                                         Septembez       27, 1951


          Hon. Gene Maddin
          District Attorney
          Waco, Texas                              Re:    Constitutionality     of the provision
                                                          in,Senate Bill 271, Act8 Stnd Leg.,
                                                          1951, ch. 368, p. 620 (Sec., 57, Art,
                                                          1436-1, V.P,C.),     requiring    the com-
                                                         ‘missioner6’     courts in certain Coun-
                                                         ties to fix an additional       salary for
                                                         tax collectors     for handling     certif-
.         Dear    Siq:                                   icate of titIe applications.

                         Your request     for an opinion           is in substance   as follows:

                          Does the provision     in Section 57 of Article    1436-1,
                 V-PC.,     as amended by Senate Bill 271, Acts 52nd Leg.,
                 1951, ch. 368, p, 620, providing that in counties wher.e,
                 the tax collector     is compensated      on a salary basis, the
                 commissioners’       court shall fix as additional    salary for
                 the tax collector     a portion of the fees collected    for cer-
                 tificates   of title applications   violate Section 61, of Article
                 XVI, Constitution      of Texas 7

                         Section   61 of Article    XVI, Constitution         of Texas,       provides
          in part:

                        “All district  officers  in the State of Texas and
                 all count$p,-officers in counties having a population ,of
                 twenty thousand (20,000) or more, according        to the
    .a.          then last preceding    Federal   Caneos~,shall be corn-,                 :              _
     ,.          pensated on a salary basis,      . . .

                          “All fees earned by district., county and precinct
                 officers    shall be paid into the county treasury  where
                 earned for.the account of the proper fund, . , , provided
                 that where any officer is compensated       wholly on a fee
                 basis such fees may b,e retained by such officer or paid
                 into the treasury    of the county as the Commissioners
                 Court may dir,ect.     . . .*

                         Section 57 of A&la         1436-l.+V.P.C.,         LO amended        by Senate
          Bill 271, =,          providest                      y


                                                         ’~.
                                                         .:                                     i.
    I   .




             Hon. Gene Maddin,          page 2         (V-1294)



                             “Each applicant for a certificate              of title or re-
                      issuance thereof shall pay to the designated                 a ent the
            ,I        sum of fifty (SO{) cents, of which twenty-five                 ?25$)
                      cents shall be retained bv the desimated      Y          acent.
                                                                                v        Twen-
                                                                                          -   ~~~
                      ty 20%) per cent of suchtwenty-five                (25C) cents sx
                      be set aslde    as a special     salary tund tor extra compen-
                      satlon and nersonal exmnses            o! the deslmated          auent
                     tar addrtronal duties       required     of him by this Act;           and
                     tram the remamder          he shall be entltled to sufficient
                      money to pay.expenses         necessary      to efficiently      per-
                     form the duties set forth herein; and the remaining
                     twenty-five    (25$) cents shall be forwarded              to the De-
                     partment for deposit to the State Highway Fund, to-
                     gether with the application        fok certificate        of title, with-
                     in twenty-four     (24) hours after same haps been received
                     by said designated      agent, from which fees the Depart-
                     ment shall be entitled to and shall use sufficient                 money
                    to pay all expenses necessary            to efficiently       administer
.                   and perform      the duties set forth herein; and there is
                    hereby appropriated        to the Department          all of 6uch fees,
                    for salaries,     traveling expense,        etationery,      postage,
                    contingent expense, and all other expenses,                  necessary
                    to ad-minister this Act through the biennium ending Au-
                   guet 31, 1951, Provided any such designated                    agent may
                   employ any an+ all necessary             assistants       and incur any
                   and ail necessary        expense in administering             this Act in
                   his county,      Such designated agents shall pay such em-
                   ployed assistants       and such necessary           expenses      incurred      y
               ( by him from the funds retained by him hereunder,                          and
                   any amount of such fund6 remaining                 in his hands in any                    I
                   event shall be by him remitted to the Road and Bridge
                   Fund of his county; provided further, that in counties
                   in which the designated         agent is compensated             on a fee
                   basis, he shall be entitled to retain, as added compen-
                 (sation,, the fund created by the twenty (20%) per cent of                             *.
                   the twentv-five      i25C) cents above set aside: and in coun-
                  ‘ties where he is‘compensated             on a salary basis, the
                   Commissroners         Court shall fix and allow, as addltronal
                   salary for the duties required           under this Act, a sum an-
                  nuallv not less than flftv ISO% 6er cent and not more
                                                  ,.     ,~,&


                  Lan the total of the special salary :und created
                  3.
                                                                                      by set-
                  t;ng asade one-fafth        1/5) ot such twenty-five            (25C) cents
                  ree retained,      any axcess to bepaid          into the Road and
                  Bridge Funa of the county,”             (Emphasis        added through-
                  out.)

        The county.tax collector  in each county of the State is the “designated
        agent” referred to in thia ‘statute, Sec. ,26, Art. 1436-l. V.P.C.
,   I
        ,   .



                Hon. Gene Maddin,      page 3      (V-1294)



                             Section 61 of Article XVI of the Constitution      did away
                 with the fee system of compensation      in counties of 20,000 popula-
                 tion or more and in counties of less than 20,000 population whcre-
                 in the commissioners’     court determines    that the officers   shall
                 be compensated     on a salary basis.   Under the fee system      as it
                 existed at the time of the amendment,      the officer received     and re-
                 tained the money collected     as fees without depositing    it in the coun-
                 ty treasury during the fiscal year, only accounting       for the manner
                 in which it was spent,    Arts, 3883, 3851, 32197, and 3899, K.C.!S.
                .1925,.as amended prior to August 24, 1935. The amount he rc-
                 ceived as compensation     and the time at,which he received       it dep?.t
                 pended upon the collection    of fees as services    were performed.
                 Any excess over the amount the officer       was entitled to retain as
                 compensation    and the amount spent for authorized      expenses was               ‘:
                 paid into the oounty treasury at the end of each fiscal year.         Art,
                 3898, R~.C&, 1925,

                            By virtue of Section 61 of Article  XVI, officers  compen-
                sated thereunder    on a salary basis are required to pay into the
                county treasury all the fees of office as they are collected.     One
                purpose of the amendment was to bring into the county treasury
                the money collected    as fees at the time they were collected    and
                thus to give the county a greater control over these funds than it
                had theretofore   possessed,    The amendment    does not specify that
                the iees shall be deposited in any particular   fund; it provides   only
                that the fees shall be paid into the county treasury    “for the account
                of the proper fund,”

                             In construing   the provision     of Article 1436-l authorizing
                the county tax collector     to retain twenty-five      cents of the certif-
                icate of title fee, it was held in State v.!. Glass,      167 S.W,2d 296 (Tex.
                Civ.. App~. 1942, error ref. 14i Tex, &3., 170 S. IK,Zd 470),, “that where
                the tax collector    was compensated       on a salary basis, these fees
                were to be paid into the county depository,           See Att’y Gen, Op,*O-
                5447 (1943), Senate Bill 271 does not attempt to change this con-
                struction.    Under the provision     that twenty per cent of the twenty-
                five cents “shall be set a~side as a special salary fund for extra
                compensation      and personal expenses       of the designated    agent,” tax
                collectors   who are compensated        on a salary basis are required         to
                deposit this amount in the county treasury,            The statutory require-,
                ment that it be deposited in a “sRecia1 salary           fund” does not con-
                travene Section 61 of Article XVI, which provides             only that the fees
                be paid into the treasury      for the account of the “proper fund.” The
                Constitution permits the Legislature          to designate what is the “prop-
                er fund” for the deposit of fees., and the Legislature           had the author-
                ity to specify that the feesfrom        this source    should be deposited      in
                a special fund. Att’y Gen; Op. O-5453 (1943), We therefore                con-
                clude that the provision     of Article    1436-l creating a special salary
                fund is not violative    of the constitutional     provision   under consider-
                 ation,
tion.,    Gcnc   Mvladdln,   page   4   p-1254)




            A second purpose in the adoption of Section 61 of Article
XVI was to chance the comnensation         of certain countv officers
from a fee basis-to a salar; basis aione.         Settegast vl Harris Coun-
ty, 159 S. N.2d 543 (Tex. Civi APP, 1942, error ref.).          In order to
stermine    whether‘Article    1436--i violates the constitutional      pro-
vision for compensation     of officers   on a salary basis, it is neces-,
sary to determine    whether the compensation         to be pjrid the tax col-
lector under Article 1436-1 constitutes       a fee or a salary.

            The Constitution     itself does not define salary.       Webster’s
New International     Dictionary    (2nd Ed3 1938) defines salary as fol-
lows:   “The recompense       or consideration   paid, or stipulated      to be
paid, to a person at regular intervals for services,          especially    to
holders of official,’ executive,     or clerical positions;   fixed compen-
sation regularly    paid, as by the year, quatier,      month, or week.P
The distinction    between “salary” and “fees” has been considered              in
numerous cases.       In Board of Commissioners         of Teller County v.
Trowbridge,     42 Cola. 449 95 Pac. 554 555 (1908) the court stated
ahe test, which has often deen repeated in other &es,             as follows:

                 “The distinction   between salary and fees recog-
         nized by all the authorities     is this: A salary is a fixed
         com?ensstion ior regular work. wtile fees are compen-                       .
         sation for particular    services    rendered at irregular
         periods,   payable at tine time the services    are rendered.”

            In Cox v. Holmes, 14 Wash. 255, 44 Pac. 262 (1896), the
court had before it a constitutional   provision    that the legislature
‘shall fix ‘the compensation  by salaries    of all county officers.”
It was there stated:

                “We think that the system which the framers           of
         the constitution     intended to provide by section 8, supra,
         was that of ‘fixed’ and established      ‘compensation    by
         time’ as distinguished       from the system of specific    fees
         for specific    services   which had theretofore   prevailed;
         and - . ~ it was used in the constitution     tD mean ‘a pay-
         ment dependent upon the time; and not on the amount of
         the service    rendered’ by the officer,”

             According     to ail the definitions  which we have found, the
characteristicrwhlCh:d&tinguishes          a salary irom fees is that a sal-
ary is p&id at regular      intervals;  whereas a fee is paid for a partic-
ular service as and when it is performed,           In Landis v. Lincoln
County3 31 Ore, 424, 50 Pac. 530 (1897), the court pointed out this
-ion          in the following language:

                -By the ordinary acceptation of the term ‘fees,!
         as heretofore  and now used in the statute, we under-
Hon. Gene Maddin,       page 5       (V-1294)



       stand it to signify compensation     or remuneration        for
       particular   acts or services  rendered by public offi-
       cers in the line of their duties, to be paid by the par-
       ties, whether persons or municipalities,         obtaining the
      benefit of the acts, or receiving     the services,      or at
      whose instance they were performed          [citing author-
      ities],   while the term ‘salary’ denotes a recompense
      or consideration    to be paid a public officer for con-
    . tinuous, as contradistinguished     from particular,
      services,    and may be denominated      ‘annual or period-
      ical wages- or pay.‘”

             We think Article 1436-1 contemplates           that the commis-
sioners’ court shall fix a definite annual sum to be paid to the tax
collector   as salary,,   It is significant    that the Legislature      has pro-
vided two methods of compensation,            one applicable    to tax collectors
compensated      on a fee basis and the other applicable          to tax collectors
compensated      on a salary basis.      It is evident that the Legislature        in-
tended that the latter officers      should be paid a salary,        having in mind
the distinctions    which we have been discussing,Thetatute                  does not
authorize the commissioners’          court to set a rate of compensation
based on a percentage       of the amount collected.;       Rather,    it provides
that the commissioners’        court shall fix a sum annually~.
                                                           ..
              Applying the definitions noted above, the question for de-
termination     is whether the compensation   allowed is a fixed amount.

             In Cheer v. Hunt County,       249 S.W. 831 (Tex,      Comm;     App.
1923), it is stated:

            “The controlling  element in determining    whether
     the ,amount to be received   is upon a commission    or
     salary basis is whether that amount, by whatever      name
     it may be called, is absolute and fixed regardless     of
     what the lawful commissions      may be, or is made con-
     tingent upon earning that amount as commissions,”

in that case, a statute required that the county treasurer       be com-
pensated by commissions        based on the amount of money which
passed through his hands,.. The statute set the maximum          amount
of commissions      to which he was entitled at $2000, but authorized
the commissioners’       court fo fix a lower amount as the total com-
missions    which he could receive,      The Commissioners’     Court of
Hunt County had undertaken to’fix the amount of $1200 as the
treasurer’s    “salary,”   which was to bc paid in equal monthly in-
stallments   of $100 out of county funds, regardless      of whether the
treasurer   had actually earned that amount in commissions.          The
  Hor~,Ccno    ‘Maddin, page 6        (v-1294)



  court held that since the amount fixed was not contingent upon’
  the treasurer’s  earning that sum in commissions,   it was a sal-
  ary.

                We do z&it e@r&tC.        the Greer case as holding that a
  fixed amount designated as a salaryisnverted                  into fees mere-
  ly because it is payable out of a fund originally          accumulated
  from fees.     The compensation       of an officer may be a salary in-
  stead of commissions        or fees when it is payable out of other
  funds, as in the Greer case, but a salary does not necessarily
  become commissicinsor          fees when it is payable out of a apecif-
  io 5&d composed       of the commissions        or fees.   It is not uncom-
  mon for the Legislature         to provide that the expenses       of various
  departments,     including salaries      of officers  and employees,      are !O
  be paid out of fees collected       by the department.       An example     of a
  similar provision     is found in Article 1436-1, in providing         that the
  expenses    for administering      the Certificate    of Title Act are to be
* paid out of the fees collected       thereunder.     So far as we know, the
  power of the Legislature        to provide that a nertain salary shall be
  paid from a specific      fund, in the absence of a constitutional        direc-
  tion that it must be paid from a designated           source, has never been
  questioned.

               Under Article 1436-l. the amount of the salary bears a
  relationship   to the volume of work performed        in the particular
  county,    While it has sometimes     been stated that a salary is based
  on time oi service rather than on amount of services           rendered,
  the s’atement should not be taken to mean that the salary limits
  cannot be determined      on the basis of the officer’s    responsibilities.
  The iact that an officer is granted compensaiion         in proportion       to
  the amount ,of work done does not prevent it from being a salary.
  Indeed, it has been recognized      in numerous    cases that the volume
  of work done is a fair basis for fixing salaries.        In Bexar County
  v. Tynan, 128 Tex. 223, 97 SiW.2d ~467, 470 (1936), the court            said:

                “In the case of Clark v. Finley, 93 Tex. 171,
        54 S. Iv. 343, this court recognized       that substantial
        differences    in populations    of counties could be made
        a basis of legislation     fixing compensation     of officers,
        on the tfieory, as the court clearly recognized,          that
        the work devolving upon an ofiicer was in some de-
        gree proportionate      to the popuiation of r’he county.
        This has frequently      been recognized     by courts as
        creating a sufficient distinction      to justify a larger
        compensation      for county officers    in counties having
        a large pdpulation as compared         with compensation
        to llle officers    in counties having a small population.”
Hon. Gene Maddin,     page 7      (V-1294)



Although this case dealt with compensation       on a fee basis, the
principle    that the amount of compensation    may  be varied in pro-
portion to the volume of work done is equally applicable        to com-
pensation of officers    on a salary basis.   The fact that the clasc.-
sification   is placed directly  on the volume of work rather than
on the indirect basis of population certainly     should not vitiate
the classification.

              In view of the foregoing     discussion,    we are of the
opinion that the provision      in question is not violative      of Seciion
61 of ;\rtiile XVI, unless the requirement          that the officer   re-
ceive at least fifty per cent of the amount collected           produces
this result.    We do not believe the fixing of the salary by the
commissioners’       court at an amount which happens to exceed
the saiary fund accumulated        during the fiscal year wouid de-
stroy its character     as a salary.     However, it might happen that
the commissioners’        court would fix the salary at an amount
less than fifty per’cent     of the fund. In that event, the tax col-
lector could demand that he be paid the difference             between the
amount allowed and fifty per cent of the fund, This being true,
t:he amount which the officer actually received           might .be direct-
iy contingent on the fees collected.         Under one view 0:‘ the rule
announced in the Greer case, this mandatory              minimum concciv-
ably might deprivwcompensation                of the .essential   character-
istic, in order for it to be a salary, that the amount actually
paid to the officer be independent of fees collected.             We do not
believe the court intended its holding to extend that far.             The
question before the court was whether commissions                were con-
verted into saiary by virtue of the fact thai the amount allowed
was payable out of other funds,         it is not at all clear that the
court, if presented with the converse          situation, would haves held
that what purported to be a salary became fees:morely.,becauoe
the compensation       was based on the volume of work which the of-
ficer performed      and was payable out of a county fund composed
of fees.

             We are of the opinion that the salary      allowed in Section
57 of Article 1436-l meets the test that it be a fixed amount.           How-
ever, Section 61 of Article XVI does not clearly        require that the
saiary paid thereunder      be a “fixed” amount,    One oi the main ob-
jects of the constiiutional    amendment,     as we understand    it, was to
provide that officers    be paid at rL*guiar intervals     rather than at
irregular   intervals as the fees were collected      and to require that
the fees coming into their hands be placed in the county treasury.
Section 61 of Article XVI does not indicate that the saiaries         bf
county officers    must be unalterably    fixed at a definite amount in
advance,    We cannot say that it clearly prohibits       the enactment
of this statute.
Hon. Gene Maddin,       page 8      (V-1294)



               It has been noted that the Legislature         has provided two
different methods of compensation             under Senate Bill 271, one ap-
plicable to tax collectors        compensated       on a fee basis and the
other applicable      to tax collectors      on a saiary basis.     Manifestly,
the Legislature      was striving to observe the constiktionai             re-
quirements      and to enact a valid statute.         The Legisiaiure     obvious-
iy construed      Section 6i of Articie      >:VI as nor prohibiting     disc en-
actment of the provision         in question.     Where the meaning of a
constitutional     provision    is doubtful, the interpretation       given to it
by the .legislative     .iranch of the government is entitled to weight
and should be followed         unless it is wrong “beyond a rcasor,able
doubt. ” Koy v. Schneider,          110 Tex. 369, 2i8 S.W. 479, 221 S. N.
880 (1920). In Dowdeli v. McBride,             92 Tex. 239, 47 S.W.. 524 (1898),
the court said that iegislative         interpretation    as applied to the Con-
stitution may be resorted          to for the purpose of holding an act con-
stitutional   “unless it be clearly not.” Aiso see Hill County v,
Sheppard, 142 Tex., 358, 178 S. N.,2d 261 (1944).

              No principle  is more iirmly established        in the law than
the rule that a statute is presumed      constitutional     and will not be
deckred    unconstitutional   unless it is clearly    so. An act of the
iP&slature     must be sustained as constitutional        unless its enact-
zznt is exprcssiy      or by necessary   implication     prohibited  by t‘nc
Constitution,    Dendy v. Wilson, ;42 Tex. 460, 179 5. N.2d 269 (19443;
Trapp v. Shell Oii Co., l%??i!Fx. 323, i98 S.W.2d 424 (1946); Duncan
v-. Gabler, 147 Tex. 229, 215 S.W.Zd 155 (1948).

             Since we are unable to say that Section 61 of Article      XVI
cifarly  prohibits   the enactment of this statute and since the Leg-
islature has construed     it as not prohibiting   the enactment,   we are
not prepared    to say that this one feature of Article     1436-1, by which
the amount fixed by the commissioners’          court may be varied. ren-
ders the statutory provision     unconstitutional,




                                 SUMMARY

           Under Article     1436-1, V.P.C., as amended by
     S.B. 271, Acts 52nd Leg., 1951, ch. 368, p. 620, the
     commissioners’     court is required to fix a definite
     sum a,s additional   salary for the county tax collector,
Hon. Gene Maddin,     page 9    (V-1294)

                                                           .


     -payable out of the “salary fund” set up in the
     statute, where the tax collector    is compensated
     on a salary basis.    The provision   of Article
     1436-1 for the payment of an additional salary
     to county tax collectors   compensated    on a sal-
     ary basis does not violate Section 61, Article
     XVI, Constitution   of Texas.

                                     Yours very truly,

APPROVED:      ,.                     TRICE DANIEL
                                     Attorney General
Everett Htitchinson
Executive Assistant

Charles  D. Mathews
First Assistant                         Assistant


MKW:b
