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here involved is a simple one, as applied to contractors, but is sometimes more difficult as applied to officers, agents, and servants.

paid as theretofore, he should thereafter receive a salary of $75 per month, but "no extra compensation or allowance"; would any one contend that it was still lawful to allow Shelby County v. Gibson, 18 Tex. Civ. App. and pay him the tuition from the "overs and 121, 44 S. W. 302, decided by the San Antonio unders," in addition to the $75 salary? But, Court of Civil Appeals, in which this court if the law, as amended, should go further and denied a writ of error, involved circumauthorize the board of trustees to allow such stances which were held to establish the fact teacher, in addition to said salary of $75, ex- that the contractor, and not the county, was tra compensation not exceeding the amount responsible for his having to tear down cerof tuition to be derived from the "overs and tain defective brickwork in the construction unders," provided same be allowed by said of the courthouse under contract. The alboard before the beginning of the scholastic lowance which the commissioners' court made term, but not afterward, could it be reason-him therefor, in excess of the contract price, ably denied that the purpose and effect of the was "extra compensation" within the meanamended statute was to permit the board to ing of, and was prohibited by, said section 53 grant or allow to such teacher such extra of article 3 of our state Constitution. That compensation if it be done seasonably, but was held void because it was "extra" of the otherwise to forbid it? amount which the contractor might legally demand under the previous status. See, also, Nichols v. State, 11 Tex. Civ. App. 327, 32 S. W. 452; and State of Texas v. Haldeman (Civ. App.) 163 S. W. 1020, recently decided both by the Austin Court of Civil Appeals, in which this court denied a writ of error, and Swift v. State of New York, 26 Hun (N. Y.) 510.

Farmer v. Shaw, 93 Tex. 445, 55 S. W. 1117, and the case at bar both arose under the very same statute (R. S. art. 3852 (2450] [2386], supra). That case, as does this, involved a grant, by a commissioners' court, of extra compensation to a county judge for ex officio services. In construing said statute in connection with another which allowed certain fees to the county judge, for the purpose of determining, not when, but how much, "extra compensation" that court might legally allow the county judge for ex officio services, this court, through then Chief Justice Gaines, said:

In my opinion "extra compensation, fee, or allowance," as used in said section 53 of article 3 of the Constitution of Texas, clearly means "compensation, fee, or allowance" extra of, or in excess of, or in addition to, the particular amount of compensation, fee, or allowance which such public officer, agent, servant, or contractor had a legal right to demand under the status which existed prior to the grant in question. In a sense it includes any change in compensation. Carpenter v. State, 39 Wis. 271. As applied to the facts of the case at bar, “extra compensation, fee, or allowance" means, simply, compensation, fee, or allowance extra of, in excess of, or in addition to, such compensation, in fees or otherwise, as the county judge had a legal right to demand prior to the adoption by the commissioners' court of the above-mentioned order of date September 14, 1906.

Now, to what compensation or fees was the county judge, at that time, entitled for performance of all of the duties of his office, including ex officio services? What did he then have a legal right to demand? Only, as we have seen, the fees fixed directly, by the Legislature, by general statute, and aggregating, let us assume for purposes of illustration, $4,000. That certainly constituted what said section 44 calls "compensation," which the Legislature was therein directed to provide. Said salary of $75 per month, mentioned in said order of September 14, 1906, also certainly "compensation * allowance" to him for "public service," and, as related to said aggregate amount which had been so directly granted to him by the Legislature for "public service," which aggregate our Constitution evidently makes

was

*

the base of calculation or estimate in such matters, was, beyond room for doubt, "extra," and therefore such as said Constitution so sternly declares shall not be granted after service rendered.

**

The meaning of "extra compensation" in such constitutional provisions is well developed in harmony with the views herein express

"It was to be presumed that, in making that allowance, under the new law, the commissionamount allowed by statute and would scale bis ers' court would take into consideration the salary accordingly."

A similar rule should be applied in determining, in this case, what is "compensation,” as a preliminary step in ascertaining, not how much, but when, such "extra compenSation" may legally be allowed; which is to say that, in answering said certified question, "extra compensation" should be construed and held to relate and refer back, as to and for an antecedent, to the aggregate of "compensation" to which this county judge

was entitled, for official services, under the

status which existed down to the adoption of said order of September 14, 1906.

Edwards v. McLean, supra, arose under section 11 of article 3 of the Constitution of Pennsylvania, which provided:

"No bill shall be passed giving any extra compensation to any public officer, servant, employee, agent, or contractor, after services shall have been rendered or contract made, nor prothe commonwealth, without previous authority viding for the payment of any claim against

The services of the constable, for which he claimed extra compensation, were rendered before the passage of two statutes which, upon their faces, provided for payment of such services. The syllabus of the case states that the court held that said statutes "are unconstitutional as violative of article 3, 11, of the Constitution, which forbids legislation giving any extra compensation to public officers after services have been rendered." The following is from the opinion in that case:

It is also true that in the Pennsylvania case the grant or allowance was made directly by the Legislature, while in this case it was made by the commissioners' court under authority conferred by the Legislature; but that difference is immaterial here, because our Constitution includes both of those bodies in the inhibition against the granting of "extra compensation, fees, or allowance" after the rendition of services.

It is also true that under the Constitution and laws of Texas the authority of the commissioners' court to make such allowance to the county judge in advance of the rendition of the services in question was undeniable; but it is likewise undeniable that the Pennsylvania Legislature also had unquestionable authority to provide such additional compensation to the constable, only, however, in advance of the rendition by him of such services. The cases are alike upon the essential point in each case, which is that the clear

"The appellant had, as appears from the averments of his petition, already served a term as constable of the ninth ward of the city of Wilkes-Barre when he accepted the office for the term during which he rendered the services for which he in this proceeding seeks to obtain compensation; he was therefore by provisions of section 111 of the act of April 15, 1834 (P. L. 557), left perfectly free to accept or decline the office. When he accepted, he is presumed to have known the nature and duties of the office and the compensation which thereto appertained. Among the duties which he was required by law to perform was that of attend- authority to grant the extra compensation ing at all elections held in his ward, and mak-in question was not exercised before the ing certain returns to the court of quarter service was rendered-a failure which was sessions. Act July 2, 1839 (P. L. 519), and Act May 13, 1887 (P. L. 108). He took the office fatal in the cited case, and which, for the subject to these burdens. The compensation same reason, is fatal here. which the officer was entitled to receive for the discharge of his official duties was regulated by the act of May 23, 1893 (P. L. 117). Fenner v. Luzerne County, 167 Pa. 632 [31 Atl. 862]. That statute provided compensation for the discharge of his official duties by the allowance of fees for many of such services; but no special compensation was allowed for making returns to the court of quarter sessions or being present at elections. This was the state of the law when the services for which the appellant now seeks to recover were performed. The appellant performed all the duties of his office, receiving such compensation as was at that time authorized by law, and now bases his assertion of a right to recover additional compensation, in the nature of special fees not allowable at the time the services were rendered, under the provisions of the acts of June 15, 1897 (P. L. 165), and July 2, 1901 (P. L. 609). Those statutes are exclusively retrospective in their provisions; each of them provides for the pay

ment of constables for services rendered prior to their enactment, and neither of them makes any attempt to regulate the fees to be paid in the future. Legislation of this character is in violation of article 3, § 11, of the Constitution [quoting it, as above]. The provisions of this section are broad enough to cover all public services rendered by any public officer which, under the law at the time he accepts office, it becomes his duty to perform. This section relates only to an increase of compensation after the services required by law have been rendered, and is not to be confused with section 13 of the same article, which relates to an increase of compensation for services to be rendered in the future."

It will be observed that the services of the constable in the Pennsylvania case were of similar character to those of the county judge in this case, and that the legal status under which the services in that case and this arose were exactly similar to the extent that in both instances they were required by law, when rendered, although the compensation of the officer, in the form of specific fees, fixed by statute, included none for those particular services.

The Pennsylvania decision could not have been based upon the theory that the services of the constable which formed the basis of his claim were "without previous authority of law," for, as we have seen, the court, in rendering that decision, expressly declared that said services were rendered in performance of "duties which he was required by law to perform," and that he knew that fact when he accepted his office, and that he took it "subject to these burdens."

United States v. North, 112 U. S. 510, 5 Sup. Ct. 285, 28 L. Ed. 808, arose under an act of Congress of July 19, 1848, c. 104, § 5, 9 Stat. 248, which, in general terms, provided:

musicians, and privates engaged in the mili-
"That the officers, noncommissioned officers,
tary service of the United States in the war
with Mexico, and who served out the time of
* * * hon-
their engagement, or have been
shall be entitled
orably discharged,
to receive three months' extra pay," etc.

**

$4

Mr. Chief Justice Waite, speaking for that court, said:

"The pay they were to receive was evidently that which they were receiving at the end of their engagement, or when they were honorably discharged. The language is, 'shall be entitled to receive three months' extra pay,' evidently meaning the same pay they would have received if they had remained in the same service three months longer. It follows that, as North was serving at sea when he was ordered away, he was entitled to three months' sea pay, and, as Emory was mustered out of his service in the war as lieutenant colonel of volunteers, his pay must be in accordance with that rank."

In Ohio v. Williams, supra, two subordinate officers of the Senate sought, by mandamus, to compel the auditor to issue warrants for additional compensation which had been granted them for, and after rendition by them of, public services, for which services

the general and pre-existing statutes of Ohio, alogy between the two cases, upon the issue, provided a fixed per diem. One of the con- is complete. tentions of the auditor, in support of his refusal to issue such warrants, was that, because the grant of such additional compensation was made after service rendered, it was violative of the following provision of section 29 of article 2 of the Constitution of that state:

"No extra compensation shall be made to any officer, public agent, or contractor, after the service shall have been rendered or the contract entered into," etc.

That contention of the auditor was upheld by the Supreme Court of Ohio in an opinion in which, after quoting said section 29 in full, and after specifically referring to that portion thereof which is set out above, that court said:

by the terms of their original employment, and as to them a writ of mandamus was properly allowed. But the resolution as to the others recited that they had been compelled to work on an average of fourteen hours per day, and directed "that said clerks be allowed compensation for one-fourth time

extra in consideration of said extra work." In their cases refusal of the auditor to issue warrants was based on section 25, art.

“This language is very broad, and was intended to embrace all persons who may have rendered services for the public in any capacity whatever, in pursuance of law, and in which the compensation for the services rendered is fixed by law, as well as persons who have per-2, of the Constitution of the state of Washformed or agreed to perform services in which ington, as follows: the public is interested, in pursuance of contracts that may have been entered into in pursuance of law, and in which the price or consideration to be received by the contractor for the thing done, or to be done, is fixed by the terms of the contract. In the first, compensation, in addition to that fixed by law at the time the services were rendered, and, in the second, the allowance of compensation, in addition to that stipulated in the contract, is inhibited by the first clause of the section."

Another case of like nature and like result, in part, is the State of Washington v. Cheetham, supra, in which employés of the Senate demanded warrants for compensation which the Senate, by resolutions, had allowed them for and subsequent to the rendition of the services, extra of the per diem which had been previously allowed for their compensation as such employés. The resolution as to Delbridge and Miller recited performance by them of services in addition to those covered

Said Ohio decision is diametrically opposed to the decision of the majority in this case, but in absolute harmony with the views expressed herein.

Said relators contended that ten hours was a reasonable and customary day for such work, wherefore additional pay for the other

Upon the point involved, the language of four hours was not inhibited. But the court

the Ohio Constitution and of the Texas Constitution is practically identical. Yet that court directly, clearly, emphatically, and unanimously held that such additional allowance to the relators was "extra compensation," and that, as a corollary, it was within the constitutional inhibition, because it was in addition to that fixed by law at the time the services were rendered.

Effort may be made to distinguish the two cases in principle, under the facts, in that, in our case, under said R. S. art. 3852, the commissioners' court had power to allow to the county judge additional compensation; but such effort must fail, because that power was not exercised until after the services had been rendered. It was then too late to exercise it, because the Constitution forbade it, then. So it was in said Ohio case; the authority of the Legislature to increase the compensation of said officers prior to rendition of the services in question was unquestionable, as was the authority of the commissioners' court in this Texas case. After service rendered, neither longer had authority to make such grant or allowance, because it was "extra compensation," the granting of which, at that juncture, was expressly

"The Legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office."

declared:

"The history of legislative bodies is to the effect that no regular hours of service are rendered either by members of the Legislature themselves or by their servants. They may sit two, four, six, or twelve hours a day, or all night, if they see fit, and it frequently occurs that during a great many days of the session no service is rendered either by the members or by the employés"

-and that the duty of said relators was to perform the services whenever they were required. The court further said:

"He entered into a contract with the state. and extra compensation has now been voted him for services which had already been rendered. There is no doubt of the power of the Legislature to have, at any time they determined that the officer was not sufficiently paid, increased his per diem; but that is a different proposition from the one involved here, where the compensation was added after the services had been performed."

So, as to those relators, the writ was denied.

Porter v. Fletcher, 153 App. Div. 472, 138 N. Y. Supp. 559, a late case, arose under section 28 of article 3 of the Constitution of New York, which reads thus:

"The Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor."

In construing that section, the Supreme Court of that state said:

"The evil sought to be remedied by this constitutional provision seems to be an increase of

It will be observed that the quoted language, upon which that opinion rests, does not expressly designate a time after which such extra grant shall not be made; yet it was there construed to mean, as to public officer, just what our Constitution expressly declares, viz.: That grant of extra compensation cannot be made after service rendered. Under both Constitutions the time element is the important feature of the inhibition. Matter of Mahon v. Board of Education, 171 N. Y. 263, 63 N. E. 1107, 89 Am. St. Rep. 810, is cited by the Supreme Court of New York in support of its decision in Porter v. Fletcher, and from it the following excerpt is taken:

"The claim of the relator falls in direct terms within the restrictions of section 28 of article 3. The relator was a public servant or employé of the city, and the Legislature has sought to grant her extra compensation. The argument of her counsel only emphasizes the conflict between the statute and the Constitution. He contends: The act of 1900 is as though the state_said to the worn-out and decrepit teachers, You have not been paid enough for your services, and we will now pay you what you deserve.' It is exactly such action on the part of the Legislature that the constitutional amendment was intended to prevent. Extra compensation is compensation over and above that fixed by contract or by law when the services were rendered."

In view of the fact that in the case at bar the salary of the county judge for ex officio services had not been "fixed by law"-by either the Legislature or the commissioners' court-when the services in question were rendered, can it be doubted that our case comes within the rule of construction thus announced by the present Chief Justice of the court of last resort in New York?

None of the authorities cited in the brief of appellees contravenes or questions the views and conclusions herein expressed; probably none which does so can be found. In so far as they are applicable, nearly all of those authorities support those views and conclusions, and some of them are cited herein.

Concerning certain features of the foregoing majority opinion, the following is respectfully submitted:

(a) It holds that "extra compensation," as used in said section 53, means "any sum in addition to the contract price or salary," and exists "because it is outside the contract." That is all sound and true in cases of contract; but what if, as in the case at bar, there is no contract price or salary to form such base of calculation? As applied to the county judge, compensation of any kind is "extra" if "outside of," and in addition to, his statutory compensation.

thing had been paid, or was owing—a sum had been fixed by the Legislature to wit: His statutory fees of office, as to which the salary subsequently allowed him was "extra compensation." The very mental conception of "extra compensation" presumes antecedent "compensation," which, in this instance, was fixed by statute, and not by contract.

(d) Referring to the grant in question, it asks, "No time being specified for making it, why should it be held invalid because made after service rendered?" The sufficient answer is, a time is specified; our Constitution plainly declares such grant shall not be made "after service rendered."

(c) It declares "The county judge was not upon salary, and no allowance made for other service included this; therefore the sum fixed by the commissioners' court could not be extra."

(b) It says, "It is manifest that the allowance in this instance was not in addition to a previous allowance." True, but it was in addition to his statutory fees.

(c) It says, "Nothing having been paid, or sum fixed, it could not be extra allowance

The first suggestion therein appears to be that a "salary" may constitute "compensation" for official services, but that statutory fees for the same services, although aggregating, possibly, as much as a liberal salary, may not. That suggestion seems to lack merit, because, although the county judge's statutory compensation reaches him as "fees," and not as "salary," it is all "compensation," and his obligation to perform all duties imposed upon him by law, including ex officio duties, exists just the same. A change in the policy and laws of the state from the fee system to a salary basis could not affect the question. Our Constitution employs the general term "compensation"-not "salary"in fixing the base, or antecedent, to which "extra compensation" necessarily relates or refers.

The second suggestion in this quoted language seems to be that, inasmuch as the regular fees which are allowed the county judge by statute are specifically for services other than ex officio, such fees do not constitute "compensation" for ex officio services; and therefore such compensation as may be granted for ex officio services is merely compensation," and not "extra compensation," in relation to that particular service, and, as a final consequence, the grant, or allowance, of salary specifically for ex officio services is not a grant of "extra compensation" within the meaning of said constitutional provisions.

The major premise in the logic of the majority opinion seems to be that "extra compensation" necessarily means compensation in addition to that formerly provided specifically for the particular service, or workeven ex officio services-and that idea apparently forms the backbone of said majority opinion.

The foregoing analysis and study of said constitutional provisions was undertaken and is here respectfully presented for the primary purpose of reaching the very right of the matter involved, but with the purpose and hope of locating and pointing out the

premise. The idea which vitalizes it appears to have resulted from drawing a very fine bead on said constitutional provisions-entirely too fine, it seems to me, to form a proper rule for construing an instrument of that fundamental character which was written in the ordinary language of the plain people with the expectation that it would be construed accordingly, and with a view to the effective accomplishment of practical results. It was at back allowances, rather than double or increased allowances, that the framers of our Constitution and the people struck; and in the case at bar the grant of salary for antecedent services, while made, doubtless, in the utmost good faith, was nevertheless in the very teeth of said constitutional inhibition.

All authority of the commissioners' court for making any grant of compensation, or salary, to a county judge rests upon some delegation, by the Legislature, of power to do so. No statute, other than said article 3852, attempts to authorize that court to grant compensation, fee, or allowance, to a county judge for ex officio services. Consequently the rights of the county judge, in this case, are measured by that statute.

If said article 3852 be construed as not authorizing said grant, or allowance, of salary to said county judge for antecedent ex officio services, said grant, upon which alone he relies in this case, was void and inoperative as to such antecedent services, although valid as to subsequent services.

On the other hand, if said article 3852 be construed as authorizing the commissioners' court to make, after rendition of ex officio services, a grant of compensation, or salary, to said county judge therefor, said statute is itself thereby rendered unconstitutional and void, and, as a corollary, said grant thereunder was wholly void. So in no event should said grant or allowance of salary, of date September 14, 1906, be upheld as to such antecedent services; although, as to such future services, it was valid.

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To summarize:

It seems clear that the natural and obvious purpose and necessary effect of the abovequoted provisions of the Constitution of Texas was to require that the amount of all extra compensation, fees, and allowances moving to any member of any of said four classes shall be determined, and the grant thereof made, in advance of the rendition of public service, or in advance of the performance of contract work, and, as a corollary, to inhibit the commissioners' court from mak-plied. ing to the county judge any allowance for services previously rendered.

2. CARRIERS (§ 105*)-DELAY IN TRANSPORTA

TION-DAMAGES.

Where the delay of a carrier in delivering a car occurred while transported to the consignee, who was to load it with oil and return it to the consignor, but the carrier was not informed that it was to be loaded with oil, the value of the ordinary and usual use of the car during the delay was the measure of damages.

[Ed. Note.-For other cases, see Carriers. Cent. Dig. §§ 451-458; Dec. Dig. § 105.*] 3. CARRIERS (§ 105*)-DELAY IN TRANSPORTATION-DAMAGES.

Where a carrier's delay occurred after a car was loaded with oil and returned to the carrier notified of the purpose of transporting the oil, the carrier was liable for such damages as would ordinarily result from a failure to deliver the oil for the use to which it was to be ap

[Ed. Note.-For other cases. see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.*]

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

Action by the Houston Packing Company against the San Antonio & Aransas Pass Railway Company and another. There was a judgment for plaintiff, and defendants appealed to the Court of Civil Appeals, and it certified the cause to the Supreme Court. Questions not answered.

Baker, Botts, Parker & Garwood, of Houston, E. B. Perkins, of Dallas, and R. J. Boyle, of San Antonio, for appellants. Hutcheson & Hutcheson, of Houston, for appellee.

BROWN, C. J. The Court of Civil Appeals of the Eighth District certified to this court the following statement and questions: "Action by appellee against San Antonio & Aransas Pass Railway Company and St. Louis & Southwestern Railway Company of Texas, for recovery of damages alleged to have been sustained by reason of delay in transportation of an oil car delivered in Houston to the firstnamed railway company, to be by it and its codefendant transported to Frost, Tex., and there delivered to the Planters' Oil Company, loaded with crude cotton seed oil, and then returned to appellee in Houston.

"The cause was tried before a jury and was submitted upon special issues. The issues and answers thereto are as follows:

The subsequent order of ratification could not impart validity to an unconstitutional and void act.

"First. Did plaintiff's tank car, or tank cars of a similar nature, have a reasonably established rental value during the period from DeI think that Dallas county is entitled to cember 24, 1908, to March 2, 1909? Answer: recover in this action, and that an affirmative "Second. If you find from the preponderance reply should be made to the certified question.of the evidence that the car had no rental

No.

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