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