Standley v. Aldine Independent School Dist.
| Decision Date | 10 June 1954 |
| Docket Number | No. 3186,3186 |
| Citation | 271 S.W.2d 132 |
| Court | Texas Court of Appeals |
| Parties | L. B. STANDLEY, Appellant, v. ALDINE INDEPENDENT SCHOOL DISTRICT, Appellee. |
Robert L. Sonfield, Houston, for appellant.
Painter & Painter, Houston, for appellee.
This is a suit for salary by a former Tax Assessor-Collector of an Independent School District against the School District. Parties will be referred to as in the Trial Court.
Plaintiff was appointed Assessor and Collector of Taxes for the School District by resolution of the Board of Trustees which recited that the appointment was for one year beginning 1 February 1950. Plaintiff posted $10,000 bond, which amount was fixed by the Board of Trustees, took the oath of office and entered upon the duties of the office, and continued to perform such duties until 30 June 1951. On 27 March 1951 the Board of Trustees adopted a resolution that Plaintiff's 'contract' be extended one year beginning 1 February 1951 at a monthly salary of $425. On 30 June 1951 as plaintiff attempted to enter the office occupied by him as Assessor and Collector of Taxes, he was forcibly prevented from entering by two members of the Board of Trustees, who informed him that by resolution adopted 29 June 1951 he was 'fired'. He was prevented from thereafter performing the duties of such office, although he remained ready to perform them; was paid his salary though 30 June 1951, but has received no pay for the remaining 7 months of his term. The Board thereafter on 23 July 1952 appointed one Burmeister to serve as Assessor-Collector and has paid him $425 per month since.
Plaintiff contends that while it is not necessary for him to have exhausted his remedy through the School System, that as a matter of precaution he appealed to the Commissioner of Education, who by written opinion, held in substance that a Tax Assessor-Collector of a School District is a public officer rather than an employee of the District; that the term of such office is two years by operation of law; that as such he was subject to removal by the District Court and the Board had no power to remove him; but that he could not recover the seven months salary since he failed to establish that funds were available with which to pay such 'debt'.
Motion for Rehearing was granted by the Commissioner, but by written opinion adhered to the original determination. Appeal was made to the State Board of Education, who affirmed the opinion of the Commissioner.
Suit was then filed in the District Court where trial was before the court without a jury. Judgment was rendered for defendant and plaintiff appealed. Plaintiff requested filing of Findings of Fact and Conclusions of Law, which were filed. Plaintiff thereupon requested further Findings and Conclusions, which were by the Trial Court, except in 1 instance, refused. The Trial Court's Findings of Fact are substantially set out hereinabove while the Conclusions of Law are to the effect that the plaintiff's rights stem from his 'contract' with the Board of Trustees; that in order to recover on a contract against an Independent School District it must be alleged and proved that funds were on hand and available at the time of the contract; and that funds of other school years shall not be used to pay indebtedness created by contract purporting to extend into another scholastic year.
Plaintiff appeals to this court on 33 Points, but which present the following basic contentions: (1) That the office of Tax Assessor-Collector of an Independent School District is a public office of emolument; (2) that the term for same not being prescribed in the law creating it, was two years; (3) that as a public officer he was subject to removal only by the District Court in the manner prescribed by law; (4) that he was entitled to the compensation or emoluments of his office without the necessity of establishing the availability of funds.
Plaintiff's 1st contention is that the office of Tax Assessor-Collector of an Independent School District is a public office, and the holder thereof is a public officer.
Article 2791, R.C.S.Vernon's Ann.Civ.St. art. 2791, provides:
The duties of an Assessor and Collector of Taxes of an Independent School District are many and varied, and are found in Chapter 5 of Title 28, art. 1026 et seq., and in Title 122, art. 7041 et seq., of our Statutes. Neither the Board of Trustees nor any other officer of the School District is given any supervisory control or authority. All duties are derived from the law itself and not by contract.
The Assessor and Collector of Taxes of an Independent School District is a public officer and the office is one of emolument. Dupuy v. State, 132 Tex.Cr.R. 539, 106 S.W.2d 287; Dupuy v. State, 135 Tex.Cr.App. 595, 121 S.W.2d 1003; Knox v. Johnson, Tex.Civ.App., 141 S.W.2d 698, (er. ref.); Pruitt v. Glen Rose Ind. Sch. Dist., 126 Tex. 45, 84 S.W.2d 1004, 100 A.L.R. 1158; Odem v. Sinton Ind. Sch. Dist., Tex.Com.App., 234 S.W. 1090; Blewett v. Richardson Ind. Sch. Dist., Tex.Com.App., 240 S.W. 529; Dorenfield v. State, 123 Tex. 467, 73 S.W.2d 83.
Defendant School District contends that since estimated taxes was approximately $100,000, and since the bond filed was only $10,000, and not in the amount fixed by Article 2791, that plaintiff was not a de jure officer, but only a de facto officer. A defect in the bond of a public officer is not sufficient to constitute him a de facto officer. The execution of a proper bond is not a condition precedent to the right to the office. Any objection to the bond of a public officer must be urged and the official given opportunity to cure the defect. State ex rel. Bickford v. Cocke, 54 Tex. 482; City of Houston v. Estes, 35 Tex.Civ.App. 99, 79 S.W. 848 (er. ref.). Further, Article 16, Sec. 1 of the State Constitution, Vernon's Ann.St., requires public officers 'before they enter upon the duties of their offices' to take the 'oath', but there is no constitutional or statutory provision with respect to the execution of the requisite bond 'before they enter upon the duties of their offices'.
Plaintiff's 2nd contention is that the term for a Tax Assessor-Collector of an Independent School District not being prescribed by law, is for 2 years.
We believe that plaintiff was a public officer. Article 16, Sec. 30 of the State Constitution provides that 'the duration of all offices not fixed by this Constitution shall never exceed two years'. Our courts have consistently held that where the term of office is not prescribed by the Constitution or the law creating it, that the term is 2 years. City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S.W. 735; City of Houston v. Estes, 35 Tex.Civ.App. 99, 79 S.W. 848 er. ref.; City of Paris v. Cabiness, 44 Tex.Civ.App. 587, 98 S.W. 925; Callaghan v. McGown, Tex.Civ.App., 90 S.W. 319, 322, er. ref.
We therefore conclude that plaintiff when appointed was entitled to hold office for two years, unless properly removed....
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Aldine Independent School Dist. v. Standley
...and awarded a mandamus requiring the defendant 'to perform all necessary acts for the payment of the judgment here rendered.' 271 S.W.2d 132, 137. In this we think the Court of Civil Appeals was in Plaintiff-respondent claims that he is an officer under the provisions of Article XVI, Sectio......