Odem v. Sinton Independent School Dist.

• Citation: 234 S.W. 1090
• Decision Date: 30 November 1921
• Docket Number: (No. 257-3468.)
• Parties: ODEM v. SINTON INDEPENDENT SCHOOL DIST.
• Court: Supreme Court of Texas

Page 1090

234 S.W. 1090

ODEM v. SINTON INDEPENDENT SCHOOL DIST.

(No. 257-3468.)

Commission of Appeals of Texas, Section A.

November 30, 1921.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by D. Odem against the Sinton Independent School District to enjoin the collection of a school tax. The judgment for defendant was affirmed by the Court of Civil Appeals (218 S. W. 106), and plaintiff brings error. Reversed, and judgment rendered for plaintiff.

Proctor, Vandenberge, Crain & Mitchell, of Victoria, and J. G. Cook, of Sinton, for plaintiff in error.

G. R. Scott and Boone & Pope, all of Corpus Christi, and J. C. Houts, of Sinton, for defendant in error.

TAYLOR, P. J.

The Sinton independent school district was created by special act of the Legislature. Laws Regular Session 35th Leg. p. 151. The act, in addition to creating the district, prescribes the officers thereof and their duties, and provides for the assessment of taxes, their levy and collection. Section 9 of the act provides that the school board shall choose an assessor and collector of taxes for the district. Section 10 requires such officer to give bond, payable to the president of the board, conditioned for the faithful performance of duty.

The school board selected G. L. Cellum to assess and collect the taxes for the district. Cellum was at the time of his selection the city assessor and collector of taxes of Sinton, a town situated in the district. Both offices were offices of emolument. The minutes of the school board disclose that the board met on July 16, 1918, and instructed the president to see whom they could get to assess and collect the taxes, and at what per cent.; that on August 6th G. L. Cellum was employed "to assess and collect taxes at a per cent. to be agreed upon, not to go beyond four per cent."

Cellum testified as follows concerning his acceptance of the district office:

"I accepted from these trustees the appointment to the office of district assessor and collector under that order, but I did not know that I could not hold both offices, as they were both appointive, and I took them with the intention of assessing and collecting the school tax. Yes, sir; I took it with the intention of assuming that position. As to why it was I delayed making that bond until after I was through assessing, well, I did not really know I had to have the bond to do the assessing, but did know that I had to have it to do the collecting.

"Q. Then you accepted the position of assessor, if either? A. That is right. No; both, until the Attorney General ruled different."

Cellum testified that he commenced work on the rendition sheets in July; that he did not give bond as assessor and collector, and did not take the oath of office; that he had the county attorney write the Attorney General of the state for a ruling on the question of whether he could hold the position of tax assessor and collector of the school district, and at the same time that of assessor and collector for the town of Sinton; that the Attorney General ruled he could not hold both offices at the same time, and that thereupon (along in September) he told Mr. Lewis, chairman of the board, he would have to resign his position as school district assessor and collector because he could not hold both offices. Cellum testified concerning his failure to take the prescribed oath and give the required bond as follows:

"Yes, sir; at that time (June, 1918) I knew that to become a public officer it was necessary to take the oath of office. I already held a public office at that time. I knew that to collect I would have to give bond, because it was handling money. I never did give bond and never took the oath of this office. * * * It is not a fact that * * * the reason I did not qualify was that feeling that by so doing I might vacate my office of city secretary and collector, and that was not the reason I did not qualify as an officer of the school district. I asked Mr. Russell to find out whether or not I could hold the position, and if I could I would give bond, and, if not, there was no use to make a bond.

"Q. Your position was that you would not take the office if by doing so you would lose the other position you held as city secretary? A. I didn't want to violate the law, if it was against the law to hold the two offices."

The following is a minute of the meeting of September 23, 1918, of the school board:

"The board met in special called session. Moved and seconded that because it was unlawful for G. L. Cellum to act as assessor and collector because of holding other office that his wife be elected to that position. Carried."

O. E. Smith, one of the school trustees, testified as follows:

"As a matter of fact, we took the matter up with the Attorney General. That was the reason he (Cellum) did not give bond and accept the office."

Prior to the election of Mrs. Cellum to act as assessor and collector of the district, Cellum undertook to assess the taxes in the district; and at the time she gave bond and qualified the assessments had been made by him and turned in. In this case the assessment sheets were signed by the person rendering the property. The school board, sitting as a board of equalization, heard complaints of the property owners, including plaintiff in error, concerning the raise in valuation of their respective properties for the purpose of taxation.

This suit was filed by D. Odem to enjoin the school district and its officers from collecting the school tax assessed by Cellum against his property. Injunction was sought on the ground that Cellum was not a legal assessor of the district taxes, and that his entire action with reference to the purported assessment was wholly void. Section 40, art. 16, of the Constitution of Texas was invoked by Odem, which provides that no person shall hold or exercise at the same time more than one civil office of emolument, except certain offices not necessary to mention. The trial judge in upholding Cellum's action as school district assessor made the following finding:

"As a matter of law, I find that G. L. Cellum was a de facto assessor and collector of taxes for the Sinton independent school district for the year 1918; that no legal impediment stood in the way of his becoming the dejure officer, as his qualification by giving the bond and taking the oath would have operated to vacate his office as city secretary, but the fact that he held the office of city...