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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 authority to grant the extra compensation in question was not exercised before the service was rendered-a failure which was fatal in the cited case, and which, for the same reason, is fatal here.

"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 the 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 attending at all elections held in his ward, and making certain returns to the court of quarter sessions. Act July 2, 1839 (P. L. 519), and Act May 13, 1887 (P. L. 108). He took the office subject to these burdens. The compensation which the officer was entitled to receive for the The Pennsylvania decision could not have discharge of his official duties was regulated by been based upon the theory that the services the act of May 23, 1893 (P. L. 117). Fenner V. Luzerne County, 167 Pa. 632 [31 Atl. 862]. of the constable which formed the basis of That statute provided compensation for the dis- his claim were "without previous authority charge of his official duties by the allowance of of law," for, as we have seen, the court, in fees for many of such services; but no special rendering that decision, expressly declared compensation was allowed for making returns to the court of quarter sessions or being pres- that said services were rendered in performent at elections. This was the state of the law ance of "duties which he was required by when the services for which the appellant now law to perform," and that he knew that fact seeks to recover were performed. The appellant performed all the duties of his office, receiv-when he accepted his office, and that he ing such compensation as was at that time au- took it "subject to these burdens." thorized 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 payment 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 be comes 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.

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:

"That the officers, noncommissioned officers, musicians, and privates engaged in the mili tary service of the United States in the war with Mexico, and who served out the time of their engagement, or have been orably discharged,

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hon

shall be entitled

to receive three months' extra pay," etc.

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 serving at sea when he was ordered away, he months longer. It follows that, as North was 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:

"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 performed or agreed to perform services in which 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 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. 2, of the Constitution of the state of Washington, as follows:

"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."

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.

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

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

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, inproposition from the one involved here, where creased his per diem; but that is a different 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."

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

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

It will be observed that the quoted lan- thing had been paid, or was owing-a sum guage, upon which that opinion rests, does had been fixed by the Legislature to wit: not expressly designate a time after which His statutory fees of office, as to which the such extra grant shall not be made; yet it salary subsequently allowed him was "extra was there construed to mean, as to public compensation." The very mental conception officer, just what our Constitution expressly of "extra compensation" presumes antecedeclares, viz.: That grant of extra compen-dent "compensation," which, in this instance, sation cannot be made after service ren- was fixed by statute, and not by contract. dered. 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.

(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

(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."

not.

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 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 work— even 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.

To summarize:

SAN ANTONIO & A. P. RY. CO. et al. v. HOUSTON PACKING CO. (No. 2349.) (Supreme Court of Texas. May 28, 1914.) 1. APPEAL AND ERROR (§ 861*)-QUESTIONS REVIEWABLE CERTIFIED QUESTIONS FROM COURT OF CIVIL APPEALS.

The Supreme Court, on certified questions from the Court of Civil Appeals, will confine its answers to issues of law presented in the certificate, and will not answer abstract questions of law.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3447, 3448; Dec. Dig. § 861.*]

TION-DAMAGES.

2. CARRIERS (§ 105*)-DELAY IN TRANSPORTA-
Where the delay of a carrier in delivering
a car occurred while transported to the con-
signee, who was to load it with oil and return
it to the consignor, but the carrier was not in-
formed 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 TRANSPORTA-
TION-DAMAGES.

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.

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.

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

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:

No.

"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

there was no fixed rental value of the tank cars
throughout the year. That, if plaintiff had
had the car during the time it was delayed, it
would have used same for hauling cotton seed
oil. There was a steady demand for tank cars
during that season. The market on oil has
something to do with the value of tank cars,
and their value is to a great extent determined
by the buyer because of their availability to
move oil during the time the seller wants it
moved. That at least $10 per day was the
reasonable value of the use of the tank for the
purpose of hauling and transporting cotton seed
oil for sale or otherwise, from December 21st
to March 2d. That plaintiff was unable to get
other tank cars to haul oil while out of the use
of the one in question. That, some days after
appellants had received the car, notice was
given them of the importance of prompt return
of the car and of the particular use for which
it was intended, and that it had been sent to
Frost to be loaded with cotton seed oil.
"The testimony above which is italicized was
all objected to upon the ground that it tended
to show a special use, special damage, and spe-
cial matters of which defendants had no notice
at the time of the execution of the bill of lad-
ing and delivery of the car and was therefore
irrelevant, immaterial, and pertained to no is-
sue.

"First question: Should the measure of plaintiff's damage, under the above statement of what the testimony shows, be determined by the rules of law on that subject, applicable to breaches of contract, or would the fact that defendants were common carriers and as such owed a public duty to carry with reasonable dispatch, irrespective of the contract, make applicable the measure of damages for delay, as in cases of tort? For statement of distinction of rules, see Sutherland on Damages (3d Ed.) par. 45.

value, and have answered question No. 1 in the negative, then, in that event, you will answer the following question: What was the reasonable value of the use of the car during the period when same was detained, to persons generally in the business of hauling and transporting cotton seed oil? Answer: $514.73. "The testimony shows: That empty oil tank car No. 109 was delivered to San Antonio & Aransas Pass Railway Company December 21, 1908, under bill of lading which provided that the tank should be carried to Frost, Tex., and there loaded by the Planters' Oil Company and returned. That the routing_was over the San Antonio & Aransas Pass Railway to Waco, over St. Louis & Southwestern Railway Company of Texas to Frost, to be returned to Waco by that company and from thence to Houston by the San Antonio & Aransas Pass Railway Company. The billing did not show what it was to be loaded with. That car No. 109 was purchased and owned by Houston Packing Company to be used in transporting cotton seed oil. That the car was not returned to plaintiff until the 24th day of February, 1909. That a reasonable time to take the car to Frost and return would be ten days. That the car was diverted at Waco by the St. Louis & Southwestern Company. (In this connection, it was agreed that, as between these carriers, the liability, if any, was against the St. Louis & Southwestern Railway Company.) That the Houston Packing Company used fuel oil to run its plant, and sometimes had its cars come in loaded therewith. That it owned nine oil tank cars, and, during the period of the detention of car 109, they used their cars and other cars exclusively for transporting cotton seed oil. The testimony does not disclose how many oil tank cars were handled by defendants for the Houston Packing Company prior to the time of the diversion of car 109. That the Planters' Oil Mill Company, the consignee, handled cotton seed products, crude cotton seed oil. Crude oil is just as it comes from the seed. The Planters' Oil Mill Company does not deal in fuel or mineral oils. That the crude oil is purchased of the mills in the interior, and the refining is done at such concerns as the Industrial Cotton Oil Company, Merchants' & Planters'. That the general purpose of the cars is for trans- "Fourth question: Does this case come withporting the crude oil from the oil mills that in the rule announced by the Supreme Court in do not operate refineries to the refineries and Bourland v. Railway Co., 99 Tex. 407, 90 S. refining the crude oil into the finished product. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. That plaintiff put on the line of tank cars for St. Rep. 647, so as to render defendants liable the express purpose of handling cotton seed oil. for the value of the special use of the car from It was unable to get cars with any degree of the time notice was given them of the imcertainty from the railroad company when need-portance of prompt return of the car and of ed. That, during the time this car was detain- the particular use for which it was intended, ed, plaintiff bought cotton seed oil from mills and that it had been sent to Frost to be loaded in Cuero, Yoakum, Giddings-all over South with cotton seed oil?" Texas. That Cuero is on the San Antonio & Aransas Pass Railway. That car 109 on December 11th went to Waxahachie for oil, on December 18th it arrived from Waxahachie, and on December 21, 1908, left for Frost, Tex. That customarily the railroads on receiving billing for one of these cars come to plaintiff's yards and get the car. That prior to December 18th plaintiff purchased cotton seed oil on the line of the San Antonio & Aransas Pass Railway, at Beeville, San Antonio, Cuero. That it was during the first days of January, 1909, that the defendants learned that car 109 had been diverted. That defendants then knew that plaintiff was demanding the return of the car at once. That an agent of the St. Louis & Southwestern came and talked to plaintiff about the detention of the car about this time. That a demand was also made of the San Antonio & Aransas Pass Railway Company. That at one season plaintiff required the use of the car more than at another season, to wit, during the busy season, which opens with the cotton sea

son

in August and September and closes in March. That the period that this car was out

"Second question: From the testimony above stated, would knowledge be imputed to the defendants so as to render them liable for the value of its use for that purpose, rather than its general use for oil transportation?

"Third question: Was the italicized portion of the testimony admissible as against the objections urged to it?

[1] Counsel for appellee in their argument discuss facts not disclosed and issues of law not presented in the certificate, to which we will confine our answers.

The rules for certifying questions to this court have not been complied with, and the certificate should not have been filed. However, we will make the best answer that we may be able upon the facts stated.

[2, 3] We understand that the Houston Oil Company delivered the car to the San Antonio & Aransas Pass Railway Company at Houston on December 21, 1908, to be delivered by that railroad company to the St. Louis & Southwestern Railway Company at Waco, Tex., and to be by the latter company carried to Frost, and delivered to the Planters' Oil Company to be loaded with crude cotton seed oil and by said railroad returned to

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