Watson v. El Paso County

• Decision Date: 09 March 1918
• Docket Number: (No. 799.)
• Citation: 202 S.W. 126
• Parties: WATSON, Tax Collector, et al. v. EL PASO COUNTY.
• Court: Texas Court of Appeals

202 S.W. 126

WATSON, Tax Collector, et al. v. EL PASO COUNTY.

(No. 799.)

Court of Civil Appeals of Texas. El Paso.

March 9, 1918.

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

Action by El Paso County against Will I. Watson, Tax Collector, and others as his sureties. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Frank Judkins, J. F. Woodson, and Thornton Hardie, all of El Paso, for appellants. C. W. Croom and W. H. Fryer, both of El Paso, for appellee.

HIGGINS, J.

At the November election in 1914, Will I. Watson was elected tax collector of El Paso county. He gave the bond required by article 7610, R. S., payable to the county judge and his successors in office, conditioned that he would faithfully perform and discharge all of the duties required of him by law as tax collector. Watson entered upon the discharge of his duties and continued to act as tax collector until July 15, 1916. El Paso county brought this suit against Watson and the sureties upon his bond.

It was alleged that as collector there came into his possession the total sum of $567,728.65, for and on behalf of and for the use and benefit of El Paso county, and that it was his duty to account for said money belonging to El Paso county, and to pay same to the county treasurer; that he had failed to so pay the same except the sum of $539,493.21, and the further sum of $337.33, then on deposit in the Texas Bank & Trust Company and available for the use of El Paso county, leaving the net amount of $27,898.11, which Watson failed and refused to pay to the county treasurer.

A further cause of action was set up in paragraphs 10 to 13, inclusive, of the petition. This cause of action has no relation to that heretofore stated, but relates to the right of Watson to retain certain fees and commissions. Upon trial a peremptory instruction was given to find for the county against Watson and his sureties in the sum of $15,675.19. Verdict was returned and judgment rendered in accordance with this instruction. Watson and his sureties appeal.

The evidence discloses that Watson had collected current and occupation taxes amounting to $563,557.15; costs, $3,481.00; unreported occupations $690.50; making a total of $567,728.60. The evidence further shows that included within the item of $563,557.15 so collected was $37,014.55 for school districts and $3,657.82 for a drainage district. There is no evidence that Watson has not paid to the drainage and school districts the taxes collected for them.

1. The contention is made that the county is not entitled to receive or sue for the taxes collected for school districts. If this be sustained, the judgment rendered cannot be upheld upon the pleadings and evidence presented by the present record. For if the school tax collections be deducted from Watson's total collections, the balance will be $530,714.05, and it was alleged and proven by the county that Watson has paid its treasurer the sum of $539,493.21. It would thus appear under the pleadings that he has already paid more than the county is entitled to.

The record is not clear whether the school districts are independent or common, but it makes no difference to which class they belong.

As to independent school districts, it is plain the county has no authority to receive or sue for taxes collected by the county tax collector belonging to such districts. Such taxes are payable to the treasurers of the districts. Articles 2861, 2862, and 2891. Those districts are the ones to sue for any moneys belonging to them collected by the county tax collector and not accounted for by him to their respective treasurers. House v. Dallas, 96 Tex. 594, 74 S. W. 901; Moody v. Chesser, 173 S. W. 917; Connor v. Zachry, 54 Tex. Civ. App. 188, 115 S. W. 867, 117 S. W. 177; Miller v. School District, 26 Tex. Civ. App. 495, 63 S. W. 894.

As to common school districts, the same rule applies. Their trustees are bodies corporate with power to sue and be sued. Article 2822, R. S. Article 2836, R. S., requires the tax collector to pay all common school district taxes to the county treasurer, and that said treasurer shall credit each school district with the amount belonging to it and pay out the same in accordance with the law. And article 2767 provides that the term "county treasurer," as used in all provisions of law relating to school funds, shall be construed to mean the county depository.

It thus appears that no part of common school district taxes are even payable to the county treasurer of El Paso, but were payable by Watson direct to the county depository, whose duty it was to credit the funds to the respective districts. The county did not own the funds collected by Watson for common school districts, and had no authority to recover same. The trustees of the various districts were the proper parties plaintiff. Possibly the depository also might maintain the suit. See cases cited above and the following: Bank v. School District, 185 S. W. 589; Jernigan v. Finley, 90 Tex. 205, 38 S. W. 24.

We are aware that in Poole v. Burnet County, 97 Tex. 77, 76 S. W. 425, and Kempner v. Galveston County, 73 Tex. 216, 11 S. W. 188, suits were maintained by counties against their treasurers to recover school funds. But the funds involved in those cases were the available fund and the permanent school fund. The permanent fund of course belongs to the county. So does the available fund until it has been apportioned and set aside to the different school districts. This is the distinguishing feature of these, and possibly some other cases appearing in the reports.

2. As to the item of $3,657.82 taxes collected for drainage districts, it appears that drainage districts, by and through the drain commissioners, may sue and be sued. Article 2584, R. S. Such districts are the owners of funds collected by taxation for its benefit. They could properly sue to recover any funds belonging to it, but in view of statutory provisions the county, through its commissioners' court, is charged with such duties and responsibilities respecting such funds that it too may sue to recover the same in order that it may discharge its duties.

A consideration of these provisions discloses that under the subject of "Drainage," article 2533, R. S., makes it the duty of the tax collector to collect drainage taxes and to report to the county treasurer the amount of taxes collected, and it is the duty of the treasurer to keep a separate account of all taxes so paid over to him. Article 2540 provides that the commissioners' court shall pay the drainage contractor, or persons constructing the drain, out of any fund in the county treasury collected as aforesaid, etc. Article 2541 provides that it shall be the duty of the commissioners' court to audit all claims against the county for work and expenses under the provisions of that chapter, and for all claims allowed said court shall, by an order duly entered upon its minutes, direct the clerk of the county to issue a warrant payable out of the drainage funds and directed to the county treasurer for the amount allowed by the court.

"Under chapter 4, on subject of drainage by districts, article 2603, it is provided: `That in the assessment and collection of taxes authorized by this act, said assessor and collector shall have the same powers and shall be governed by the same rules, regulations and proceedings as are provided by the laws of this state for the assessment and collection of taxes for state and county purposes, and as otherwise provided for in this act.'

"Article 2605 provides: `The tax collector of the county shall be charged by the commissioners' court with the assessment rolls of the drainage district, and he shall be allowed such compensation for the collection of such taxes as he is now allowed for the collection of other taxes. The county commissioners' court shall require the tax collector of the county to give an additional bond or security, in such sum as they [may] deem proper and sufficient to secure the collection of said taxes.'

"Article 2606 provides: `It shall be the duty of the tax collector to make a certified list of all delinquent property upon which the drainage tax has not been paid, and return the same to the county commissioners' court, which shall proceed to have the same collected by the sale of such delinquent property, in the same manner as now provided for the sale of property for the collection of state and county taxes,' etc."

It thus appears that the commissioners' court is charged with duties and responsibilities respecting funds belonging to drainage districts which imperatively demand and authorize the county to sue for the recovery of funds belonging to such districts which have been collected by the tax collector and for which he has failed to account. Unless it have this authority, the commissioners' court cannot discharge the duty imposed upon it. However, such recovery cannot be had upon an allegation that such funds belonged to, and had been collected for, the county.

But in this connection, it is contended by the sureties that the payment of the taxes collected by the collector is secured, not by the general county bond upon which they are sued herein, but upon the bond which article 2605 requires to be given by the tax collector. The bond mentioned in this article is required to be given by the tax collector "to secure the collection of said taxes." It is not to secure the payment of the taxes by the tax collector to the county treasurer after he has collected the same. The general county bond secures such payment, and for that reason there is no merit in this contention. Kempner v. Galveston County, supra.

3. It is contended that Watson cannot be charged with commissions allowed him on state collections, as there is no valid law authorizing a county to collect as money belonging to it any part of such commissions. Article 3, § 48, of the Constitution, provides that the...