Jernigan v. Finley

• Decision Date: 23 November 1896
• Citation: 38 S.W. 24
• Parties: JERNIGAN, County Treasurer, v. FINLEY, Comptroller.
• Court: Texas Supreme Court

38 S.W. 24

JERNIGAN, County Treasurer, v. FINLEY, Comptroller.

Supreme Court of Texas.

November 23, 1896.

Petition by A. J. Jernigan, county treasurer, for a writ of mandamus to R. W. Finley, state comptroller. Granted.

W. W. Moore, Geo. Calhoun, and Geo. W. Allen, for petitioner. M. M. Crane, Atty. Gen., for respondent.

GAINES, C. J.

This is an original proceeding for a writ of mandamus, instituted by the petitioner, as county treasurer of Travis county, against the respondent, as comptroller of the state of Texas, to compel the latter to issue his warrant as comptroller upon the state treasurer in favor of petitioner, in his official capacity, for the sum of $277.85; that being a part of the amount set apart to Travis county by the state board of education, as its portion of the available school fund for the scholastic year beginning September 1, 1895. The petition alleges, in substance, that the board of public education, as was its duty to do, on or before the 1st day of August, 1895, made an apportionment of the available school fund of the state for the scholastic year beginning September 1, 1895, and ending August 31, 1896; that, in said apportionment, the sum of $20,086.50 was set apart to Travis county; and that thereupon the superintendent of public instruction issued to the petitioner, as county treasurer of Travis county, a certificate of the sum so apportioned, with coupons attached, as required by law; but that, after payment of four of such coupons, the state treasurer, from funds in his hands for that purpose, set apart the sum of $277.85 to be paid to Travis county upon its coupon No. 5; and that the respondent had refused, upon demand, to issue his warrant for the sum so set apart. The respondent has demurred to the petition, claiming (1) that the court has no jurisdiction to issue a writ of mandamus against him as comptroller; (2) that this is a suit against the state, and cannot be maintained; and (3) that the plaintiff, as county treasurer, has no authority to bring the suit. After a general denial (which, in a case of this character, is of no effect, under our decisions), the respondent answered specially that Travis county is indebted to the state upon certain bonds, bearing interest, payable annually, amounting in the aggregate to the sum of $104,000, principal, which bonds had been issued by the proper officers of the county, and had been purchased by the state for the benefit of the school fund; that the county had made default in the payment of the interest on such bonds; and that, therefore, it was not entitled to draw any money from the state treasury until its indebtedness was discharged. The petitioner interposed a demurrer to this answer. None of the grounds of the demurrer to the petition can be sustained.

1. That the court has the power to issue a writ of mandamus against the comptroller or other head of department of the state government has been repeatedly decided. Thomson v. Baker (opinion this day delivered) 38 S. W. 21.

2. The statutes make it the duty of the state treasurer, on the 1st day of each month, to "set apart to each county, city or town such a portion of the available free school fund as has come into his hands during the preceding month, as is shown by the certificates held by them to be due to each, upon a pro rata distribution thereof, and he shall notify each local treasurer of the school fund, through the state superintendent of public instruction, of the amount which can be paid on the remaining coupons, until the whole amount of apportionment to each county or independent school district has been paid," and also provide that "said money so set apart shall not be used by the state treasurer for any purpose other than to pay the warrant drawn by the state comptroller upon presentation of such coupons." Rev. St. 1895, art. 3926a. Articles 3924 and 3924a also direct that "the comptroller shall keep a separate account of the available school fund arising from every source. He shall draw his warrant in favor of the treasurer of the school fund of each county, city or town that has control of its public schools, in such sum as each is entitled to upon a pro rata distribution of the available school fund in the hands of the state treasurer, upon the presentation to him of a coupon properly filled out, and receipted by the said local treasurer"; and that "the comptroller shall, at the time the certificates of apportionment are issued, advise the county treasurer of each county of the amount which the county tax collector of his county is authorized to pay on coupon No. 1 to the said county treasurer for the available school fund for the ensuing school year." Therefore, when the board of education has made the apportionment, and the certificate has been issued, notifying the county treasurer of the sum apportioned to his county, and when, on the 1st day of each month, the state treasurer has made a pro rata distribution of the funds that have come to his hands during the preceding month, and notified, through the superintendent of public instruction, the county treasurer of the amount set apart to his county, and the county treasurer has presented to the comptroller a coupon properly filled out, and receipted by said local treasurer, it becomes the plain duty of the comptroller to draw his warrant for the sum so apportioned. It is an imperative obligation, enjoined upon him by the lawmaking power of the state. In pursuance of the power conferred upon it by amended section 3 of article 5 of the constitution, the legislature has given this court jurisdiction to issue the writ of mandamus against any state officer, the governor excepted; that is, it has authorized a suit against any such officer to compel him to perform the duties imposed upon him by law. It can hardly be said that such a suit is one against the state; but, if it be such in any sense, it is, nevertheless, proper and...