Poole v. Burnet County

• Decision Date: 26 October 1903
• Citation: Poole v. Burnet County, 76 S.W. 425, 97 Tex. 77 (Tex. 1903)
• Parties: POOLE et al. v. BURNET COUNTY.
• Court: Texas Supreme Court

Page 425

76 S.W. 425

POOLE et al. v. BURNET COUNTY.

Supreme Court of Texas.

October 26, 1903.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by Burnet county against R. J. Poole and others. From a judgment for plaintiff, the defendants appealed to the Court of Civil Appeals, which certifies questions to the Supreme Court.

Matthews & Browning, for appellants. Ike D. White, T. E. Hammond, and Dayton Moses, for appellee.

BROWN, J.

This is a certified question from the Court of Civil Appeals for the Third Supreme Judicial District. The statement and questions are as follows:

"At the general election in 1900, R. J. Poole was elected county treasurer of Burnet county, Texas. On November 27, 1900, he executed his bond to the county judge of said county in the sum of $25,000, conditioned that he would safely keep and faithfully disburse the school fund of Burnet county according to law. The sureties upon this bond were W. H. Boggess, J. P. Barton, B. H. Stewart, W. J. Powell, Wm. Russell, J. H. Bryson, N. L. Ater, J. W. Wilkerson, and T. B. Baughan. This bond was properly approved by the county judge of said county December 3, 1900. On May 12, 1902, said R. J. Poole, as treasurer of said county, should have had in his hands a balance belonging to the school fund of said county amounting to $6,234.02. The commissioners' court of said county on said date, having ascertained from the reports of said treasurer that said amount should have been in his hands, belonging to said fund, thereupon called on the said R. J. Poole to produce the money which he had actually on hand belonging to said fund, and said Poole then produced only $514.04, and the reason that he could not produce the remainder of said money was that he had deposited the same in the Bank of W. H. Westfall & Co., which bank had become insolvent; and said treasurer, when called upon to produce said money by said commissioners' court, failed to produce more than $514.04, and he was then, and up to the time of the trial, unable, for the reasons above stated, to produce the balance. The defendants pleaded, in substance, that said funds were lost without the negligence of said Poole; that the bank in which said funds were deposited was generally regarded as a solvent institution, and that for many years it had been the custom of the treasurer of said county, with the knowledge of the county and its officers, to deposit the funds of said county in said bank; that the county had failed to furnish said treasurer with a safe or vault in which he could place and safely keep said funds, and that said Poole used due diligence and care to safely keep said funds; and that the loss thereof by the failure of said bank was not due to any negligence on the part of said Poole. Exceptions were sustained to this portion of the answer. Said Poole at the time of the trial of this cause was still the county treasurer of said county, and there is no evidence that he had failed to pay any warrant drawn against said fund, and, being still in office, no occasion has ever arisen for him to pay the balance of said funds to his successor in office, so that the only evidence of a breach of said bond was the facts hereinbefore stated. Judgment was rendered against Poole and the sureties upon his bond for such amount of said school fund as he failed to produce.

"Upon the foregoing statement and findings of fact, the Court of Civil Appeals of the Third Supreme Judicial District certifies to the Supreme Court of Texas the following questions:

"(1) Is the school fund one of the funds embraced in the provisions of Rev. St. 1895, art. 867, which are required to be counted by the commissioners' court?

"(2) If said article 867 applies to the school fund of the county, does said article change the liability of the county treasurer to the county from that of debtor, as fixed by the decisions of our Supreme Court in the cases of Boggs v. State, 46 Tex. 10, and Wilson v. Wichita County, 67 Tex. 647 [4 S. W. 67], to that of bailee for hire?

"(3) If said article 867 applies to the school fund of the county, does a failure of the treasurer to produce the fund upon demand, in order that it may be counted by the commissioners' court, and the inability of the treasurer to produce said funds, under the circumstances, and by reason of the facts above stated, constitute a breach of the bond prescribed by Rev. St. 1895, art. 921, so as to authorize the county to sue for such amount as said treasurer fails to produce?

"(4) Whether said article applies to the school fund or not, did said facts constitute a breach of said treasurer's bond, which would entitle the county to sue and recover thereon the balance of said funds which said treasurer was unable to produce and failed to produce, as aforesaid?"

We answer the first question in the affirmative. The duty of the treasurer of the county to make reports to the county commissioners is prescribed by the following article of the Revised Statutes of 1895 (article 928): "The county treasurer shall render a detailed report at every regular term of the commissioners' court of his county of all the moneys received and disbursed by him, and all debts due to and from his county, and of all other proceedings in his office, and shall exhibit to said court at every such term all his books and accounts for their inspection and all vouchers relating to the same, to be audited and allowed." The language "all moneys received and disbursed by him" is broad enough to include the available school fund which the treasurer had received either from the state or from the county. There is no other expression of the Legislature which tends to limit the meaning of the language used in article 928. On the contrary, other provisions of the statute are in harmony with this construction. By article 921. Rev. St. 1895, the county treasurer is required to give, in addition to his general bond, a bond for the school fund, "payable to the county judge of such county, with two good and sufficient sureties, to be approved by such county judge, for a sum double the amount of such school fund, to be estimated by such county judge, conditioned that he will safely keep and faithfully disburse the school fund according to law," etc. The bond being payable to and to be approved by the county judge of the county, indicates that the school fund is under the control and supervision of the county authorities. This view of the statute was expressed in the case of Kempner v. County of Galveston, 73 Tex. 231, 11 S. W. 193, in the following language: "On the other hand, the county judge is given a supervision over the public schools...