
    The City of Austin v. C. D. Johns.
    (Case No. 4979.)
    1. Attorney — City charter — City ordinances.— Under the amended charter of the city of Austin, passed February 15, 1878, the city council had power to allow the city attorney such fees as in their discretion they thought proper, in addition to §600 fixed as compensation for his services by the amended charter of November, 1875. It had also power to allow him commissions on all sums collected by him for the city, or which had been collected through his official instrumentality and paid into the city treasury.
    
      2. Same.— By city ordinance, the city attorney was allowed to receive “ten per cent, on all sums collected for the city.” Held, that the city attorney was entitled to ten per cent, (in addition to his fees for representing the city in civil or criminal cases) on all sums collected by him under any judgment procured by him for the city.
    Appeal from Travis. Tried below before the Hon. A. S. Walker.
    
      H. B. Barnhart, for appellant,
    cited: An act to incorporate the city of Austin, approved April 5, 1873, art. 6, sec. 33, p. 13, as printed and published by said city; also, section —, regulating compensation of officers,” p. 25; 51 Tex., 532, 770; Dillon, Mun. Corp., secs. 317, 327, 421, 447 (372), 448 and 449 (373); id., secs. 459 (383), 460 (384).
    
      Sheeks & Sneed, for appellee.
   West, Associate Justice.

Appellee instituted this suit against appellant to recover under article 103 of the- revised ordinances of the city of Austin $1,250.47, being ten per cent, of the fines collected in misdemeanor prosecutions in the mayor’s court of the city of Austin from the 9th of September, 1878, to the 16th of November, 1881, during which time plaintiff was city attorney.

September 26, 1883, appellant filed a general demurrer, general denial and special answer, in which it was alleged that under articles 100 and 101 of the revised ordinances, which were in force during appellee’s term of office, the city attorney was, in all cases of misdemeanors brought before the mayor where the party pleads guilty, entitled to a fee of $2, to be taxed in the bill of costs, and no more; and that in all such cases where the party pleaded not guilty, on conviction of the accused the city attorney was entitled to a fee of $5, to be taxed in the bill of costs, and no more, and that the appellee, as such officer, had received such fees in all the cases prosecuted by him in said court during his term of office.

A jury was waived, and the case submitted to the court, and there was judgment for plaintiff for $1,250.47 and costs.

Appellant excepted, and gave notice of appeal.

The only questions to be determined are, whether or not, under the charter of the appellant, and the amendments thereto, it had power to allow, by way of compensation to the appellee, as city attorney, for official duties and services performed by him under their order and direction, commissions on sums of money collected and paid into the city treasury in misdemeanor cases, in which he represented the city as such city attorney ? and if they have such, power, have they exercised it?

By the sixth article, clause 33, page 13 of the charter (which charter was granted to the city of Austin by an act of the legislature, on April 5, 1873, and which is declared to be a public act), on the subject of the compensation of city officials, it was provided that the council shall have power: “ To fix the compensation of the city officers not herein provided for, and to regulate the fees of all jurors,” etc.

This article, and this clause of this article, were subsequently, on the first Monday in November, 1875, amended in the mode provided by law, and, by this amendment, the charter on this subject then read as follows: “The officers of the city of Austin shall, after the adoption of these amendments, receive the following compensation and no other for their services: . . . the city attorney a salary of six hundred (600) dollars per annum, and such fees as shall be allowed by the city council.”

These were the terms of the charter of the city when the ordinance now under consideration was passed. The exact date of its passage was 15th February, 1878. It was subsequently re-enacted totidem verbis on 31st July, 1878.

So much of this ordinance, which is quite lengthy, as is necessary now to be considered in this connection, is as follows:

“ Art. 100. In all cases of misdemeanor brought before the mayor, when the party pleads guilty the city attorney shall be entitled to a fee of §2, to be taxed in the bill of costs.

“ Art. 101. In all cases of misdemeanor, when the party pleads not guilty, the city attorney shall prosecute the case on trial either before the mayor or a jury, and on conviction of the party accused the city attorney shall be paid a fee of $5, to be taxed in the bill of costs.”

“ Art. 103. The city attorney shall receive ten per cent, upon all sums of money collected for the city; and for all civil cases brought for or against the city, other than for the collection of money in the district court, he shall receive the sum of $25, and in the magistrate’s court the sum of $5 for his services. It shall further be the duty of the city attorney to draw up all ordinances in legal form at the request of the mayor or any committee appointed by the council to have an ordinance drawn for any purpose whatever, and also to draw up all deeds or articles of agreement to which the city may be a party, free of charge to the city.”

It is plain that under the terms of the amended charter the city council has express authority to allow the city attorney, in addition to his annual salary of $600, therein provided, also such, fees as the council shall, in the exercise of their judgment and discretion, see fit to allow him.

No question is made but that they can, in addition to the salary and fees they have by ordinance already allowed him, also allow him still other fees for the many necessary and valuable services that he now performs without having any compensation for the same other than his annual salary.

It is argued, however, that this power, granted to the council, to allow him fees, does not authorize them to grant him commissions, on money collected. There is no force in this objection. The word “ Fees,” as defined by Burrill (see Burrill’s Law Diet., vol. 1, p. 474, verb. “ Fee.” See, also, Bouvier’s Diet., vol. 1, p. 577, verb. “ Fee ”), is said to be the reward or compensation or wages allowed by law to an officer for services performed by him in the discharge of his official duties. The latter author cites cases showing the difference between fees of an attorney, counselor and physician and the costs of a suit.

Webster, in his Unabridged Dictionary, p. 444, word “ Fee,” following the elementary law writers, also gives, in substance and quite fully, the same definition of this word.

Under this, the well-known and correct legal definition of the word “ fee,” as used in the charter, we have no doubt that the city council has authority to allow the appellee, as city attorney, by way of compensation and remuneration for his official services, commissions on all sums of money collected for the city where he has rendered professional services in that behalf, and through his official instrumentality such sums of money have been in fact collected and paid into the city treasury.

It is, however,, contended that, conceding this to be the fact, that the city council, having already provided, as we have seen from the above extracts from the ordinances of the city, for his fees in misdemeanor cases, they could not in addition, in that same class of cases, allow him also commissions on the sums collected for further attention to the collection of the fines imposed.

We think the appellant, under the charter as amended, had the power, in such criminal cases as its tribunals had jurisdiction to try and determine, to allow the city attorney fees for appearing in and prosecuting such suits, and also, in addition, if it saw fit to do so, allow him additional fees for representing the city and superintending the subsequent collection in money of the judgments so rendered in favor of the city.

The language is as follows: “ The city attorney shall receive ten per cent, upon all sums of money collected for the city.” Art. 103, (7). These terms are broad and unequivocal. Ho difference whatever is made by this ordinance between sums of money collected in civil suits and sums of money collected in criminal suits. As the city council has not seen fit to make a distinction in the ordinance between moneys collected in civil and in criminal cases, we certainly have no power to do so. Our duty is to construe the law; we cannot add to it or take from it. We administer it as we find it.

[Opinion delivered June 28, 1884.]

All the authorities cited by both parties have been examined; in addition, we have ourselves referred to the following cases: State v. Horrell, 53 Tex., 427; Spencer v. Galveston County, 56 Tex., 384; State v. Moore, 57 Tex., 307; Looscan v. County of Harris, 58 Tex., 511. They, however, throw very little light on the question now under consideration.

Our opinion is that the district court was correct, under the facts and law of this particular case, in the conclusions arrived at, and the judgment is accordingly affirmed.

Affirmed.

SUPREME COURT OF TEXAS  