A. J. Swan, Adm'r of Whitmore, v. The State, 48 Tex. 120

Roberts, Chief Justice. The first assignment of error, that the court erred in overruling the exceptions of defendants, setting out the objection that the District Court of Anderson county had no jurisdiction over this case, is not well taken. It proceeds on the position that Travis county alone has jurisdiction of such a suit, since the passage of the law of' 1870, permitting suit to be brought in Travis county, and authorizing the comptroller to proceed in a

summary way in the collection of taxes against a defaulting tax collector. (Paschal’s Dig., art. 7638.) That provision is evidently designed to furnish a cumulative remedy.

It says the “ sheriff and his sureties shall be liable to be sued on their bond or bonds, in the District Court of Travis county.” In the law regulating proceedings in the District Court, it is provided, that “in cases of fraud, and also in cases of defalcation of public officers, * * * suit may be instituted in the county where the fraud was committed, or where the defalcation occurred, or where the defendant has Ms domicil.” (Paschal’s Dig., art. 1423.) Unless the law of 1870 could be held to give to the District Court of Travis county exclusive jurisdiction, there could be no question about the jurisdiction of the District Court of" Anderson county; for, so far as this is a question of venue,, the defendants waived it, if they ever could have raised it, by pleading to the merits in their first answer, filed several years before the filing of this exception to the jurisdiction.

The second, third, fifth, and sixth assignments relate to the rulings of the court upon exceptions, general and special, to the sufficiency of the petition. The only exception that was not fully obviated by the numerous amendments, was that the petition did not allege how much of the alleged unpaid taxes were collected in 1871, and how much in 1872.

The petition shows that the sheriff-was elected in December, 1869, gave the bond sued on the 26th of October, 1870, as sheriff, (his term of service, by law, was four years,) and that, as sheriff) he, during the years of 1871 and 1872, collected the school taxes assessed for those years, amounting to $15,208.11.

In one amendment it is alleged that he, Kelley, had collected the one per cent, school tax, as charged in the original petition, and in another amendment it is alleged that said tax was assessed, as charged in the original petition, by the board of school directors of the county of Anderson, pursuant to law and to the directions of the State board of education, and that the book or memorandum of said assessment, kept by Shuttuck, treasurer, and the book or memorandum of said taxes so collected, were lost. What is meant here by the repeated expression, “ as charged in the original petition ” ?

Hot that it was the one per cent. school tax, or'that it was assessed by the board of school directors of Anderson county; for neither of those facts had been charged in the original petition.

But it was charged in the original petition that the sheriff had, during 1871 and 1872, collected $15,208.11 of school taxes, assessed for said years; and by the amendments it is meant to be stated that the tax thus alleged in the original petition to be collected was the one per cent, school tax, and that it was assessed by the board of school directors of Anderson county; and it was .alleged in the original petition, and in each of the two amendments referred to, that Kelley had collected the assessed taxes as sheriff, and had failed to pay them over.

It is unnecessary to consider how much better, or how much worse, it could, have been stated to represent the fact that Kelley, as sheriff, had collected, during the years 1871 and 1872, $15,208.11 of the one per cent, school taxes, assessed for said years by the board of school directors of Anderson county. Such is the meaning of the pleader, shown in substance through the original and several amended petitions considered together*.

If during these two years he collected this amount of tax as charged, and had not paid it over, or some part of it, it was certainly not material, so far as anything appeared in the petition, or in its amendments, whether it was collected in one or in both of those years; and if in one, not material which. The defendants pleaded that Kelley, on the 26th of July, 1872, gave another and special bond for the collection of the school taxes, by the direction of the board of education; and that if any default was made by him, it was after that date, and his sureties on this bond were not liable for it.

The court overruled exceptions to this plea, thereby giving the defendants the right to limit their responsibility to any default made in collection of the taxes, previous to that date, during the years 1871 and 1872.

The questions arising upon the third, fourth, and ninth assignments of error, that the law creating the taxes, the collection of which is sued for, was enacted after the date of the bond sued on, and that the law itself was unconstitutional, which imposed the said taxes, were decided against the defendants by this court in this case, here on appeal in 1875, and we have no wish to reconsider the conclusions then arrived at. (The State v.

Kelley, 43 Tex., 667.) This court decided the levy of the one per cent, school tax to have been unconstitutional when sought to be enforced by a tax collector against a citizen tax-payer, because the Constitution contemplated the management and direction of the public schools, and the disbursements of the funds collected by taxes imposed, to be vested in local boards in the school districts, subject to the supervision of the superintendent of public instruction; and the law created a central board, composed of the governor, attorney-general, and superintendent, and vested it, in effect, with the absolute power of control and direction of the local boards.

This was obviously a perversion of the provisions of the Constitution, in the establishment of a public-school system that erected a central power of rule unknown to the Constitution, utterly destructive of the constitutional rights of the local authorities, and, whether designed so or not, a dangerous engine of political power. (Willis v.

Owen, 43 Tex., 41.) But this presents the case of an officer, acting for the State, in the collection of taxes as imposed by the acts of the Legislature, calling in question the validity of the act under which he has collected the taxes from the tax-payers, and refusing to pay the same. This he cannot be allowed to do, as it has been attempted in this case. (Morris v. The State, 47 Tex., 583.) It is argued, that as the bond, in one of its terms, provided for the payment of moneys collected into the State treasury, any law or regulation providing differently did not bind the sureties. But that was not all.

The bond contained a condition for the performance of his duties generally; and surely no regulation or law providing for its payment to an officer in Anderson county, where it was to be used, would be imposing a new obligation, not within the purview and objects of the terms of the bond. It must have been contemplated, that the Legislature might, from time to time, change the then prescribed duties of the sheriff as tax collector; and this law was not a departure from that object.

The seventh, eighth, tenth, eleventh, and twelfth assignments of error relate to the insufficiency, or want of evidence of the levy, or of the assessment of the taxes alleged to have been collected and not paid; of the demand of their payment from the sheriff, and of the collection of them by the sheriff. The words “levy” and “assessment” are used indiscriminately in the pleadings and in the evidence, which is liable to produce some confusion in a proper understanding of what is meant in each case, when they are so used.

The direct evidence of a levy by the school board is slight; but that Kelley’s deputy received the tax-roll containing the assessment of the school tax, including the one per cent, tax, that he collected them under, and by virtue of said assessment, and paid the money so collected to Kelley, as sheriff, and that it was demanded by Shuttuck, the treasurer, and that he had authority to receive it, and that it, to the extent of the amount of the judgment, was not paid, or in any way accounted for by Kelley, are facts fully established, and they are deemed sufficient to sustain the judgment in this case. (Paschal’s Dig., arts. 6676, 6677, and regulations of board of education, in evidence.) Affirmed.