Grayson County v. Cooper

LEVY, J. (after stating the facts as above). The judgment of the trial court in favor of the defendants should be sustained, it is concluded, upon the plea of the statute of limitation of two years and under the admitted facts. The allowance and payment of the money by the county commissioners’ court to the appellee Cooper was made on November 25, 1910, and the suit was instituted, on March 21, 1913. And, as this conclusion would end any recovery by the county, the question would become immaterial whether or not the road district, authorized by the special law of the Legislature to sue and be sued as a body politic, or the county of Gray-son, had the legal right to maintain this suit. The suit, it is believed, is in the nature of an action for debt for money had and received, and consequently is an action against the appellee Cooper personally. The suit is not one upon the official bond of appellee Cooper as tax assessor, as for an accounting required by law for fees collectible by him in virtue of his office and belonging to the county. The tax assessor does not by law, in virtue of his office, collect any money on behalf of the state and county, like the tax collector; and he does not receive and collect any fees from individuals, like the county and district clerks. The tax assessor of a county receives for his official services compensation based on the assessed valuations of property, in the method defined by statute (article 7583), but limited to a maximum (article 3885, Stat. of 1911) and payable only by the state and county (articles 7584, 7585). As the compensation of the tax assessor is limited by the existing law to a maximum, he cannot be paid any compensation by the county above the amount allowed by the law to be paid him. The duties required by law of a tax assessor are to take a list of all taxable property in his county and assess the value thereof and make out rolls. Article 7547. He is further required to keep a record of the compensation paid him for his official services, and to make annual report of the same to the district court (articles 3894, 3895); and his official bond is conditioned that he “will faithfully discharge all the duties of his office.” And none of these duties were violated by the appellee Cooper as tax assessor, according-to the pleadings and the proof. The suit is entirely predicated on the recovery of money which the county had voluntarily allowed and paid Mr. Cooper in excess of the maximum compensation allowable to a tax assessor for official services. The money in controversy was paid to appel-lee Cooper on the order of the commissioners’ court on November 25,1910. And at the time the payment was made to Cooper as alleged and found by the court as a fact, the maximum compensation allowed by law for his official services as tax assessor during the year 1910 had been fully paid to him by the state and county. The taking and receiving of the excess compensation was not an act within the purview of the bond. As the case is one in the nature of debt, for money had and received, with an implied promise to return it, the statute of limitation of two years *251 is the one running against the county. Railway Co. v. Travis County, 62 Tex. 16; Jeff Davis County v. Davis, 192 S. W. 291; Canal Co. v. Orange County, 158 S. W. 173. The judgment is affirmed. Footnotes [1] <®=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes