Welder v. Sinton Independent School Dist.

• Decision Date: 31 December 1919
• Docket Number: (No. 6285.)
• Citation: Welder v. Sinton Independent School Dist., 218 S.W. 106 (Tex. App. 1919)
• Parties: WELDER v. SINTON INDEPENDENT SCHOOL DIST.
• Court: Texas Court of Appeals

218 S.W. 106

WELDER v. SINTON INDEPENDENT SCHOOL DIST.

(No. 6285.)

Court of Civil Appeals of Texas. San Antonio.

December 31, 1919.

Rehearing Denied January 28, 1920.

Appeal from District Court, San Patricio County; M. A. Childers, Judge.

Action by John J. Welder against the Sinton Independent School District. Judgment for defendant, and plaintiff appeals. Affirmed.

Proctor, Vandenberge, Crain & Mitchell, of Victoria, and J. G. Cook, of Sinton, for appellant.

G. R. Scott and Boone & Pope, all of Corpus Christi, and J. C. Houts, of Sinton, for appellee.

FLY, C. J.

Appellant sought to enjoin appellee from collecting a certain sum of money claimed to be due for taxes for school purposes during the year 1918. Other parties— D. Odem, Mrs. Agnes Fleming et al., and B. F. Anderson et al.—filed separate suits against appellee of a like character as in this case, and, although each of the cases has been brought to this court on a separate appeal, it has been agreed that the same brief may be filed in each case, and a decision in this case will perforce decide the appeals in the other cases. In each of the cases the relief sought was denied.

The first, second, and third assignments of error assail the conclusion of the trial judge that G. L. Cellum was a de facto assessor and collector of taxes for the Sinton independent school district, on the grounds that the evidence showed that the attempted and purported action of the school trustees in selecting him to assess the taxes of 1918 was invalid, because he was not selected as assessor and collector of the district, and that Cellum did not act as assessor and collector of the district, but attempted to assess in a purely informal manner and without the color of authority. The proposition is that it is unconstitutional for a person to hold two offices of emolument, and that Cellum was endeavoring to hold the offices of city assessor and collector, as well as the district office of tax assessor and collector of the school district. The conclusion of the court was that, if it was unconstitutional to hold the two offices, the acceptance of the district office operated to vacate the office of city assessor and collector, and that the fact that Cellum held the city office offered no impediment to his taking the district office.

The conclusion reached by the trial court was undoubtedly correct. Cellum did not take the oath of office or give bond as assessor and collector of the school district, but tenaciously held to his office of city assessor and collector. The minutes of the school board showed that Cellum was appointed to assess and collect taxes at a per cent. to be agreed upon, not exceeding 4 per cent. In this connection it may be stated that the fact Cellum was a city assessor and collector could add no validity to, or in any manner affect, his employment to assess and collect taxes for the district; but the appointment must be considered as though Cellum was a private citizen and held no office of any kind, prior to undertaking the duties of assessor and collector of the school district. An acceptance of a second office would not have the effect of destroying the second office, but might destroy the right to hold the first. State v. Brinkerhoff, 66 Tex. 45, 17 S. W. 109.

If it be admitted that Cellum was informally and defectively appointed district assessor and collector, that would not prevent him from becoming the de facto officer, because it seems definitely settled that a person is a de facto officer where he enters into possession of an office and discharges its functions, under color of title or authority, which color of title or authority may be acquired from an election or appointment, however irregular or informal. Ruling Case Law, p. 593, § 313; State v. Oates, 86 Wis. 634, 57 N. W. 296, 39 Am. St. Rep. 912; Waterman v. Railway, 139 Ill. 658, 29 N. E. 689, 15 L. R. A. 418, 32 Am. St. Rep. 228; Howard v. Burke, 248 Ill. 224, 93 N. E. 775, 140 Am. St. Rep. 159. Under the special law of March 2, 1917 (Acts 35th Leg. p. 151), the board of trustees of the Sinton independent school district was given authority to choose an assessor and collector of taxes; no method of choice being prescribed, any kind of appointment, evincing a choice of a certain individual for the office, would be sufficient. Cellum accepted the appointment, however informal it may have been, and proceeded to perform the duties appertaining thereto.

The office of assessor and collector of the district existed under the special or local law, and it is held that a person may be a de facto officer, although he fails to take the required oath or give the required bond. Ruling Case Law, p. 597, § 319; Railway Co. v. Bolding, 69 Miss. 255, 13 South. 844; Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828; Brown v. State, 42 Tex. Cr. R. 417, 60 S. W. 548, 96 Am. St. Rep. 806. It cannot be claimed that the appointment of Cellum was void, because it was made by a board authorized to make it. It was merely irregular or informal, which did not affect its validity. Clegg v. State, 42 Tex. 605.

In the case of D. Odem and W. H. Bullard, two of the appellants, the assessment sheets were signed by them; in the case of Anderson, another appellant, the assessment sheet was presented to him, and he refused to sign it. All of...