Orndorff v. State

• Decision Date: 01 July 1937
• Docket Number: No. 3631.,3631.
• Citation: 108 S.W.2d 206
• Parties: ORNDORFF v. STATE ex rel. McGILL et al.
• Court: Texas Court of Appeals

108 S.W.2d 206

ORNDORFF v. STATE ex rel. McGILL et al.

No. 3631.

Court of Civil Appeals of Texas. El Paso.

July 1, 1937.

Rehearing Denied August 12, 1937.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, El Paso County; P. R. Price, Judge.

Quo warranto proceeding by the State, on the relation of Joseph McGill, County Judge of El Paso County, and others, against Seth B. Orndorff and another. From a judgment ousting defendant Orndorff from the office of county commissioner, he appeals.

Affirmed.

Armstrong & Jaffe, of El Paso, for appellant.

D. E. Mulcahy, Co. Atty., H. L. Sims, Asst. Co. Atty., and S. P. Weisiger, and W. O. Hamilton, all of El Paso, for appellees.

NEALON, Chief Justice.

The State of Texas, by David E. Mulcahy, county attorney of El Paso county, Tex., on the relation of Joseph McGill, county judge of said county, joined by W. W. Hawkins, L. J. Ivey, and J. L. Andreas, county commissioners, on January 9, 1937, instituted a quo warranto proceeding against Seth B. Orndorff and Shanks Carpenter, each of whom claimed to be the duly qualified county commissioner from precinct No. 2 of El Paso county. Defendant Orndorff had received the largest number of votes cast for commissioner of said precinct at the election held in November, 1936. On January 1, 1937, he took his oath of office and filed his official bond, which had theretofore been approved by the commissioners' court, and began acting as commissioner of said precinct. He demanded compensation for his services, but up to the time of trial had received none. Defendant Carpenter likewise claimed the office, upon the ground that he had been elected thereto at the general election in November, 1934, and was entitled to hold over until his successor should be duly qualified; that Seth B. Orndorff was ineligible to the office, and therefore he (Carpenter) was entitled to the rights, privileges, and emoluments thereof.

The trial court held that appellant was ineligible to said office, and rendered judgment ousting him therefrom. It was adjudged that Shanks Carpenter was entitled to the office until such time as his successor should be appointed by the county judge or elected, and should qualify. From this judgment appellant, Orndorff, appealed.

An agreed statement of facts was filed. From this and from the court's findings of fact it appears that during the years 1923, 1924, and 1925 appellant was the duly elected, qualified, and acting sheriff of El Paso county. In his capacity as sheriff he came into possession of large sums of money paid by the United States government for the safekeeping, care and feeding of federal prisoners who had been incarcerated in the El Paso county jail. The county claimed it was his duty to account for and pay to El Paso county the profits thus arising as excess fees of office. Appellant contested the county's right to said profits, and on May 27, 1926, the district court rendered judgment against him for $67,186.83. The case was brought to this court by appellant by writ of error, on cost bond, and this court, following Binford, Sheriff, v. Harris County, 261 S.W. 535 (writ refused), affirmed the judgment of the trial court. October 26, 1927, the Supreme Court of Texas refused Orndorff's application for writ of error, and early in 1928 the Supreme Court of the United States denied his petition for certiorari. Orndorff v. El Paso County, 276 U.S. 633, 48 S.Ct. 339, 72 L.Ed. 742. The sureties upon his various bonds paid according to their respective liabilities, leaving a balance due El Paso county, which, with interest, on December 31, 1936, amounted to $56,966.13.

Subsequent to the rendition of said judgment appellant filed a voluntary petition in bankruptcy, scheduling said judgment among his liabilities. He was in due time adjudged bankrupt. On September 28, 1935, an order was entered granting him a discharge in bankruptcy. The county had notice of the bankruptcy proceedings.

Appellant has failed to account for and pay said money to El Paso county or any officer or representative of said county, and has obtained no discharge therefor.

Appellee Shanks Carpenter filed a brief in which he prayed that the judgment of the trial court be affirmed.

Opinion.

Appellees urge a motion to dismiss upon the ground that under rule 7 for the Courts of Civil Appeals, promulgated by the Supreme Court October 8, 1892, the transcript should have been filed within 20 days after appeal was perfected. The transcript was filed in this case 58 days after judgment was rendered. The motion is overruled. Appeals in quo warranto proceedings are governed by article 6256, Revised Statutes 1925, which is a codification of a statute passed and approved in 1921, which supersedes the rule of court in so far as there is a conflict. Stillman v. Hirsch (Tex.Sup.) 99 S.W.(2d) 270; Brown v. Hooks, 117 Tex. 155, 299 S.W. 228; Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822; State v. Scranton Independent School Dist. (Tex. Com.App.) 285 S.W. 601.

Appellant urges the reversal of the district court's judgment upon the following grounds: That the court erred in holding (1) that the office of county commissioner is within the meaning of article 3, section 20, of the State Constitution; (2) that moneys collected for feeding federal prisoners is public money within the meaning of said provision; (3) that a sheriff is a person "otherwise entrusted with public monies" within the meaning of said section; (4) that the judgment was not barred by the ten-year statute of limitation; (5) that a dormant judgment in a collateral proceeding is evidence of the existence of a debt; (6) that the debt was not discharged by appellant's discharge in bankruptcy.

Section 20 of article 3 of the State Constitution reads as follows: "No person who at any time may have been a collector of taxes, or who may have been otherwise entrusted with public money, shall be eligible to the Legislature, or to any office of profit or trust under the State Government, until he shall have obtained a discharge for the amount of such collections, or for all public moneys with which he may have been entrusted."

Is the office of county commissioner one of profit or trust "under the State Government?" In attempting to answer this question correctly we consider how the office comes into being, the relation of the county to the State, the functions of the commissioners' court and of its members, and these especially with relation to the affairs of the State.

In construing provisions of the Constitution, it must be presumed that the language was carefully selected and made to express the will of the people (Mellinger v. Houston, 68 Tex. 37, 3 S.W. 249; San Antonio v. Berry, 92 Tex. 319, 48 S.W. 496); that words are used in their natural sense (Stockton v. Montgomery, Dallam, Dig. 473; Morton v. Gordon, Dallam, Dig. 396); that as a rule the voters are unlearned in the law, and the construction of the language by the courts should be as the voters at the time of its adoption would reasonably have understood it to be (Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052); "the obvious common sense meaning of the terms, is the one in which they should be understood" (Republic v. Skidmore, 2 Tex. 261); when the meaning is doubtful, that interpretation should be adopted which seems best calculated to promote the public interest, upon the theory that its framers so intended (State v. DeGress, 72 Tex. 242, 11 S.W. 1029).

Bearing in mind these rules, we seek a correct answer to the question just propounded: Is a county commissioner an officer "under the Government of the State?" While it is true that the courts have held that various officers whose spheres of activity are limited to the counties of their residence are not officers "of" the State within the meaning of certain statutes clearly intended to apply only to certain named officers and others whose jurisdiction or field of action is state-wide, it must be borne in mind that there is a marked difference between the meaning of the phrases "under the State Government" and "of the State" or "of the State Government." Counties "are created by the state for the purposes of government. Their functions are political and administrative, and the powers conferred upon them are rather duties imposed than privileges granted." Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562, 31 Am.St.Rep. 63. This language, quoted from an opinion by Judge Gaines, places counties in a subordinate position, and, therefore, "under the State Government" performing duties imposed by the State. Necessarily, therefore, the members of the commissioners' court, the body charged with the performance of the duties imposed from above, are officers under that superior government which imposes the duties and holds the commissioners responsible for their performance.

The commissioners' court is the creature of the Constitution which provides (article 5, § 1) that "the judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law." By section 18 of article 8 of the Constitution the county commissioners' court is constituted a board of equalization, charged with the duty of equalizing, as near as may be, the valuation of all property subject to or rendered for taxation — thus making the State dependent upon the action of the various commissioners' courts for the amount of ad valorem taxes it shall receive. The Constitution fixes the number of commissioners to be elected in each county, as well as their tenure of office. It charges them with the duty of providing courthouses in which the courts of the state shall convene and jails in which offenders against its laws shall be confined. It confides to the Legislature authority to fix the compensation of the commissioners and to...