c

             OFFICE   OF THE ATTORNEY    GENERAL   OF TEXAS
                                AUSTIN




    Hmiorable Riohard C. 8&ui
    oounty Attorney
    warhlngton     county
    Branham, Texae
                                                    /\‘\
    mar      set                 Attenblonr Julian h. V&h




    mquestinCf an opus1
    material pOrtiOnB t
                                                                         1.i
Honor?bla      Richard     c,   zpinn, Fego 2



              -+ + ‘I would lppreoiata your oifloe fell-
        dorlng an opinion as to what amount would be
        proper an4 jurt ror Washington county to pay on
        the abovr mentioned oort bill as oomprnsatlon
        to the Commissioners .”

              Seotion     10 of Article   3284,   Vernon’s Revised
Civil    Statutea,      provides:

              When renlce   of notloe has been perroot-
        sd, the oo&miesIonerr shall at the tlnn an4 place
        appoInted or at any other time and place to whloh
        the hearing may be adjourned,  proceed to h?ar the
        part1ee.m

              SeOtlon     3 or Article    3266, Vernon’s Fsvleed
Civil    Statutes,      provI4ss:
              “Co55I&3sIoners shall reoelve for their se?-
        vloes three dollars   for each day they may be en-
        gaged in the performan      of their duties, and may
        withhold their decision until their fsse are paid.”
          Art.1010 3267 of such statutes,            relating   to the
award of costs,  provldee:
               *The oosta of the proceedings     before the
        oomuilsslonere and in the oourt shall be deter-
        mined as tollowe,    to-wit:  It the oomalselonere
        shall award greater damages than the plaintirr
        offered   to pay beiorr   the prooeedlngs    oorcmenoed,
        or if objectiona    are tiled to the deoislon      in
        the county court under the provlalona        of this
        title,   and the jud&rient oi’ the court is ror a
        greater sum than the amount awarded by the oom-
        missionerr,   then the plaIntitS    shall Pay all
        oorts; but if the amount awarded by the oomals-
        sionero   as dama .es or the judgment of the county
        court shall be f or ths same or leee amount of
        damages than the ar;ount offered     before proceed-
        lngs vere oomzenoed, then the oort.8 shall be
        paid by the owner of the property.’

          The Three Dollars per day allowed the OOmmiSsiOll-
era under the foregoing  statutes, are a part of the Costa,
to be taxmd and paid as provided in ArtI     3267, supra.
16 Texas zurleprudenoe,  para. 146, P. 765.
Honorable   Riohard   C. Splnn,   Page 3


             By whatever term thle Three Dollarr per day nay
be oalled,    whether ooneldered as Seer or nagee, it 11 to
be 4letlngulehe4     from the usual amount oharged asnooeteW
an4 taxed l e ouch.      Clearly, the per diem here la allowed
for eervloee    rendered an4 la not etrlotly   epeaking, nooate*
although it is paid by one or other of the psrtlee       to the
prooeedlnge.
            It has been he14 that rtatuter   relating   to ooete
in ordinary 01~11 prooeedlnge    do not apply.     See Dolores
No. 2 1. k C. co, v. Hartman, 17 Colo. 138, 29 Fao. 378;
Dickens v. Amherst Bater Co., 139 xass. 210; Johnson v. A.
S. Sutllse,   17 Neb. 423.
            *lOrdlnarIly day ie the spaoe of time which
     elapses while the earth makes a complete revolu-
     tion on lte axis, but artIfIolally,         It la the
     time between the rising and setting        of the $un.
     And in oode, No. 3825, providing        that the oom-
     tiesloners    of Insanity shall be allowed at the
     rate of Three Dollars per day eaoh, for the time
     actually   employed ln the duties or their office,
     the term 1s not to be eo construed,         and the
     atatute     entitled  the oomalsslonere     to full oom-
     pensatlon whenever they perform services          on a
     given day, regardless     of the nutr.ber of hour8
     spent in such employment.      Fite v. Dallao County,
     54. N. i5. 368, 369, 87 Iowa 563.* ?:ords and
     Phraser,   Vol. 2, p. 1837.

             mStatute allowing appraiser8   0s eetates
      no tto lxoeed Five Dollare per ,!day* for eer-
      rloea was not Intended to permit appraisers      to
      oolleot   plurality  0s appraleal se88 for name
      day’s work tmffi ffildnlght to midnight to perform
  ~~:I ~~“~~.‘~egp,~~~~i~~~~~~~~                 &&+?~d)
      I?&ee;    Fifth   Se~leo;Vol.    2,   p: 196.
            “If two oauses br,tween the same parties
      are investigated  and decided by the same arbl-
      tratore at the 8au.e tine,    they are entitled
      to be paid only for the number of day8 spent
      in the investigation     of both oaeee, and oannot
      make a dlrtlnot    oharge, for eaoh oaee.     clrard
Honorabls   %lohard C. .ZpInn, Page 4


     v. Hutohlnson, 4 r;ergeant k Ran188 Reports (Pa,)
     81,  .;ee also Buroher v. Soott, 1 Pa. L. J. Ii.
     311, 2 Pa. L. J. 287.”    8 Corpus Jurls, para. 427
     p. 174, note 9(a).
            In the abova oase “Chard v’. HutohInsonw, supra,
the arbitrators   met forty-two  times and oharged for forty-
two days, opent in the lnvest~gatlon    of each ease.    The
oourt doaided that theywere     only entb-tle4 to be paid for
forty-two   days servloe as a whole, viz.,    twenty-one days
In each Case,
            ‘zhlle the prooedural statutcl: under Tit.16 52, Ver-
non’s Annotated fievlsed Civil Statutes,        are singular In
terais with reference     to each prooeedlng being a separate
and dlstlnot     osse, it was never intended by the Leglsla-
ture that a plurality      of Three Dollars per day coltpensa-
tlon could be oolleoted      In more than one day.      The stat-
utes are silent      as to requiring  4lrferent    oonmlssIoners
to be appointed in each partloular        oaae.   ‘Se are unable
to give a oonstructlon      to Ahe statute    and the provision
“Three Dollars for each day they may be engage4 in the
performance of their duties ,” as peralttlng         &ore than the
oou,pensatlon rate prescribed.
           Assuming, with reference  to your request,  that
all awards were rendered on the fourth day and the oom-
mlssloners  during such four day period,  in the perfonranoe
of their duties,   were slttlng in eaoh 0688, the faot that
the oounty 1s charged with the ooets In all seven oases
would authorize   the proration of suoh co&pensatlon among
the seven eases.
            It is, therefore,   the opinion of this department
that where three oonzIasloners,     appointed under the pro-
vlslons   of Artiole 3204, Vernon’o Annotated Revised civil
Statutes,   in the perforffianoe of their duties render seven
awards during a period of four days, they would only be
entitled   to Three Dollars per day for the four days service
rendered.
            ft 1s further our opinion that the:oounty,   under
t,ha facts subrtitted,  would be entitled to prorate the sum
of Thirty-six   Dollars among the seven oases in whlcfi separ-
ate awards were rendered, no one oase requiring     a day’s
senioe.
    .
.




        Eonorable   Flahard    C. gplnn,   Fag8 3


                    Trusting    the above answers your request,      we are

                                                     Very truly   yours

                                                ATTORNEYG~3IiA.L CF TEXAS



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