From the opinion of the Court of Civil Appeals we copy the following findings of fact:
"T.F. Thompson was county clerk of Ellis County from December 1, 1897, to November 23, 1898. Ellis County cast as many as 7500 votes at the presidential election held in 1896. Thompson collected in cash from all sources as fees earned by said office during the time he was clerk $6886.70, less a credit of $136.10 for error and stamps allowed, leaving $6750.60. He also collected commission on fines, $190.55. There were delinquent fees at the time he went out of office, $1294.61, of which he has since collected $239.55, and there is in the hands of the present clerk $167.50 not yet paid over to Thompson. Thompson paid out for assistants and deputies appointed as required by law, $4151.59."
In accordance with the requirements of the statute, Thompson made a report to the District Court of Ellis County of fees collected by him during the year from the 1st day of December, 1897, to the 23d day of November, 1898, at which time his term of office expired. By this report, he showed that nothing remained in his hands of the fees collected, *Page 26 after deducting those sums which, according to his construction of the statute, he was authorized to retain. Ellis County instituted this suit in the District Court of that county against Thompson to recover of him the sum of $1030.11, claimed to have been collected by him as fees during the year aforesaid and which was in excess of all the different amounts to which he was entitled under the law. The trial court gave judgment that Ellis County take nothing by its suit and for all costs, which judgment was affirmed by the Court of Civil Appeals.
Defendant in error filed in this court a motion and plea by which he seeks to have this writ of error dismissed because he alleges that the sum sued for by the plaintiff in error was alleged in its petition in the District Court at a sum greater than $1000, fraudulently and for the purpose of giving to the Supreme Court jurisdiction of the case upon writ of error. The attorney for Ellis County who prepared and filed the petition in the District Court and has prosecuted the case since, filed in this court an answer to the motion and plea in which the allegations of fraud are specifically denied. The affidavits presented by the defendant in error to sustain his motion do not evidence any intent on the part of Ellis County or its counsel to fraudulently give jurisdiction to this court of the suit then instituted. They simply establish a state of facts from which the counsel for Ellis County, if he had considered them in the light they are presented here, might have determined that his client was not entitled to recover as much as the sum he sued for; but these facts do not tend to establish the proposition that there was a fraudulent intent in putting the sum over $1000. The plea and motion are therefore overruled.
The contention in this case arises over the construction of the following language employed in the act of the Legislature approved June 16, 1897, known as the fee bill, as amended by an act approved June 19, 1897:
"Sec. 10. That hereafter the maximum amount of fees of all kinds that may be retained by any officer mentioned in this section as compensation for services shall be as follows: * * * In counties in which there were cast at the last presidential election as many as 7500 votes, * * * clerk of the county court, an amount not exceeding $2500 per annum; * * * in addition thereto, one-fourth of the excess of the fees collected by [him] the officers respectively." Batts' Digest, art. 2495c.
"Sec. 11. The amounts allowed to each officer mentioned in section 10 of this act may be retained out of the fees collected by him under existing laws, but in no case shall the State or the county be responsible for the payment of any sum when the fees collected by any officer are less than the maximum compensation allowed by this act, or be responsible for the pay of any deputy or assistant. Each officer mentioned in the preceding section, and also the sheriff, shall, at the close of each fiscal year, make to the district court of the county in which he resides a sworn statement, showing the amount of fees collected by him during *Page 27 the fiscal year and the amount of fees charged and not collected, and by whom due, and the number of deputies and assistants employed by him during the year, and the amount paid or to be paid each; and all fees collected by officers named in section 10 of this act during the fiscal year in excess of the maximum amount allowed, and of the one-fourth of the excess of the maximum allowed for their services, and for the services of their deputies or assistants hereinafter provided for, shall be paid to the county treasurer of the county where the excess accrued." Section 12 provides that when any officer desires deputies or assistants in the performance of his duties, he shall make application to the county judge for authority to make such appointments, stating the number required and showing the necessity for their appointment. When the county judge has given the authority, the officers may appoint them with salaries not to exceed, to the first assistant, $1200 per annum, and to all others, not to exceed $900 per annum; and it is provided that "the amount to be paid each and the compensation allowed shall be paid out of the fees of office to which said deputies or assistants may be appointed, and shall not be included in estimating the maximum salaries of officers named in section 10 of this act."
The defendant in error contends that under this statute he was entitled to retain in his possession one-fourth of all the fees collected by him in excess of $2500, and this view of the law was adopted by the trial court and the Court of Civil Appeals; that is, from the whole sum collected $2500 was deducted, and then the one-fourth of the remaining sum was deducted as the compensation of the clerk. The plaintiff in error insists that the $2500 maximum salary provided for the clerk by law and the $4151.59 paid for the service of deputies, should have been first deducted and the excess of fees collected should have been divided, one-fourth to the defendant in error and three-fourths to Ellis County.
The law made it the duty of Thompson, as county clerk of Ellis County, at the end of the financial year, to make a report showing the total amount of fees collected by him and the sum paid to his deputies, which would furnish all the data necessary for a settlement with the county. Article 2495d prescribes the rule by which the contention in this case may be decided, and its proper application to the facts can be best illustrated by stating the account between Thompson and Ellis County as the statute directs. Thompson should be charged with the fees collected during the year, $7348.24, and should be credited with $2500, the "maximum amount allowed for his services," and with the amount paid to deputies, $4151.59, aggregating $6651.59; which, being deducted from the whole amount of costs collected, leaves $696.65, the excess "of the maximum amount allowed for his services and for the services of his deputies." He is entitled to credit for $174.16, the one-fourth of the last named amount, which makes $6825.75, the total credits. The difference between the credits and the sum collected, $522.49, is the excess of the collection over all lawful *Page 28 credits and should have been paid into the county treasury. This solution fulfills every requirement of the law and is in harmony with the scheme inaugurated by the statute.
The defendant in error claims that the language "the maximum amount of fees of all kinds that may be retained by any officer mentioned in this article as compensation for services shall be as follows," includes the $2500 and the "one-fourth of the excess of fees collected by said officers;" and that the phrase "maximum amount allowed for his services," when used in the statute, means the specified sum and the one-fourth of the excess of the fees collected. It is contended that this construction is supported by article 2495e (Batts' Digest), which provides that the fees paid deputies "shall not be included in estimating the maximum salaries of officers named in section 10 of this act," but we think that the Legislature intended to express that the pay of deputies should not be deducted from the specified maximum salary. All doubt as to the proper construction of the language used in article 2495c is certainly removed by article 2495d, which authorized Thompson to retain out of the fees collected by him the amounts allowed by the preceding section, which is defined by the language "in excess of the maximum amount allowed and of the one-fourth of the excess of the maximum amount allowed for their services and for the services of their deputies." This clearly expresses two "excess" amounts to be ascertained; first, that sum which is in "excess" of the maximum amount allowed, and second, the "excess" over and above the maximum allowed to the officer and the sum paid to his deputies. The maximum amount allowed the clerk $2500 and $4151.59 paid to the deputies must be deducted to arrive at the "excess" of fees collected, of which Thompson was entitled to retain one-fourth. The "one-fourth of the excess" could not be a part of "the maximum amount allowed," and at the same time be part of the remainder after deducting the maximum and another sum. This language defines the term "maximum" to mean the specified sum, $2500, and the phrase "the excess of the fees collected by the said officers" signifies that sum which remains after taking from the whole the maximum and the amount paid to the deputies.
The District Court and the Court of Civil Appeals erred in their construction of the statute and the judgment entered against Ellis County and the said judgments are hereby reversed and judgment is entered against the defendant in error, T.F. Thompson, in favor of Ellis County for the sum of $522.49, with 6 per cent interest thereon from the 23d day of November, 1898, together with all costs accruing in all of the courts.
ON MOTION FOR REHEARING.