A. J. Jernigan, County Treasurer, v. R. W. Finley, Comptroller, 90 Tex. 205

GAINES, Chief Justice. This is an original proceeding for a writ or mandamus, instituted by the petitioner as County Treasurer of Travis County, against the respondent as Comptroller of the State of Texas, to compel the latter to issue his warrant, as Comptroller, upon the State Treasurer, in favor of petitioner in his official capacity, for the sum of $277.85,—that being a part of the amount set apart to Travis County by the State Board of Education, as its portion of the available school fund for the scholastic year beginning September 1, 1895.

The petition alleges in substance, that the Board of Public Education, as was its duty to do, on or before the first day of August, 1895, made an apportionment of the available school fund of the State for the scholastic year beginning September 1, 1895, and ending August 31, 1896; that in said apportionment the sum of $20,086.50 was set apart to Travis County; and that thereupon the Superintendent of Public Instruction issued to the petitioner, as County Treasurer of Travis County, a certificate of the sum so apportioned, with coupons attached as required by law, but that after payment of four of such coupons, the State Treasurer, from funds in his hands for that purpose, set apart the sum of $277.85 to be paid to Travis County upon its coupon Eo. 5; and that the respondent had refused upon demand to issue his warrant for the sum so set apart.

The respondent has demurred to the petition, claiming: 1. That the court has no jurisdiction to issue a writ of mandamus against him as Comptroller; 2. That this is a suit against the State, and cannot be maintained; and 3. That the plaintiff, as County Treasurer, has no authority to' bring the suit.

After a general denial (which, in a case of this character, is of no effect under our decisions) the respondent answered specially that Travis County is indebted to the State upon certain bonds bearing interest payable annually, amounting in the aggregate to the sum of $104,000, principal,— which bonds had been issued by the proper officers of the county and had been purchased by the State for the benefit of the school fund; that the county had made default in the payment of the interest on such bonds, and that therefore it was not entitled to draw any money from the State treasury until its indebtedness was discharged.

The petitioner interposed a demurrer to this answer. None of the grounds of the demurrer to the petition can be sustained. 1. That the court has the power to issue a writ of mandamus against the Comptroller or other head of department of the State government has been repeatedly decided. (Thompson v. Baker, opinion this day delivered.) 2.

The statutes make it the duty of the State Treasurer on the first day of each month to “set apart to each county, city or town such a portion of the available free school fund as has come into his hands during the preceding month, as is shown by the certificates held by them to be due to each, upon a pro rata distribution thereof, and he shall notify each local treasurer of the school fund, through the State Superintendent of Public Instruction, of the amount which can be paid on the remaining coupons, until the whole amount of apportionment to each county or independent school district has been paid;” and also provide, that “said money so set apart shall not be used by the State Treasurer for any purpose other than to pay the warrant drawn by the State Comptroller upon presentation of such coupons.” Bev.

Stats. 1895,

article 3926a. Articles 3924 and 3924a also direct that “the Comptroller shall keep a separate account of the available school fund arising from every source.

He shall draw his warrant in favor of the Treasurer of the school fund of each county, city or town that has control of its public schools, in such sum as ■each is entitled to upon a pro rata distribution of the available school fund in the hands of the State Treasurer, upon the presentation to him of a ■coupon properly filled out and receipted by the said local treasurer;” and that “'the Comptroller shall, at the time the certificates of apportionment ■are issued, advise the county Treasurer of each county of the amount which the county tax collector of his county is authorized to pay on coupon Ho.l to the said county Treasurer for the available school fund for the ensuing school year.” Therefore, when the Board of Education has made the apportionment and the certificate has been issued notifying the county Treasurer of the sum apportioned to his county, and when, on the first day of each month, the State Treasurer has made a pro rata distribution of the funds that have come to his hands during the preceding month, and notified, through the Superintendent of Public Instruction, the county Treasurer of the amount set apart to his county, and the county Treasurer has presented to the Comptroller a coupon properly filled out and receipted by said local treasurer,—it becomes the plain duty of the Comptroller to draw his warrant for the sum so apportioned.

It is an imperative obligation enjoined upon him by the law-making power of the State. In pursuance of the power conferred upon it by amended

section 3 of

article 5 of the Constitution, the Legislature has given this court jurisdiction to issue the writ of mandamus against any State officer, the Governor excepted. That is, it has authorized a suit against any such officer to compel him to perform the duties imposed upon him by law. It can hardly be said that such a suit is one against the State; but if it be such in any sense, it is nevertheless proper and maintainable, because the State has authorized it to be brought.

It is otherwise when the Legislature has not enjoined the performance of the act, and the interests of the State, either in its property or funds, would be injuriously affected by awarding the writ. (See Thompson v. Baker, this day decided.) 3. The law imposes the duty upon the county Treasurer of procuring the warrant from the Comptroller and of collecting it from the State Treasurer. Ho other officer of the State or county has authority to do this.

It is a matter that pertains alone to the school fund of the State, and in it the county, in its quasi-corporate capacity, has no interest that can be recognized by law. Its treasurer is the custodian of so much of the available school fund as may be set apart to the county; the County Superintendent, if there be one—and if not, the County Judge—superin tends its distribution under the law. It does not follow, that because an officer is called a county officer, that the functions he exercises are exercised for the quasi-corporation.

They may be State officers, though their jurisdiction or powers may be confined to the limits of the county or even to one of its political subdivisions. Fears v. Nacogdoches Co., 71 Texas, 337.

The County Superintendent or County Judge as the case may be, and the County Treasurer, in the exercise of the powers conferred upon them by the school-law over the available school fund of the State, which is set apart for the maintenance of the public schools of the county, act for the State, and for such children residing within the geographical limits of the county, as the State has designated as the objects of its bounty.

For the purpose of convenience in administering the available school fund of the State, the Constitution and statutes adopt the State’s political subdivisions in providing for its distribution, and the statutes devolve certain duties with respect thereto upon certain of the county officers. This was doubtless prompted in part by motives of economy. It confers no right in the fund in the quasi-corporation known as the county. The Constitution makes the Commissioners Court the governing body for the county business proper. Constitution,

article 5, sec. 18. These courts are empowered by the statutes to exercise some functions with reference to the execution of the school law, such, for example, as abolishing the office of county Superintendent; dividing the county into school districts; ordering elections to authorize a levy of special taxes, to aid in the support of the public schools and to levy such taxes, when voted by 'the people. But the law does not make them either the custodians or disbursing agents of the fund set apart by the State to the counties; nor does it make the counties, as bodies politic, the trustees of such fund.

It follows, we think, that the County Treasurer, as the treasurer of the available school fund apportioned to the county, having the-duty imposed upon him of procuring and collecting the warrant, was. the proper party to bring the suit. Travis County had no right to institute and maintain the proceeding. There is a marked distinction between the available school fund apportioned to a county and the lands granted to the counties respectively for school purposes. The titles tp the latter and to the fund arising from the sale of such lands are vested by the Constitution in the respective counties. Constitution,

article 7, sec. 6. For its own lands and school funds—the proceeds of such lands—each county has the right to sue. The demurrer to. the petition must be overruled; and this brings us to' the question of the sufficiency of respondent’s answer. The purpose of the answer is to show that the county of Travis is indebted to the State of Texas, so as to bring the case within the prohibition prescribed in

article 2831 of the Revised Statutes. That

article contains the following provision: “No wr arrant shall be issued in favor of any person, or agent or assignee of any person indebted to the State until such debt be paid.” This was probably intended not only to enforce the-State’s off-set, but to compel the direct payment of a debt due the State, by depriving the debtor of the right to draw any money from the State Treasurer, until his obligation is wholly discharged. But the principle which pertains in case of off-sets must apply here. The “person” mentioned in the statute must be the State’s debtor and the State’s creditor in the same right.

The petitioner does not claim the warrant as county Treasurer of Travis County; but the school law makes him, as county Treasurer, ex-officio “treasurer of the available public free school fund” of his county (Rev. Stats., art. 3935); and it is in this latter right that he sues. As .treasurer of the school fund set apart to the county, he owes nothing to the State or to the general State school fund; neither does the fund he represents owe anything.

We have already endeavored to show that, to the money for which the warrant in controversy is sought, Travis County in its corporate capacity is not entitled, either in its own right or ■as trustee for the public schools of the county.

If it were money coming to Travis County, or if, by some inadvertence, the county Treasurer had received from the available school fund of the State more money than he was entitled to receive and had appropriated it to the use of the schools, and thus he, or the fund of which he is trustee, had become liable to reimburse the general State fund, the defense would have been more plausible.

But, admitting, for the sake of the argument, that the answer shows an indebtedness on part of Travis County to the State school fund, the question is simply this: Can a fund provided and set apart by the State for the benefit of the children of Travis County, be off-set by the county’s indebtedness? Can that indebtedness be interposed under

article 3935 of the Revised Statutes, cited above, as a ground for refusing to issue the warrant in this case? We are clearly of opinion that these questions must be answered in the negative. But even had the Legislature passed

an act which attempted, in explicit terms, to authorize the Comptroller to withhold his warrant in a case like this, it would have been without effect.

Section 5 of

article 7 reads as follows: “The principal of all bonds and other funds, and the principal •arising from the sale of the land hereinbefore set apart to said school fund, shall be the permanent school fund; and all interest derivable therefrom and the taxes herein authorized and levied shall be the available school fund, to which the Legislature may add not exceeding one per cent annually of the total value of the permanent school fund; such value to be ascertained by the Board of Education until otherwise provided by law; and the available school fund shall be applied annually to the support of the public free schools.

And no law shall ever be enacted •appropriating any part of the permanent or available school fund to any other purpose whatever; nor shall the same or any part thereof ever be •appropriated to or used for the support of any sectarian school; and the available school fund -herein provided shall be distributed to the several counties according to their scholastic population and applied in such manner as may be provided by law.” The Legislature cannot do by indirection what it cannot do directly.

To off-set the school fund set apart to the county by the debt of the county, would be to devote the fund to-a purpose not intended by the Constitution; and to authorize the Comptroller to withhold his warrant until the county’s, debt was paid would infringe the express provision of the

section quoted, which declares that the fund “shall be distributed to the several counties according to their scholastic population and applied in such manner as may be provided by law.” It is evidently meant, that it must be distributed and applied for the purpose for which the fund was created—namely, the support of the public schools. It follows, that the allegations of the answer do not show a defense to the suit, and that the demurrer thereto must be sustained. Whether the word “person” in

article 2831 includes a county; and whether the alleged indebtedness of Travis County is sufficiently pleaded in respondent’s answer, are questions which we do not find it necessary to decide. The writ of mandamus is awarded as prayed for in the petition. Writ of mandamus granted.