
    NICHOLS et al. v. GALVESTON COUNTY.
    (No. 2753.)
    (Supreme Court of Texas.
    Feb. 23, 1921.)
    1. Counties &wkey;>74 (I) — Amounts paid assessor for assessing drainage and school taxes held “fees” and not compensation on “ex officio services”.
    Amounts paid county assessor for assessing taxes, for drainage and school districts under Acts 82d Leg. (1911) c. 118, § 32 (Vernon's Sayles’ Ann. Civ. St. 1914, art. 2604), and Rev. St. 1911, art. 2862, held “fees,” within articles 3881, 3883, 3889, fixing the maximum of “fees,” and not compensation for “ex officio services,” within article 3893, mating such maximum fee statutes inapplicable to compensation for ex officio services.
    [Ed. Note. — For other definitions, see Words and Phrases, Second 'Series, Ex Officio; First and Second Series, Fees.]
    2. Counties <&wkey;>98(I) — County assessor’s surety liable for assessor’s failure to account for fees received in excess of maximum.
    Where the county assessor did not account for the proportion of the fees received to which the county was entitled, under Rev. St. 1911, arts. 3881, 3883, prescribing the maximum amount of foes that may be retained by a county assessor, the county could bring an action on the assessor’s bond; the duty of accounting for the assessor’s fees being within the condition of the bond.
    Certified Question from Court of Civil Appeals of First Supreme Judicial District.
    Suit by Galveston County against Fred Mc-C. Nichols and others. Judgment for plaintiff, and defendants appealed to the Court of Civil Appeals. Questions certified to the Supreme Court.
    Questions answered.
    Stewarts, of Galveston, J. E. Quaid, of El-Paso, and Jas. B. & Chas. J. Stubbs, of Galveston for appellants.
    Chas. H. Theobald, Co. Atty., of Galveston, Marion J. Levy, Asst. Co. Atty., of Dallas, E. A. Wilson, of Brownwood, and Walter E. Cranford, Asst. Co. Atty., of Galveston, for appellee.
   PIERSON, J.

Questions certified from the Court of Civil Appeals of the First Supreme Judicial District of Texas, in an appeal from the district court of Galveston county.

The certificate of the honorable .Court of Civil Appeals for the First District presents, in substance, the following facts:

The suit was brought by Galveston county against Fred McC. Nichols and the sureties on his official bond in the district court of Galveston county, to recover of said Nichols the sum of $2,101.91, less one-fourth, being $1,576.45.

Fred McC. Nichols was the duly elected and qualified tax assessor for the county of Galveston during the year ending December 1, 1912. As. such assessor, as required by law, he assessed taxes for Galveston county drainage district No. 2 for the years 1911 and 1912 for Galveston county drainage district No. 1 for 1911, and also for Galveston county school districts for 1912. For said services he was paid by the county of Galveston during 1912 amounts aggregating $2,101.91. For assessing the taxes for the Galveston county drainage districts, he received compensation as evidenced by drainage 'district vouchers; and for assessing the taxes in Galveston county school districts a warrant upon the general fund of Galveston county. During the year 1912 he received fees in excess of the $2,500 maximum allowed him by law, and reported and accounted to plaintiff for three-fourths of all the excess fees, except the amounts named herein, which he held and claimed as ex officio salary or compensation.

The first question certified by the Court of Civil Appeals is:

“Were the amounts paid Nichols for assessing the taxes for drainage and school districts, under the statutes relating to such districts, compensation for ex officio services in the purview of article 3893, Revised Statutes of 1911, and therefore' not subject to the general provisions of the statute known as the ‘fee bill,’ which requires county assessors to account to the county for three-fourths of all fees received by them in excess of $2,500?”

The second question is:

“If the first question is answered in the negative, we ask: Is the county barred of recovery of the amounts sued for against the defendant sureties upon the ground that said amounts were voluntary payments to Nichols?”

We answer the first question, “No.”

Article 3881, Revised Civil Statutes of 1911, provides:

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

Then article 3883, which would include Galveston county, fixes the compensation for “assessors of taxes, an amount not exceeding twenty-five hundred dollars per annum; and in addition thereto one-fourth of the excess of the fees collected by the officers, respectively.”

Article 3SS9 provides that after the officer has received his maximum and one-fourth of the excess, after paying for the services .of deputies, assistants, etc., the remainder shall be paid to the county treasurer.

Article 3893, which the appellant Nichols invokes to support his contention, as set out in the first certified question, reads as follows:

“It is not intended by this chapter that the commissioners’ court shall be debarred from allowing compensation for ex officio services to county officials not to be included in estimating the maximum provided for in this- chapter, when, in their judgment, such compensation is necessary; provided, such compensation for ex officio services shall not exceed the amounts now allowed under the law for ex officio services; provided, further, the fees allowed by law to district and county clerks, county attorneys and tax collectors in suits to collect taxes shall be in addition to the maximum salaries fixed by this chapter.”

Section 32, chapter 118, of the General Laws of the Thirty-Second Legislature (Ver-mon’s Sayles’ Ann. Civ. St. 1914, art. 2604), which authorizes the establishment of drainage districts, reads as follows:

“The county commissioners’ court (shall) provide all necessary additional books for the uses of the assessor and collector of taxes and the county clerk of such drainage district, and charge the cost of same to the said drainage district. It shall be the duty of the county tax assessor, when ordered to do so by the county commissioners’ court, to assess all property within such drainage districts, and list the same for taxation in the books or rolls furnished him by said commissioners’ court for that purpose, and return said books or rolls at the same time when he returns the other books or rolls of the state and county taxes for correction and approval; and if the said commissioners’ court shall find said books or rolls correct, they shall approve the same and order the county clerk to issue a warrant against the county treasurer in favor of said tax assessor to be paid from the funds of said drainage district. The tax assessor shall receive for said services such compensation as the said county commissioners’ court shall deem proper to compensate him for the amount of work done. Should the tax assessor fail or refuse to comply with the order of the commissioners’ court requiring him to assess and list for taxation all the property in such drainage districts as herein provided, he shall be suspended from the further discharge of his duties by the commissioners’ court of his county, and he shall be removed from office in the mode prescribed by the law for the removal of any county officers.”

Article 2862, Revised Statutes 1911, relating to assessing taxes for school districts, reads as follows:

“When a majority of the board of trustees of an independent school district prefer to have the taxes of their district assessed and collected by the county assessor and collector, same shall be assessed and collected by said county officers, and turned over to the treasurer of the independent school district for which such taxes have been collected; provided, that the property of such districts haying their taxes assessed and collected by the county assessor and collector, shall not be assessed at 9, greater value than that assessed for,county and state purposes; provided, further’, that when the county assessor and county collector are required to assess and collect the taxes of independent school districts, they shall, respectively, receive one per cent, for assessing and collecting same.”

It will be seen from the last two articles of the statutes quoted that it is the duty of the tax assessor, not only to assess state and county taxes, but also to assess taxes for drainage and school districts, and he may receive therefor the compensation provided therein.

Article 3881, providing that “Hereafter the maximum amount of fees of all kinds that may be retained by any officer mentioned in this section (article) as compensation for services shall be as follows,” was meant for a limitation and positive restriction upon the maximum amount of fees an officer may receive; and all compensation, commissions, and fees provided by the Legislature for assessing taxes are to be considered “fees of all kinds” and to be accounted for in determining the salary the tax assessor is to receive, unless specified otherwise by the Legislature, or unless specially provided and contracted for by the commissioners’ court under authority of law. 1

In the case of Ellis County v. Thompson, 95 Tex. 26, 66 S. W. 49, Judge Brown, in discussing this article as it relates to county clerks, used the following language:

“Article 2495c, Sayles’ Civ. St. [now article 3881, R. S. 1911] reads thus: .‘The maximum amount of fees of all kinds that may be retained by any officer mentioned in this article as compensation for services shall be as follows.’ The phrase ‘fees of all kinds’ embraces every kind of compensation allowed by law to a clerk - of the county court, unless excepted by some provision of the statute.”

He also mentions certain exceptions stated in the statutes, and concludes ’ by saying that—

“The exceptions are so definite that by implication all fees not mentioned in the exceptions are excluded therefrom, and thereby included within the requirement of the act.”

In the case of Ward v. Harris County (Civ. App.) 209 S. W. 793, in which case a writ of error was. denied by this court, Chief Justice Pleasants says:

“We cannot agree with appellants in theii contention that the commissions received by the county judge for the sale of Harris county drainage district bonds are not included in the term “fees of all kinds,’ as that term is used in article 3881, Vernon’s Sayles’ Civil- Statutes, fixing the maximum compensation allowed county officers. On the contrary, we think the decisions of our Supreme Court and Courts of Civil Appeals settle this question adversely to appellants’ contention. The general purpose of the maximum fee bill was to limit the compensation received by the officers named therein for the performance of their official duties, and the term ‘fees of all kinds,’ as used in that act, has been expressly held to include commissions allowed by law for the performance of official duty, the commissions so allowed not being excepted from the maximum fee bill by any provision of the statute.”

After the statutes were enacted providing for drainage districts and independent school districts, and that when ordered to do so by the properly constituted authority the county assessor of taxes shall assess these taxes, the assessment of such taxes by him became the usual and general duties of his office; and the performance of these duties by him is made mandatory. 4

Section 32, chapter 118, of the general Laws of the Thirty-Second Legislature, provides that it shall be the duty of the county tax assessor, when ordered by the commissioners’ court, to assess property within drainage districts, to list same on the rolls, and return the rolls at the same time he returns other books and rolls of the state and county taxes, and if found correct the county commissioners shall approve same and order the county clerk to issue warrant against the county treasurer in favor of said tax assessor, to be paid from the funds of said drainage district; that said tax assessor shall receive such compensation as the said county commissioners’ court shall deem proper to compensate him for the amount of work done. It then provides that should the assessor fail or refuse to comply with the order of the commissioners’ court, he shall be suspended by the commissioners’ court and shall be removed from office.

The statute makes it the duty of the assessor to assess the drainage district taxes and to return the rolls. It makes it the duty of the commissioners’ court, upon approving the rolls, to order the county clerk to issue warrant against the county treasurer, to be charged against the funds of the drainage district. It provides for removal from office of the tax assessor, should he fail or refuse to perform these duties.

These duties are fixed by statute. Article 2862, relating to assessment of taxes for independent school districts, under the conditions mentioned therein, likewise requires the tax assessor to assess said taxes, and provides that he receive 1 per cent, for assessing same.

The purpose of article 3893 was to warrant an additional compensation for ex officio services to county officials, when in the judgment of the commissioners’ court such additional compensation is necessary. It does not appear that the additional compensation to the assessor was necessary, or that it was allowed to said officer by the commissioners’ court as ex officio compensation! True, it approved the assessor’s rolls, ordered the county clerk to draw a warrant in favor of the assessor for the fees provided by the statute, in compliance with the statute requiring it to do so.

Because article 3893 authorizes the commissioners’ court to grant ex officio compensation when in its judgment it is necessary, it dees not follow that fees collected by an officer in the due course of his duties, under-the orders of the commissioners’ court as directed by the statute, become ex officio.

Second Question. Having answered the first question in the negative, it becomes necessary for us to answer the second question.

The second question is:

“Is the county barred of recovery of the amounts sued for against the defendant sureties upon the ground that said amounts were voluntary payments to Nichols?”

We answer the second question, “No,” also. Our answer to the first question in effect answers the second.

If the fees or compensation for assessing the drainage districts and the independent school district taxes are, under the law, “fees of all kinds,” then it became the duty of the assessor, not only to assess the taxes, but also to make the proper accounting for them. Therefore it would be a part of his duties covered and protected by his bond, and his bondsmen would be liable for a failure on his part to properly account for them. 
      (ErsjFor other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes
     