# Brown v. City of Amarillo > Court of Appeals of Texas · November 6, 1915 · 180 S.W. 654 URL: https://www.frixlaw.com/law-library/cases/3945887 ## Case - **Full name:** BROWN Et Al. v. CITY OF AMARILLO - **Court:** Court of Appeals of Texas - **Decided:** November 6, 1915 - **Citations:** 180 S.W. 654; 1915 Tex. App. LEXIS 1079 - **Precedential status:** Published - **Opinion:** Addendum by Hendricks - **Judges:** Hendricks, Huff - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3945887 ## Opinion text On Motion for Rehearing. HENDRICKS, J. [13] The appellants, Brown and the sureties upon his official bond as city treasurer, are insistent, upon their motions for rehearing, for an executive interpretation of the meaning of the resolution fixing the salary and fees as emoluments of his office, as an essential element in this case, and that they should have been permitted to have gone to the jury, by virtue of their pleadings, upon that question. Referring again to section 12 of Ordinance No. 2, as amended, exhibited in the preliminary part of the original opinion, the same provides a compensation to the city secretary, for performing the duties of city treasurer, upon a commission basis, at different rates, on account of different funds, as prescribed in said ordinance. The closing sentence of said ordinance is: “ * * * But the city secretary acting as treasurer, shall not be entitled to any commissions for receiving any moneys from his predecessor, nor for paying over same to his successor.” This ordinance clearly exhibits at least the duality of performance by the city secretary of the duties of the city treasurer. The resolution passed December 31, 1909, providing that “the salary of the city secretary and treasurer, for the ensuing term be fixed at $10.00 per month and fees, as set by ordinance, up to $2,000.00 per annum, any amount exceeding $2,000.00 to be paid into the city treasury,” evidently refers to amended section 12, of Ordinance No. 2, above mentioned. There is no other ordinance disclosed in this record, setting up any fees for this officer acting in a dual capacity. Amended section 12, of said ordinance, is unlimited in its nature as to the particular commissions applied to the separate funds, for which he was to receive compensation. The resolution of 1909, in connection with said amended ordinance, clearly and unambiguously means that the fees, as set by that ordinance, according to the compensation upon a commission basis, shall not exceed a certain amount. If upon the basis of 2]4 per cent, as applied to certain funds, and 1% per cent and one-half of 1 per cent, as applied to other funds, the commissions, in connection with the other fees of his office, did not amount t.o as much as the maximum prescribed by the resolution, Brown was entitled to the same; but if, all combined, it was exceeded, the fees and commissions belonged to the city. In other words, the commissions mentioned in the ordinance in connection with the language “fees as set by ordinance” are comprehended within the term “fees,” which it may be, in connection with other fees, as an officer, would be the source of his revenue, not to exceed, however, as city secretary and treasurer, the amount of the resolution. If there are other ordinances which prescribe and designate fees referable to his position as city secretary, che «ame are not shown in the record; if they were so exhibited, we do not think it would militate against the construction. Brown has to refer to amended section 12 of Ordinance No. 2 to obtain a rate for his compensation, in so far as his revenue derivable from the collection and payment of moneys is concerned, and the resolution evidently refers to the *660 same ordinance for his “fees as set by ordinance” for the same rate, as applied to commissions. There is no ambiguity. [14] A great deal is said in the argument of the appellants’ sureties, on their motion for rehearing, that no breach of the treasurer’s bond is shown. We wholly disagree with that contention. The pleading is clear in stating that Brown in receiving and retaining an excessive amount over the maximum prescribed by the resolution of 1909, and the failure to pay over the same, constitutes a breach of the bond as treasurer, when read ns a whole. This resolution prescribed the •amount that he was to receive as city secretary and city treasurer. If Brown, as. city treasurer, when he received the moneys of the city permitted Brown, as city secretary, to also receive and retain an excessive amount prescribed by law, the treasurer is certainly liable, and his bondsmen likewise. In order for Brown, as secretary, to receive .and retain this money, he necessarily received and retained it from Brown as city treasurer, and the city treasurer had no lawful justification for permitting it under the authorities. Both motions are overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3945887. Public record. Not legal advice.