the fact that whatever power or authority there is in the commissioners' court to make, to the county judge, any grant of additional, or extra, compensation, or any allowance whatever of pay, for official services which have been theretofore imposed upon him by general law, exists, and must

ance" to the county judge, and that much is conceded; but was such compensation or allowance "extra," within the scope and purpose of said section 53? "Aye, there's

the rub."

If "extra," in that sense, said grant, as to antecedent services, was repugnant to said constitutional provisions, and therefore void, and said certified question should be answered affirmatively; if not "extra," in that sense, said grant was valid, and said certified question should be answered negatively.

mandate in said section 44 to provide by law for compensation of such officers is couched in general terms, and said section 53, by necessary implication, autnorizes the Legislature to delegate that power to proper county authority (which includes the commissioners' court), the constitutionality of said R. S. art. 3852, under which the commissioners' court acted in making the allowance or grant of additional, or extra, compensation in this instance, is not questioned.

The true meaning of "extra," in its proper setting in the context, may best be ascertained by a study of (a) our Constitution itself, (b) the general definition and use of the word, and (c) the decisions of the courts upon the point.

Pursuant to the aforesaid constitutional requirement that "the Legislature shall provide by law for the compensation of all of ficers," our Legislature provided certain compensation for county judges in the form of specific fees for the performance of particular duties, which it imposed upon them. It also imposed upon them certain additional duties for performance of which it did not directly provide additional compensation. However, in further pursuance of said constitutional mandate, it delegated to the commissioners' court, in R. S. art. 3852, hereinbelow quoted, authority to allow to the county judge additional, or extra, compensation, in the form of salary, covering those ex officio duties for the performance of which the Legislature itself, by general law, had not specifically provided compensation.

Consequently, if the language employed therein will reasonably permit, any statute

which attempts to confer upon the commissioners' court power to grant extra compensation, or an extra allowance, or extra remuneration of any kind, to a county judge should be construed by the courts as embodying said constitutional limitation as to the time of the making of such grant in relation to the time of the rendition by him of services theretofore imposed upon him by general law as part of the burdens of his office; and that rule of construction should prevail whether any such limitation be expressed in such statute or not, for, without such limitation, either express or implied, such statute would be manifestly unconstitutional. There is no difficulty whatever about so construing said article 3852.

Said section 44 deals with the subject of "compensation," and each of said sections 44 and 53 deals with the subject of "extra compensation" of four classes of persons in their respective relations to public business; public officers, public agents, public servants, and public contractors, whose compensation is not elsewhere provided for in said Constitution.

Said section 44 makes it the duty of the Legislature to provide by law for compensation of each member of each of said classes.

Each of said sections, independently of the other, peremptorily deprives the Legislature of all power whatever to itself grant to any one belonging to any of those four classes such "extra compensation" after the

happening of a designated event in connec-lic service. What sort of compensation to tion with a contract for public work.

such officer, agent, or servant is thus inhibitSaid section 53, as if to emphasize that ed? Here, also, the answer is obvious: Comfundamental purpose, repeats the general pensation in addition to, or extra of, that limitation upon legislative power which is which the law, as it existed when the servset out in said section 44, and, as if to more ice was rendered, provided for service which certainly make that limitation or inhibition it required of him-compensation in addition pervade the whole field of extra compensa- to, or extra of, that to which he became ention, or additional remuneration, for public titled upon performance of such service, by service and public contract work within this virtue of an existing statute constituting a state, adds to "extra compensation" the direct grant by the Legislature, or by virwords "fee or allowance," although said sec- tue of a previous order of the county or mution 53 apparently seeks to relax, somewhat, nicipal authority, constituting a grant or the rule as to contractors by adding to the allowance under said delegated authority of words "contract entered into" the words the Legislature to provide for the compen"and performed in whole or in part." The sation of all members of any of said four effect to be given to said addition concerning classes. Here, again, the reasons for such incontractors is a matter which is foreign to hibition are apparent. the present inquiry, and upon that point no question is raised, and no opinion is expressed.

In each of these instances, indeed in every instance which can possibly arise under said constitutional provisions concerning extra compensation, whether relating to a member of one or another of said four classes, the inhibition is against the grant of such extra compensation, fee, or allowance after the happening of such designated event, and against that only.

In addition to dealing, as does said section 44, with the direct and original exercise by the Legislature of power to grant "extra compensation, fee, or allowance" to persons within any of said four classes, said section 53 introduces a subject which is not embraced by said section 44, and declares a certain sharply defined and clearly stated limitation upon the power of the Legislature to delegate to court and municipal governments power to make such grants. That limitation is set out above, in said section 53; it speaks for itself.

But, prior to the happening of such event, the compensation or allowance of such contractor for such work, or the compensation, fee, or allowance of such officer, servant, or agent for such service, may be increased in either of the two ways which are indicated by said constitutional provisions: First, by direct action of the Legislature (section 44), or in local matters; secondly, by action of the county or municipal authority, in the exercise of such delegated power (section 53).

Alike, under said section 44 and under said section 53, said inhibition is leveled, not at the grant of compensation, which is permissible, nor yet at the grant of "extra compensation, fee, or allowance," which is likewise permissible, but solely and alone at the grant of "extra compensation, fee, or allowance" if, and when, made after rendition of such public service, or after the entire or partial performance, or possibly after the making of the contract for such work.

In each of said sections 44 and 53, so far as this case goes, said time element, as to the grant of compensation, fee, or allowance, is the subject, and the only subject, of our Constitution's zealous solicitude. Consequently, if such time element be treated as immaterial, the only purpose of said constitutional limitations is thereby absolutely nullified.

"Compensation" and "extra compensation" of all such persons are treated, throughout both of said sections, as correlative and complementary subjects and terms. The one and only thing which is thus so sweepingly and so strenuously inhibited to the Legislature, and through it to county and municipal governments, is, in general terms, the grant of extra compensation under certain specified conditions involving a time element; said conditions being defined, with slight variations as to "contracts," in both of said sections 44 and 53.

For illustration: Once let such contractor complete, and, if section 53 alone is to control on that point, let him but begin work under his contract, or, indeed, if section 44 alone is to control on that point, let him but enter into such contract, it thereupon becomes too late for the Legislature or the county or municipal government, as the case may be, to grant or allow him extra compensation of any character, or in any amount, for work embraced by such contract. What sort of compensation to the contractor is thus inhibited? The answer is obvious: Compensation in addition to, or extra of, that which the contract provided for work which it required of him. The reasons for such inhibition are patent. So it is with regard to every such officer, agent, or servant; the inhibition there being against the grant to him of "extra compensation, fee, or the rendition of such public service in the

Considered separately or together, the cardinal purpose of said sections 44 and 53, in so far as this inquiry is concerned, was | dual in its nature; first, to stamp the emphatic disapproval of the people of this state upon the whole idea of granting, or creating, or conferring, originally, any right to any compensation or pay, or remuneration of any kind, class, or character whatsoever, after

after the performance, in whole or in part, or | office, and had not delegated its power to do possibly even after the making of such con- so, district clerks could look to the Legislatract, in the case of such contractor, and, ture alone for relief-and to it they went, secondly, to firmly embody, in the organic and not in vain. law of the land, such clear and unambiguous language as would inevitably and permanently prevent the Legislature from doing that thing, and from authorizing any county or municipal government to do it. The evident object and purpose was to absolutely extirpate that whole evil in Texas.

All the provisions of said sections 44 and 53 and of other portions of our state Constitution fixing, in advance, the salaries of certain officers, and the general policy indicated in that document as a whole, harmonize with and support the views which are herein pressed as to the meaning of "extra compensation, fee, or allowance."

An important feature of this case is the fact that all ex officio duties of county officers must be performed by them, whether specific compensation be provided therefor or not. Hallman v. Campbell, 57 Tex. 54; Edwards v. McLean, 23 Pa. Super. Ct. R. 43; State of Ohio v. Williams, Auditor of State, 34 Ohio St. 218; State of Washington v. Cheetham, State Auditor, 21 Wash. 437, 58 Pac. 771; 29 Cyc. p. 1423, note 31. The effect of those cases is hereinafter more fully shown.

"For presiding over the commissioners' court, ordering elections and making returns thereof, hearing and determining civil causes, and transacting all other official business not otherwise provided for, the county judge shall receive such salary from the county treasury as may be alex-lowed him by order of the commissioners' court."

Consequently the ex officio services of the county judge covered by said order of September 14, 1906, making said grant or allow ance of salary of $75 per month for one year beginning December 1, 1905, were only such as he was required by pre-existing law and decision, and his oath of office, to perform, as part of the burdens of his office-services which (excepting those involving exercise of discretion) he could have been compelled by mandamus to perform, regardless of the fact that no compensation specifically therefor had then been provided by the Legislature or under its delegated authority. And that would have been true even had the commissioners' court passed, prior to the rendition by the county judge of said services, an order expressly refusing to grant or pay or allow him any salary therefor.

In the Hallman Case, supra, in holding that it was the duty of the district clerk to issue copies of the citation, although there was then no provision of law under which he could get compensation for that service, this court said:

"Under the statute, the issuance without fee of copies of the original citation is one of the burdens devolving upon district clerks as an incident to their office, the relief for which, if any, must be had through the legislative, and not the judicial, department."

True, just there analogy between that case and this breaks down, in that in this case the Legislature has delegated to the commissioners' court power to grant extra compensation, in the form of salary, to the county judge for ex officio services.

R. S. 1911, art. 3852, is as follows:

That decision evidently proceeded upon the theory that the compensation provided by law for the district clerk, in the form of fees, extended to and paid for the performance by him of ex officio services, and that, inasmuch as the Legislature had made no direct grant of other, or additional, or extra compensa

However, that grant of power to the commissioners' court, without which it was powerless to act in the premises (Const. Tex. art. 5, § 18), is, perforce of said constitutional provisions, with the proviso, and upon the condition, that such power be exercised, if at all, before, and not after, rendition by the county judge of the ex officio services to be covered by such other, or additional, or “extra" salary or "compensation."

Correlatively that right of the commissioners' court to grant extra compensation, in the form of salary, to the county judge for ex officio services is a permissive right only; it creates no legal obligation upon which the county judge could, by mandamus, compel the commissioners' court or its members to make an allowance in any particular amount, or in any amount, or upon which he could maintain a suit against the county; the whole matter is left to the discretion of that court. Orr v. Davis, 9 Tex. Civ. App. 628, 30 S. W. 249; Collingsworth County v. Myers (Civ. App.) 35 S. W. 414; State v. McKee, 8 Lea (Tenn.) 24.

"Extra" is defined thus:

"Beyond, or greater than, what is due, usual, expected, or necessary; additional; supernuSomething in merary; as, extra pay or work. addition to what is due, expected, or customary; * * * an added charge or fee. Webster's New International Dictionary. "More than what is usual, or than what is due, appointed, Cenor expected; supplementary; additional. tury Dictionary. "Being over and above what is required, due, expected, or usual; extraordinary; additional; supplementary." New Standard Dictionary.

In common parlance, we say of a laborer, employed by a city, he gets a certain amount, say $1.75 per day of eight hours, and “extra compensation" of a certain amount, say 25 cents per hour, for overtime. Of a teacher in a public school in a district which levies a local tax for school purposes, we say, or used to say, that for his services in teaching the entire school, including pupils within and pupils without the scholastic age, he receives a regular salary of $75 per month, and, as "extra compensation," he receives all the tuition from the "overs and unders," pupils not within "scholastic age." Suppose the

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