Broad v. City of Paris

• Decision Date: 23 April 1886
• Citation: 18 S.W. 342
• Parties: BROAD <I>et al.</I> v. CITY OF PARIS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

18 S.W. 342

BROAD et al. v. CITY OF PARIS.¹

Supreme Court of Texas.

April 23, 1886.

Cross-appeals from district court, Lamar county; R. R. GAINES, Judge.

Action by the city of Paris against T. Broad and others, as sureties on the official bond of J. E. Roberts, treasurer of the city, alleged to have defaulted in the sum of $2,757.28. Defendants pleaded that the defalcation was out of the school fund, for which the sureties on the general bond were not liable. Judgment for plaintiff for $747.06. Both parties appeal. Reversed.

Maxey, Lightfoot & Denton, for plaintiff. V. W. Hale and Joe Ballinger, for defendants.

ROBERTSON, J.

The bond in suit is conditioned as prescribed by law for the security of the general revenues of the city. Article 365, Rev. St. Its terms are broad enough to cover the treasurer's defalcation as custodian of the school fund. It is claimed, however, that its scope is limited by the statute, which authorizes the city to assume control of the free schools. The law conferring this authority is contained in chapter 3, tit. 78, Rev. St. It is there provided that the treasurers of cities having the management of the schools shall have the same powers and perform the same duties as are herein prescribed for county treasurers, so far as the same are applicable. Article 3791. A subdivision of the same chapter (articles 3725-3732, inclusive) is entitled "Duties of the county treasurer pertaining to the school fund." Instead of repeating so much of this subdivision as could be applied to city treasurers, these articles, as far as applicable, are referred to as defining the powers and duties of city treasurers. The only one of these articles prescribing a duty, eo nomine, is 3728, in this language: "Within twenty days after the receipt of his certificate of election, it shall be the duty of the county treasurer to execute a bond, with two or more good and sufficient sureties, for the faithful performance of his duties under this chapter." The next article prescribes the conditions and the means of fixing the amount of the bond. There can be no difficulty in applying these directions to the city treasurer. The bond required is in addition to the general official bond, and it is the special security required for the custody and disbursement of the special fund intrusted to the treasurer by this chapter. It is contended that giving this bond is not a "duty," within the meaning of the word as used in article 3791. The usual scope of the...