The Southwestern Reporter

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.

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 ex

tra allowance for services rendered.

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

"Extra compensation is such not merely for being greater or less than the contract, but properly because it is outside the contract.' Carpenter v. State, 39 Wis. 271." Words and Phrases, vol. 3, p. 2624.

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

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. No authority has been cited which sushave found none. tains the contention of the county, and we 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 comhonored Associate we consider to be a repensation, which failure on the part of our liable support to our conclusion.

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

"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; 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

The

"The Legislature shall provide by law for the compensation of all officers vided for in this Constitution. 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."

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sation, when it reaches the county judge, has not been made by the Legislature directly, as suggested by said section 44; but those two sections of said article 3 should be construed together, and, inasmuch as the 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 com

missioners' court acted in making the allowance or grant of additional, or extra, compensation in this instance, is not questioned.

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 That the ex officio services of the county emphasize the fact that whatever power or judge had been rendered by him prior to authority there is in the commissioners' court September 14, 1906, the date of the order of to make, to the county judge, any grant of the commissioners' court making the grant additional, or extra, compensation, or any or allowance in his favor, is admitted; in- allowance whatever of pay, for official servdeed, that fact is recited in said order. ices which have been theretofore imposed Said order evidently constituted a "grant" upon him by general law, exists, and must of "compensation," a "grant" of an "allow-be exercised, only by virtue of, and in harance" 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."

mony with the spirit, and not in defiance of the plain letter, of said section 53.

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 re

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 cer-lation to the time of the rendition by him of tified question should be answered negatively.

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.

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.

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, Each of said sections, independently of in the form of salary, covering those ex the other, peremptorily deprives the Legisofficio duties for the performance of which lature of all power whatever to itself grant the Legislature itself, by general law, had to any one belonging to any of those four not specifically provided compensation. classes such "extra compensation" after the

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

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 inhibited? Here, also, the answer is obvious: Compensation in addition to, or extra of, that which the law, as it existed when the service was rendered, provided for service which

Said section 53, as if to emphasize that fundamental purpose, repeats the general limitation upon legislative power which is set out in said section 44, and, as if to more certainly make that limitation or inhibition it required of him-compensation in addition pervade the whole field of extra compensation, or additional remuneration, for public service and public contract work within this state, adds to "extra compensation" the words "fee or allowance," although said section 53 apparently seeks to relax, somewhat, the rule as to contractors by adding to the words "contract entered into" the words "and performed in whole or in part." The effect to be given to said addition concerning contractors is a matter which is foreign to the present inquiry, and upon that point no question is raised, and no opinion is ex-instance which can possibly arise under said pressed.

In addition to dealing, as does said sec tion 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.

"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.

to, or extra of, that to which he became entitled upon performance of such service, by virtue of an existing statute constituting a direct grant by the Legislature, or by virtue of a previous order of the county or municipal authority, constituting a grant or allowance under said delegated authority of the Legislature to provide for the compensation of all members of any of said four classes. Here, again, the reasons for such inhibition are apparent.

In each of these instances, indeed in every

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.

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.

For illustration: Once let such contractor complete, and, if section 53 alone is to control on that point, let him but begin work In each of said sections 44 and 53, so far under his contract, or, indeed, if section 44 as this case goes, said time element, as to the alone is to control on that point, let him but grant of compensation, fee, or allowance, is enter into such contract, it thereupon be- the subject, and the only subject, of our Concomes too late for the Legislature or the stitution's zealous solicitude. Consequently, county or municipal government, as the case if such time element be treated as immatemay be, to grant or allow him extra compen- rial, the only purpose of said constitutional sation of any character, or in any amount, | limitations is thereby absolutely nullified. for work embraced by such contract. What Considered separately or together, the sort of compensation to the contractor is cardinal purpose of said sections 44 and 53, thus inhibited? The answer is obvious: in so far as this inquiry is concerned, was Compensation in addition to, or extra of, | dual in its nature; first, to stamp the emphatthat which the contract provided for work ic disapproval of the people of this state upwhich 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

on 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 the rendition of such public service in the

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.

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:

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 ex-lowed him by order of the commissioners' court." 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.

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."

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; supernumerary; as, extra pay or work. Something in addition to what is due, expected, or customary;

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an added charge or fee. Webster's New International Dictionary. "More than what is usual, or than what is due, appointed, or 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

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 and pay him the tuition from the "overs and unders," in addition to the $75 salary? But, if the law, as amended, should go further and authorize the board of trustees to allow such teacher, in addition to said salary of $75, extra compensation not exceeding the amount of tuition to be derived from the "overs and unders," provided same be allowed by said board before the beginning of the scholastic term, but not afterward, could it be reasonably denied that the purpose and effect of the amended statute was to permit the board to grant or allow to such teacher such extra compensation if it be done seasonably, but otherwise to forbid it?

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

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

Shelby County v. Gibson, 18 Tex. Civ. App. 121, 44 S. W. 302, decided by the San Antonio Court of Civil Appeals, in which this court denied a writ of error, involved circumstances which were held to establish the fact that the contractor, and not the county, was responsible for his having to tear down certain defective brickwork in the construction of the courthouse under contract. The allowance which the commissioners' court made him therefor, in excess of the contract price, was "extra compensation" within the meaning of, and was prohibited by, said section 53 of article 3 of our state Constitution. That was held void because it was "extra" of the 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:

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

A similar rule should be applied in deter

mining, in this case, what is "compensation,” how much, but when, such "extra compenas a preliminary step in ascertaining, not sation" 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.

to provide. Said salary of $75 per month, mentioned in said order of September 14, 1906, was 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 the base of calculation or estimate in such matters, was, beyond room for doubt, "ex-section 11 of article 3 of the Constitution of Edwards v. McLean, supra, arose under tra," and therefore such as said Constitution Pennsylvania, which provided: 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

"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

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