Opinion
8 Div. 5.
November 15, 1917. Rehearing Denied December 24, 1917.
Appeal from Circuit Court, Morgan County; R. C. Brickell, Judge.
Callahan Harris, of Decatur, for appellant. E. W. Godbey and Wert Lynne, all of Decatur, for appellee.
Section 217 of the Code provides:
"The county treasurer receives such compensation as may be allowed by the court of county commissioners, in no case exceeding two and one-half per cent. on the money received, and two and one-half per cent. of the money paid out by him. His compensation in no case shall exceed the aggregate sum of one thousand dollars in any one year."
This statute delegates to the commissioners' court the power of prescribing the compensation to be paid to a county treasurer, within the double limitation of the percentage and the maximum aggregate stated. Very clearly it imposes no restriction upon the court's discretion as to the mode and time of payment, whether the compensation be "allowed" from time to time as percentage on sums received and disbursed, or "allowed," once for all, by fixing an annual salary. In either case, the allowance is qualified by the limitations of the statute, as if expressly written therein; and, if the amount paid as compensation exceeds either the statutory percentage on the funds handled, or the statutory aggregate of $1,000 for any one year, the payment is, as to such excess, unauthorized and illegal, and may be recovered by the county.
The real question in this case is whether or not the order of the commissioners' court, made on November 23, 1904, and prescribing for the compensation of the treasurer an annual salary of $800 "during his term of office," was such a fixing of his compensation as to bring it within the influence of section 281 of the Constitution, which provides that the salary, fees, or compensation of a public officer —
"shall not be increased or diminished during the term for which he shall have been elected or appointed."
If, as might have been done, the Legislature had itself prescribed the compensation of county treasurers, it cannot be doubted that this constitutional inhibition would have applied to future legislative action. The commissioners' court here exercised a delegated power; and, though its exercise in this particular way was discretionary, we can discover no sound reason why a salary or allowance, once prescribed, should not be controlled by the constitutional mandate. It would certainly be an indefensible inconsistency to say that, although the Legislature is inhibited in such cases, yet its mere creature and agent, the commissioners' court, is, within its delegated sphere of action, subject to no such restraint. Indeed, the case seems to us to come squarely within the letter as well as the spirit of the provision quoted. A well-reasoned decision which supports this conclusion will be found in the case of Purcell v. Parks, 82 Ill. 346, where it was said:
"We are all of the opinion that when the board has once acted, and fixed the compensation of the county clerk, that compensation cannot be changed so as to increase or diminish the compensation to be received by him during his term. A subsequent order of the county board, increasing or diminishing the compensation of the county clerk, can operate only upon the compensation of clerks whose terms begin after the making of such order."
In Texas it has been held that a statute providing that the salaries of officers shall not be increased or diminished during their term of office applies only to officers whose salaries are fixed by law, and not to orders of the commissioners' court fixing the amounts to be paid to county officers for ex officio services. Collingsworth County v. Myers, 35 S.W. 414. That decision, however, was based upon a consideration of the provisions and policy of correlated statutes, and cannot be regarded as apt authority in a case like the one here presented. Had the statutory inhibition covered compensation as well as salaries, no doubt the Texas court would have reached a different conclusion.
When official services are compensated by a fixed annual salary, and the term served includes a fraction of a year, the intendment is that such fraction shall be compensated pro rata. Hence we conclude that the treasurer, Epperson, was entitled to receive for the fractional period from November 22, 1904, to January 18, 1905 (1 month and 27 days), approximately $156, provided the statutory percentages on funds handled during that period amounted to so much. For each of the four succeeding years, he was entitled to receive $800, under a like limitation. Whatever he has received or retained in excess of such amounts belongs to and is recoverable by the county; and the right of the county is not prejudiced by any action of the commissioners' court ratifying, approving, or confirming a larger compensation than that originally fixed by them. Such action, whether deliberate or inadvertent, was illegal and of no effect.
The ruling and judgment of the trial court was not in accord with our views of the law as above stated. The judgment will therefore be reversed, and the cause remanded for further proceedings in accordance herewith.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.