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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?ⅇ 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
BY