Wall v. McConnell

Stayton, Associate Justice. action was brought in the, name of W. P. Wall, county judge, for the use of Houston county, against its treasurer and the sureties on his oficial bond, to recover money which the treasurer claimed the right to retain as commissions on money received and disbursed by him. It is contended that the action cannot be sustained, for the reason that there is no averment or proof that the county commissioners’ court directed the suit to be brought. This is practically a suit on the treasurer’s bond, which the law requires to be made payable to the county judge. R. S., 988. The statute expressly provides that “suits may be commenced and prosecuted on such * * * bonds, * * * in the name of such county, or in the name of the person to whom they were made, for the use of the county, as fully and effectually as any person may or can sue on like notes, bills, contracts, covenants, agreements, or writings made to him.” R. S., 682, 683. The evidence shows that the claim set up by the treasurer was considered and disallowed by the county commissioners’ court. We see no reason to doubt the right and power of the county judge to institute and maintain this action, without pleading or proving that he was directed to do so by the county commissioners’ court. The case of Looscan v. Harris county, 58 Tex. 511, cited by the appellees, was very different from the present. In that case, the district attorney, in opposition to the wish of the county commissioners’ court, brought an action affecting the financial affairs of the county, and it was held that he had no authority to do so. On May 15, 1883, the county commissioners’ court for Houston county fixed the compensation of the treasurer, which, prior to that time, had been two and one-half per cent., atone and one-quarter per cent, for receiving or disbursing moneys which came into his hands. The authority of the court so to fix the compensation is not questioned. R. S., 2403. Prior to that date the county commissioners’ court had accepted bids for bonds, which it proposed to issue for the purpose of raising money to build a court house and jail. By the agreement so made with the persons who were to become the purchasers of the bonds, they were to be paid for in part before and in part after the date at which the compensation of the treasurer was reduced. ' The part of the purchase money which was to be paid on the bonds, under the terms of sale, before May 15, 1883, was so paid, and went [400] into the hands of the treasurer, and, on that sum, he received the rate of compensation to which he was entitled at the time the money came into his hands; but this rate of compensation was denied to him for money received on the bonds after that date. The bonds which were sold bore date April 16, 1883, and from that date bore interest, although by the terms of the agreement, under which they were sold the purchase money was not actually paid or to be paid until a subsequent time. The county treasurer asserts a •claim to two and a half per cent, commission on the sum for which the entire bonds sold, upon the ground that the money must be deemed to have been received by him at the time the bonds bear date and from which they bear interest. His theory for this is, that as under the law bonds could not legally be sold for less than “their face or par value,” a sale of bonds to bear interest from a date anterior to the time they were actually paid for, was not a sale of bonds for their “face or par value,” and therefore illegal, unless the money is to be deemed to have been paid into the treasury at the time the bonds bear date. It may be, as between the county and holders of the bonds, with notice of the fact that they bear interest from a date anterior to the time they were actually issued and paid for, that interest for the intervening time could not be collected; but we cannot see in what respect •the right of the county treasurer is to be effected by this matter. If the contracts under which the bonds were sold were illegal, it is not perceived on what principle the county treasurer can assert right under it to commissions on moneys from a time when the county, under the contracts, was not entitled to have it in the hands of its treasurer. If it be admitted that the county could not legally sell bonds as it did, a question which need not be considered in this case, it is certainly true that the purchasers of bonds were under no legal obligations to receive them and pay for them on terms .other than such as they had made. The treasurer’s right to commissions cannot stand on higher ground than would that of the county to the fund on which the commission is claimed. The county had not received, and was not entitled to receive, the sum which was paid for the bonds after May 15, 1883, at any time prior to that date; and on what it had not received, and was not entitled to receive, before that date, its treasurer was not entitled to •receive two and a half per cent, commission upon. In the transactions, out of which the treasurer’s claim arises, the county oficiáis .seem to have acted with the utmost good faith, looking alone to the Interest of the county ; but, if this were not so, it would not help the [401] claim of the appellees, who show no legal right to what they claim. The county had insurance on public buildings which were destroyed by fire, and drafts covering the amount of insurance came into the hands of the county judge in February or March, 1888. These drafts seem to have been placed in a bank for collection soon after they were received, under an agreement with the bank to collect them without charge, upon condition that the bank should have the use of" the money to be collected, until such time as it should be needed in the construction of the court house and jail, towards the erection of' which the county desired to use it. The money seems to have been collected by the bank, but the time of its collection does not appear. That the county judge had no authority to place the money, which belonged to the county, in the custody of any person other than the county treasurer, is too clear. The law provides that county funds shall be deposited with the county treasurer, who, for the security of such funds, and for the faithful performance of his duties in reference thereto, is required to execute a bond. Deposits elsewhere are unauthorized, unsecured, and ought not to be made. It may be that the county commissioners’ court, or the county judge, would have authority to have the drafts, which they held, collected in such a way as might seem most to the advantage of the county; but, when collected, the county treasurer was the only person entitled to the custody of such funds, under the facts shown in this case. If the money was collected on the drafts, before May, 15, 1883, the county treasurer was entitled to commission on it, at the rate provided before that date, and of this he cannot be deprived by the fact that the money was placed in the custody of the bank. There seems to have been no intent to wrong the county treasurer ; ‘on the contrary, the county commissioners’ court and the county judge seem to have been actuated by no other motive than the public good; but good intentions cannot take away legal rights. The judgment of the court below will be reversed and the cause remanded, in order that inquiry may be made as to the time at which the money collected on the drafts given to cover amounts to which the county was entitled, on insurance, was received, and that judgment may be there entered in accordance with this opinion. It is so ordered. • Reversed and Remanded. [Opinion delivered February 2, 1886.]