Opinion
No. 4300.
March 2, 1933. Rehearing Denied March 16, 1933.
Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.
Action by R. E. Floyd against the City of Texarkana. Judgment for plaintiff, and defendant appeals.
Affirmed.
This is an appeal by the city of Texarkana from a judgment granting the appellee's demand for payment of monthly salary due for services performed as ex officio clerk of the corporation court of the city. The salary account in suit was refused to be paid by the fiscal officers of the city as being a sum in excess of a salary computed at the rate of $1,200 per annum allowable to the city secretary. In a trial before a court without a jury, the appellee was awarded the sum of $750, with interest thereon, as unpaid salary for seven and one-half months' services performed as ex officio clerk of the corporation court of the city. There is no dispute about the facts of the case, and the findings of fact made by the trial court are in all things approved.
The appellee, R. E. Floyd, was duly elected secretary of the city of Texarkana, Tex., at the regular general election on April 22, 1930, and duly qualified and acted as such. The city of Texarkana was chartered by an Act of the Legislature in 1907 (Loc. Sp. Laws 1907, c. 104). Section 47 provides that: "The city council shall, on or before the first day of January next preceding elections for officers * * * fix and determine the salaries of all such officers who are to be elected at such election where such salaries are not fixed by the terms of this charter; and shall at the same time fix and determine all salaries for appointees and employees who hold by appointment, and whose office is to be filled by reappointment during the ensuing year next thereafter."
Section 48 provides: "The salary so fixed and determined by said council for such officers, whether elective or appointive, shall not be increased or diminished during the term for which such officers are elected or appointed."
By the terms of the city charter a "city secretary" is placed in a group prefaced by a particular heading of "Officers," and he is required to be elected by vote of the people as "city secretary." His duties are defined, as material to set out, by section 121, to be: "The city secretary shall attend upon the meeting of the city council and keep accurate minutes of the proceedings thereof in a book or books provided for that purpose. * * * He shall be the clerk of the corporation court of the city of Texarkana when required by the council, and shall do and perform all such other duties as shall be required of him by the city council and the laws, ordinances, regulations and rules of said city."
By the following section 122 the powers of the "said city secretary" are set out. And by section 125 his compensation is provided for, namely: "Said city secretary shall receive a salary to be fixed by the city council, not to exceed the sum of twelve hundred dollars per annum, payable in monthly installments."
By further provision of the charter under the heading of "Corporation Court" there is established and created a court styled "The `Corporation Court of the City of Texarkana, Texas.'" Section 131. Provision is made for a clerk for the court, section 133 reading: "The city secretary of said city shall be ex officio clerk of the corporation of said city, and shall hold such office for two years from the date of his appointment and qualification as such City Secretary. The Council shall have power to require the Recorder (sitting as a magistrate) to perform the duties of said Clerk."
The duties of the clerk are enumerated in section 135, which provides: "It shall be the duty of the clerk to keep a minute record of the proceedings of the said court, to issue all process and generally to do and perform all the duties of the clerk of the court as prescribed by law for the clerk of the county court, as far as same are applicable, and said clerk shall receive such salary as shall be fixed by the city council."
It was proven that the city council by timely ordinance fixed the salary of the "city secretary" at $100 per month during the year 1930, and ending April, 1931, and a like salary for the fiscal year beginning April, 1931, and ending in April, 1932. It was further proven that the city council, by ordinance duly passed in the year 1928, provided as follows:
"Section 1. The City Secretary of the City of Texarkana, Texas, be and is hereby ordered to do and perform the duties of the Clerk of the Corporation Court of the City of Texarkana, Texas.
"Section 2. Said City Secretary, as Ex-Officio Clerk of the Corporation Court of the City of Texarkana, Texas, shall receive the sum of $100.00 per month for performing said services; which said salary is hereby fixed by the City Council for said services."
This ordinance is now, and has at all times since its passage remained, in full force and effect, and has not been repealed. The charter of the city of Texarkana does not provide, nor does any ordinance passed by the city council, that the compensation to the city secretary for ex officio services as clerk of the corporation court shall not increase the compensation of the city secretary beyond the maximum salary allowed to be received by him as city secretary.
It appears that on September 8, 1931, at a regular meeting of the city council, a motion was made and carried, reading: "That the bills as read be approved with the exception of the $100.00 per month allowed to the City Secretary as Clerk of the Corporation Court, and that thereafter the City Recorder be required to perform the duties of the Clerk of the Corporation Court." After the passage of that motion each monthly voucher for the salary of the clerk of the corporation court was refused to be signed and approved by the required fiscal officers of the city. The amount of the salary due the appellee for his service as clerk of the corporation court of the city at the time of the filing of this suit amounted to $750, which was for seven and one-half months' services. He actually performed the duties of ex officio clerk of the corporation court.
Travers Crumpton, of Texarkana, for appellant.
Wm. V. Brown, of Texarkana, for appellee.
The charter of the city of Texarkana expressly provides that the compensation of all elective and appointive offices must be fixed at a specified time and "shall not be increased or diminished during the term for which such officers are elected or appointed.". Section 48. The restrictive provision of the charter was intended to operate as a limitation upon the power of the city council as to the time the compensation may be altered as to a present incumbent. The motion passed by the city council on September 8, 1931, was an undertaking to alter or discontinue during the appellee's term of office ending in April, 1932, the salary allowable to him as ex officio clerk of the corporation court. The motion or resolution would therefore be ineffectual to in any way change the compensation, because violative of the charter provision as respects the time when such compensation may be altered.
The principal point of the appeal, as concisely and clearly stated in appellant's brief, is: "The amount of compensation allowed to the city secretary for the performance of the duties prescribed by the city charter being limited to a maximum of twelve hundred dollars per annum, any amount paid to and received by said city secretary in excess thereof is illegal and without warrant of law." The city attorney presents the point nicely and fairly and in the commendatory purpose of finally settling by judicial construction certain charter provisions. The precise facts are that the city council by ordinance duly enacted required the city secretary to act and perform the duties of clerk of the corporation court of the city. The city council by ordinance duly passed fixed and allowed compensation to the city secretary in the sum of $1,200, payable $100 per month. The city council also by ordinance duly passed fixed and allowed compensation to the "City Secretary as Ex-Officio Clerk of the Corporation Court of the City of Texarkana" for services as ex officio clerk in the sum of $100 per month. As to whether or not one person performing the duties of both positions may receive both salaries must depend upon the facts and upon whether authorized to do so by the charter. Under the terms of the charter the city secretary is required to perform the duties of the clerk of the corporation court for a year and to continue to perform the duties of that position in the event the city council deems it necessary and authorizes it. The duties thereof are performed for part of the time by the "recorder" or by the "city secretary" as determined by the city council. In respect to the pay the charter of the city, authorized by the Legislature, has conferred upon the city council the power to fix a salary for the purpose of compensating for the services rendered as city secretary and as ex officio clerk of the corporation court. As "said city secretary" the incumbent "shall receive a salary to be fixed by the city council, not to exceed the sum of twelve hundred dollars per annum, payable in monthly installments." And as further expressly provided, "said clerk," meaning ex officio clerk, "shall receive such salary as shall be fixed by the city council." The provisions indicate that it was intended to allow the council to provide compensation and to entitle the city secretary to collect and retain the compensation for each position, the duties of which he was required to perform. The phraseology of the legislation seems fairly to sustain that construction, putting the two provisions together, and thence derive a conclusion in regard to that meaning. Both provisions would necessarily have to be consulted in aid of the interpretation. The two provisions are not necessarily mutually opposed and incompatible. It is thought the limitation of section 125 was intended to apply only to the pay of the city secretary for services exclusive of clerk of the corporation court. It does not mean that he shall receive only $1,200 while serving as city secretary and ex officio clerk, but only as "city secretary." The Legislature would have so provided if it had intended to prohibit the allowance to the city secretary of ex officio compensation when the maximum compensation of both positions would exceed $1,200 per annum. The general state law applicable to county officials does expressly debar further allowance of ex officio compensation when the compensation allowed to the chief fixed and established office "shall reach the maximum provided for." Article 3895, R.S. Where the statute allows the additional compensation, and there is no statute debarring further allowance, the official can receive compensation for performing duties of an office to which the duties of another are attached. 43 C.J. p. 691.
The judgment is affirmed.