Webb County v. Board of School Trustees

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Webb County v. Board of School Trustees, 65 S.W. 878 (Tex. 1901)
• Decision Date: 23 December 1901
• Parties: WEBB COUNTY v. BOARD OF SCHOOL TRUSTEES OF LAREDO.

65 S.W. 878

WEBB COUNTY v. BOARD OF SCHOOL TRUSTEES OF LAREDO.

Supreme Court of Texas.

December 23, 1901.

Error to court of civil appeals of Fourth supreme judicial district.

Action by the board of school trustees of the city of Laredo, intervening in an action by the city of Laredo against the county of Webb. From a judgment of the court of civil appeals (64 S. W. 486) reversing a judgment for defendant, it brings error. Judgment of court of civil appeals reversed, and of district court affirmed.

E. A. Atlee, for plaintiff in error. J. F. Mullally, for defendants in error.

GAINES, C. J.

This action was originally brought by the city of Laredo against the county of Webb to recover the proportion of the available school fund of the county due to the independent school district of the city of Laredo for a series of years before the filing of the suit. A demurrer to the petition was interposed for the want of proper parties, and the trustees of the independent school district intervened, setting up the same cause of action, and claiming a recovery thereon. The court sustained the demurrer, both to the petition of the plaintiff and to the intervening petition of the board of trustees, and, the parties declining to amend, judgment was entered for the defendant. The board of trustees alone appealed. The court of civil appeals reversed the judgment and remanded the cause.

The question is, did the petition in intervention set up a good cause of action against Webb county? The allegations of that petition show that Webb county was the owner in trust of certain lands for the benefit of its common schools, and also of a fund, the proceeds of the sale of such lands, and that from the year 1884 up to the time of bringing this suit there had been received by that county an annual income therefrom, which properly belonged to the available school fund of the county, and that no part of the same had been apportioned or paid to the independent school district of Laredo for the maintenance of the public schools under its charge. The share due to the independent school district is alleged to be $6,028.71, for which judgment was asked against the county. The wrong alleged in the petition is set forth in the following language: "That defendant and its officers, not regarding their duty in the premises, neglected throughout said period of time to make any apportionment of such funds whereby any part thereof was apportioned to said independent district, and neglected to pay over to the treasurer or any other officer of said independent district any part of said revenue so payable for its use, and that no part of said money has ever been used for the benefit of such independent district, and the same remains due and wholly unpaid. Interveners say that the defendant, throughout said period of time, expended all of such trust revenues so received by it in maintaining schools in said county outside of said independent district, paying teachers' salaries, school house rent, buying school furniture, supplies, etc., and for incidental expenses connected with such schools, and was thereby enabled to maintain its said schools without levying or collecting any special tax therefor, and never levied or collected any such school tax, and that said money does not now exist in the treasury of defendant to the credit of its school fund; wherefore interveners say that defendant wrongfully converted said money due said independent district to its own use, and received the benefit thereof, and thereby became justly indebted and bound to pay to said independent district the said sums of money, amounting, in the aggregate, to $6,028.71." Interveners also alleged "that it would be idle and useless to sue the county superintendent of public instruction of defendant county, to compel him to apportion such revenues so collected during such time, according to the provisions of Rev. St. art. 3934, or to compel him to approve any warrant or draft on the county treasurer therefor, and it would also be idle and useless to sue the county treasurer of defendant county to compel him to pay any such draft or warrant, because the said funds have long since been converted by defendant, and spent by it for its own use and benefit, and do not now exist under the control of such county treasurer; wherefore, interveners say that said county superintendent and county treasurer are neither necessary nor proper parties to this proceeding." The chief difficulty in disposing of the case arises, in our opinion, from the vagueness of these allegations. In order to be called upon to make answer to the suit, it is clear that the defendant was entitled to be apprised by the petition what particular officer or officers were guilty of the wrongs for which it is sought to be held liable. Hence, if a special demurrer had been interposed to the averments first quoted, on the ground that they were vague and indefinite, it should have been sustained. But the demurrers, though they assign special reasons why they should be sustained, are, in effect, general. Such being the case, we must, under the rules, indulge every reasonable intendment in favor of the pleading. But, subject to this rule, averments of doubtful meaning must be construed against the pleader. The averment that "defendant and its officers * * * have neglected, throughout said period of time, to make any apportionment of such funds" leaves the court to conjecture what officers are meant. A failure to do a duty cannot be imputed from the allegations in a pleading, when such failure is not charged, either by express averment or by necessary implication; and, in this case especially, it is not to be inferred that it was the intention of the pleader to charge that the commissioners' court failed to make an apportionment, since the statute devolves that duty upon the county superintendent, and not upon that body. Rev. St. art. 3934. The duty being imposed by law upon the superintendent of public schools of the county, it is to be presumed from the averments that he is the officer for whose misconduct the county is sought to be held liable. We also think the subsequent allegation, "that the defendant, throughout said period of time, expended all of such trust revenues so received by it in maintaining schools in said county outside of said independent district," is to be construed in connection with the foregoing, and that, so construed, it is to be implied that it is the county superintendent who is charged with the misappropriation of the funds. This construction is borne out, in part at least, by the subsequent allegations, which assert reasons for not bringing suit against the superintendent and the county treasurer. Besides, unless the allegation "that the defendant" misapplied the funds be construed in connection with the next preceding averment, we doubt whether it can be given any effect whatever. The county, being a quasi corporation, can only act through some officer or...