     OFFICE   OF THE AlTORNEY         GENERAL   OF TEXAS
                             AUSTIN




Honorable   Pat Beeke
County Attormq
Andrewa county
Andrew6, %xaa
Dear Sir:




                         9 the vatlua.tlo,a WM a little    over

                     rifS or Andrsws GQtulty ta being pria
                     I, end hie fees run over the nmlmua.
                  report   ior the year o? me he nhmmd
     a6 R aFedlt ta himself an Item of $600.00, which
     he lr elalring     au ear expenser but ha failed to
     make aonthl9 axpemc reports ar previded b9 tit%-
     cle Ho. 3899, and further even in hlrr fee repart
     he doen not attempt to itmnlce or explain the be-
     c%uotion sther thm oar expenee.
            "Queetiont      CM the Oommierionere Court
Honorable Pat Beene, page 2


        legally  allow this Item of $600.00, under the
        above set out alroumetenoee;  to the Dherlff?
               *The she!%fr or Andrewa County la aleo
        the Collector    an& Atmeasor. of Taxem; and the
        benk, whloh 1s the County Depoaltory,     lr lo-
        oated In Midland, Texae, and the only plaoe
        provided ?or his keeping the money, which he
        colleots,   other than In the depo&ltory ie 8
        vault in the Court house; In April or la&t
        yenr thlr   vault W&IIbroken Into by thlevem,
        who have never been apprehended, and (407.64
        In oash use taken.
             "QuestIon'  1s the Colleotor responslble
        ror this loaa, and should It be returned to
        the County?
               "Aa above noted for the year of 1938
         Andrew County had a valuation of between S
         and 6 mIllIon,   thereZore the orjuntr oommisaioa-
         era salemlee wae figured on a per diem bar5.e~oi
         @LOO per day, ror the ydar of 1939.      Eaoh Uom-
         mlasloner,  during it& year of 1939, tyrned in
         his time at eaoh CommIraionc~re" Court meeting,
         and It wa.a palreed upon ;@d the Clerk Issued a
         warrant ror ruoh tlpteturned in; ead at the md
         of the year eaah of the aommlssloners had not
         drawn all or the maxImumprovPded      under
         Artlole 2360, but theyypaared an order oommand-
         Ine the olerk~to   Ietue a warrant to eaoh oom-
        ‘mIns4oner In amount of the dtfrerenae    between
         smount reoelred   during l[eap and the ILuImum,
         vhich In th16 Inetence I& ~l~2OO.W.
              "'Question   Gan thIe be legfilly   done?
              SeoUon (a) of Artiole   3899, Vernon's      &notated
Civil    Statutes,  reads In part a.8 followa:
               “At the close  or each month or his tenure of
        offloe   eaoh offloer  named hereIn who Is compen-
        sated on i fee basle shall make as part of the
        report now required    bp law, nn Itemized and morn
        statement of all the ootual anti neoeseary expensea
Honorable Pat Beene, page 3


      Inaurred by him In the oonduct of Me ofrice,
      such as etatloncry,     stampa, telephone,   pre-
      mIums on orrlolale~     bonda, InoludIng the ooet
      of surety bonds for hIe Deputior, pramIum on
      flre,,~ burglary,  theft, robbery Ineurance pro-
      teotlng public funda, traveling      expenses and
      other neoesaary expenses. . . Ii suoh expenees
      be InourreU In eonne tlon uIth any partioular
      caee, such etatcment ahall name such aaGe.
      Suoh expense acoount shall be aubjeot to the
      audit of the County Auditor, If any. otherwise
      by the Commieelonera’ Court; an& ii It appears
      that any Item of suoh expense was not Incurred
      by such orflcer    or suah’ltem was not a neoeeeary
      expense of orfioe,     suoh Item shall be by suoh
      auditor or oourt rejeoted,      In which OBR~ the
      collection6    of such Item may be adjudloated      In
      amy oourt of oompetent jurlsdlotlon.        The amount
      of salaries paid to Aeslstants      and Deputlee ahall
      also be clearly    shown by ouch oIflOer,    giving
      the name, poaltlon     and amount paid e&oh; and In
      no event &all auy.offIcer       show shy greater.     .~
      amount than aotually pold any euoh hslettk#            or
      Deputy.     tie amount of suoh expenaee, together
      with the amount ef ralariea paid to Ae6Istants,
      Deputlee and Clerke ahall be paid out of the
      fee8 earned by such oftleer.      . .*             -..
            The aaae of Pierson, Justlae of the Peaoe, et al.
YE.  Calves.ton County,’ lS1 8-U. (I?d) 97, holda, among other
things, that a Juetloe of the peaoe ~a6 not entitled      to re-
cover from the oountg oertaln Item8 of expenee claImed for
postage,   traveling expetmen, and messenger eervloe during
oertaIn years In orrIo@, where the juetloe      bid not render
monthly etrtements of euoh expenses aa requlred by etatute,
but merely filed annual report@ eEtI.metIng the expense bn
lump cum emounta.
          %ierrIng  to ArtIale 3899,        aupra, we quote from
the above mentioned aaee a6 folloua:
            “The m8nifeet  purpoee 0r thle statute    was
      to provide a mean8 0r eeaertalnlng     the oorreot-
      neaa of expense Items eaah month as they are
      incurred.   The s.ctuel exTense6 pald or inaurred
      oonstltute  the mea&ure of the oi’fiolalfe   right
S$onorebla Pat kene,    wage 4


     to reaoupment.   rhe monthly ltaslratlon   la for
     the proteatlon  of the aounty by ef~ording a
     meane of arasrt~lnlngthe faat (md amount OS
     euoh claimed item o? expense and whether it
     WBSproperly ahaxgeablc aa such.      It la aanl-
     feet from the annusl reports and aonflrmed bye
     the eridenae that th464  expenrer were mere1
     estimated end a lump tauroglren eaah year.    hhe
     statute would be of no value ii lts aslutory
     provlsione oould be evaded in this manner. We
     hold the ltens nroptrly dlrallowed by the Com-
     mleaionere~ Court, and the trial aourt's    judg-
     ment oorreat in denying reaovery therefor.*
           Therefore,   your irkret question   Is answered, in
the negative.
           In the oar6 of Boggy-~.ys. The Btato, 46 Tax. Rep.
p. 10, the defendants  filed a%rpealal      aneuer, averring that
Boggs, as Tu Callmtor,    having oolleotecl    the tuoa,  and
being about to 6t&rt to AuatLa dth the rone~, hrd #lSOO.OO
of It stolen iron him, without hls raolf,       (atstlng thc'eir-
oumstanaer of it8 loam.1 fhe plaintiff       fllod exaeptUm8 to
this answer, whloh was surtbined,    whloh 18 aerlgnsd as error.
           We quote rrf3N)pD
                          the 8bave mentlaneb oas+-as      r0nowr:
             ‘It was oontended by the counsel for the
     e~pellante      that Boggs, being an orrloer,oe-
     ouplscl    tovard the state the position    oi a
     ballee ror hire, In the business of oolleotlng,
     preserving,      and aaoountlng for the taxsa of
     Rusk Countr, and thet as he took oare of the
     money in hla hands, as a prudent man would
     ordlnarlly      have done, in refermoe    to Ns own
     property,      neither he nor hirr suretlea were
     responsible      ior it6 loee,.
            'Ye do not understand suoh to be the legal
     poaitlon   and repponalUl.ity or tht pub110 of-
     flosr whoae duty It is to colleat    and aooount
     for the money of the atate aa a tax aallaotor,
     nor is it in aaoondanoa with the terms of hle
     bond, algnti by hlm ad Me sureitles      as pra-
     aorlbed by lew.
          'h la bound to amount for and pay over
     th? amount of money whloh he oolleata lera Ns
Hzn~-ruble Pat Scene,     page    5



      oommiesIons,     or his    sureties   must do It     for
      him. ”

            Ne quote    from Corpus     Jurls   61,‘p.l023,~as      follows:

              ‘A collector     of taxes 1s not regarded aa
      a bsllee    of the money collected     by him end re-
      maining In hIe hands, but he Is an insurer of
      its safety      agaInet loss by any means whatever.
      Be Is therefore       responsible  for the taxee col-
      leoted,    although he is robbed.of     the money or
      It Is ttolen      from him. M

                The case of American Indemnity Company, et al. vs.
State,     104 S.U. (2d) 68, .waE a suit instituted        by the atate
In the distriot        court of Bldalgo     County for two dlstknat    pur-
poses,     first,    to set aelae the Judgment in @muse No. B-3697,
styled     The State of Texas v. Brown Land and Cattle Company,
et al.,      and eecona,    to recover   from 0~. Em. Jonee,  former tax
collector       of HIdalgo county,     ae prlnolpal,  and the American
Indemnity Company, ae surety on his official             bonds as tax
collector,        the sum of *16,379.11,     together with Interest,
alleged      to have been paid out by Jones from funde In hls
hands as tax oollector,         in oonrorslity    dth  and under color
of the Judgment in aause No. B-3597.

            We quote    from    the above   mentIoned    caee_.as   followe:

             *It was said in the ease of Town of
     Cameron v. Hicks,       65 W. Va. 484, 64 S.E. 832,
     835, 17 Ann. Gas. 926; ‘*y ,the great weight of
   . authority,     the custodian    of $ublIc money Is not
     e ballee,     bound only to the exerolse        of high
     degree of care,      prudence,    and dlllgencefbr      lte
     eafety,     and exeueable    for the loss thereof by
     fire,    robbery,   theft,   or bank failure,      when such
     1013s Is not in any senee due to negligence             or
     mfsconduct     oil hi8 part,   but a debtor and lnsurer
     to the extent of the amount received,             excueable
     for no losses      except those resulting       from acts
     of God or the pub110 enemy.’

             “Thcugh Jones may have paid this money out
      in  good faith     and under the belief   that It wae
      his duty    to  e0   60, es a result  of the Judgment
      In cause No. B-3597, neverthelese,        he was an
      insurer    of these funds and his failure       to pro-
      perly   account    for them to the State of Texas
      renders    him and the surety on’ his offialal      bona
      liable   to the State to thet extent.       . .*,
Han->rhble Pat Beene,        Page 6



              Your second     question    is    answered   in   the    affirma-
tive.

          Article 2360, Vernon’s               Annotated   Clvll      Statutea,
reads In part a6 followe:

               ‘In oountles having the following            assessed
        valuations,      reepectlrely,      as shown by the total
        aeseseed    valuatlone      of all propertlee      certified
        by the county aseee6or          andgproved      by the Com-
        missioners     Courts, for county mrposes,          for the
        previous    yeer,    from time to tlme, the County
        Commissionera       of auoh counties       ehall each re-
        ceive annual ealarles          not to exoeed the amounts
        herein    epeoified.     eaid salaries      to be paid In
        equal monthly lnetallments,            at leaet one-half;
        and not excfedlng        three-fourths,       out of the hoad
        and Zrid e und and the remainder out of the
        General ‘utid of the County;           said asseeeed     valua-
        tions and salariee         applloeble     thereto  being a8
        rol.lows:
            ". . .
             *In countiee     havln~ as&eesed Valuation       Of
      more than Four Million          Bive Hundred Thousand- and
      One Dolhrs ($4 500,001)          and lees than 2io Mll-
      lion uollars     (f6,000,000)       eeoh oommleeloner   shall
      receive   Five Dollars       ($6) per day for eaoh day
    . ‘served a6 oommle&ner,          end a like amount when
      actPng’a6    ex-officlo      road euperlntendent     in hle
      Commiesioners      Precinct,     provided  in no event shall
      his total    compensation       exoeed Twelve Hundred Dol-
      lars ($1200)     In any one year. a

             Ae above stated,   Andrew6 County had aaE:essed val-
uatlons    of all properties   of between Five Dollar6 ($5)    per
day for eaoh day served ae commissioner       for the year of
1939 and each commissloner      turned in hia time at e&h com-
mlssinners     court meeting,   and it wa8 passed upon and the
clerk   issued   B ws~rrant for suoh time turned in.    At the end
of the ye&r each of the commissioner6       had not dim    all Of
the maximum provided      under Artiole  2350, supa, but the
Honorable    P6t   Srene,     pge 7



oommlsei~3-iere~oourt passed en order oommandlng the clerk
to 166ue a wsrrant to e6oh oommlasloner             in amopnt of the
differenoe      between the amount reoelved        during the year
qnd the maximum, which in this lnstanoe             wee Twelve Hundred
Dollar6    ( 1200).      Eadh oommI66ioner la entitled         to Five
Dollars    ( $ 5) per day for each day'actually         nerved a6 com-
mIesI.:ne    , a6 provided     In Artlole    2360, 6upr6, and 16 not
entltled     to the maximum unlees he has aotu6lly           6erVed a6
oommissl-:ner      for a 6UffIOient    length of time at $5. per day
whloh would emount to the maximum of $1200.               In thle oon-
neotion    we interpret     the word6 'eaoh day served a6 commIs-
eioner*    to mean rach day or the time aotually            served by
eeoh commleoioner        in performing    the duties of aommlesloner
a6 lmpoeed by law and doe6 not Include             any time which wa6
not actually       served In the performing       of then duties   a6 oom-
miesioner.

             We quote       from   Texas Jurls.      Vol 34,   p.    S29 a6
r0ii0w6:
              *An orrloer   16 entitled    to compensation
       et the rate presorlbsd      by the etatute whIoh 16
       in foroe when hle eervloes       are rendered.     Or-
       dlnarlly   statutes   and orders making ohangee In
       the compen6atIon     of offlOer6    speak prospeotiv;:;,
       and will   not be given a retroaotlve effeot.
       may a commlesioners' court make a changed r&e
       of oompensatlon     apply to eervloes    already   rin-
       dered.   . .*

             Statute6   prescribing    feee for public      offloere  are
striotly    oonstrued;   hence a right     to fee6 may not rest in
ImplIoetlon.      Where thI6 right is left        to construotlon.    the
language of the law must be oonstrued           in favor of the govern-
ment.     Where a statute    16 ceoable of two conatruotions          one
of whloh would give an orrlckr         comDen6atIon for hi.6 ee&Ioe6
in addition     to hi6 salery     end the bther not, the later       oon-
struotlon    should be adopted.       See the oe6e Of McCall6 v6.
City of Rookdale,      245 S.W. 684.; Eastland County v6. Hazel,
288 S.W. 518; Madden v6. Hardy, 50 S.W. 926.

             In view of       the foregolng    suthorltleg,          your    third
question    Is answered       In the neg6tive.

             Trueting       that   the foregoing      fully    answer6      your     ln-
qulries,    we remain

                                                   Pours very truly

                                           ATTOPXEY GENERALOF TEXAS

                                           BY           /d
                                                          Ardell     Wlllltu116
                                                                    Resistant
