
    HARRIS COUNTY v. CHARLTON, County Treasurer, et al.
    (No. 3738.)
    (Supreme Court of Texas.
    June 24, 1922.)
    1. Appeal and error <@=>1082(2) — Supreme Court may pass on all questions of law assigned in Court of Civil Appeals, though not determined by that court.
    It is within the jurisdiction pf and becomes the duty of the Supreme Court to pass upon all questions of law assigned by both parties in the Court of Civil Appeals, to ascertain what judgment ought to have been rendered in that court, and it will not refer assignments back to the Court of Civil Appeals simply because such court failed to determine them.
    2. Counties <@=>98(2) — County, as trustee, entitled to sue treasurer on bond given to protect school fund.
    As trustee for the available school fund a county was entitled to sue for their recovery from the county treasurer and upon his bond given to protect the school fund any shortage shown to exist in said fund, and the commissions shown to have been collected and retained by him after he had reached his limit of $2,000.
    3. Counties <§=>74(3) — Commissions accrue to county treasurer caring for school funds as received and disbursed until statutory limit reached.
    County treasurer paring for county funds and school funds was entitled tQ commissions upon the funds as they were received and disbursed by him, and when his limit of $2,000 was reached, in whatever month, his right to collect and retain further commission from either fund ceased, under Rev. St. 1895, art. 928.
    4. Counties <@=>101 (5) — Sureties on different bonds of county treasurer had a right to have liabilities between them settled in action by county against treasurer to recover shortages
    Where items constituting sums sued for in action by county against treasurer and sureties on different bonds were collected and not accounted for during the period covered by any one of the bonds, the sureties on the different bonds had the right and opportunity to have the liabilities between them settled in the action in view of Rev. St. 1895, art. 1205, providing for joinder of sureties on different bonds when it is difficult to determine when the default occurred and which set of sureties is liable.
    5. Limitation of actions <©=> 11 (I) — Four-year statute does not run against county as trustee of public free school fund.
    Four-year statute of limitations would not run in favor of county treasurer and his bondsmen against the county as trustee of public free school fund as respects items making up a shortage.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Action by the County of Harris against James Charlton, County Treasurer, and others. From a judgment of the Court of Civil Appeals (234 S. W. 135) reversing a judgment in its favor, plaintiff brings error.
    Judgment of the district court affirmed in part and reversed in part, and judgment of the Court of Civil Appeals reversed, and cause remanded to the district court.
    See, also, 243 S. W. 459.
    E. R. Campbell and Louis, Campbell & Nicholson, all of Houston, for plaintiff in error.
    George Charlton and Carothers & Brown, all of Houston, for defendants in error.
   PIERSON, J.

After having made some slight corrections in the statement of the case by the Court of Civil Appeals, we adopt same, as corrected, as a statement of the case.

The appellee, Harris county, instituted this suit against appellants, James Charlton, as county treasurer of the county, and also against the sureties on three of his official bonds as county treasurer, to recover $5,-772.93 claimed to be due the county by Charlton. The cause was tried before the court without a jury, and judgment was rendered in favor of Harris county, the appel-lee, and against appellant ’Charlton, and all of the sureties on each of his three bonds as such county treasurer, for $1,819.98, which was for the following items:

Commissions collected from school fund.... $1,001 60
Amount overpaid as interest on bonds. 11 75
A shortage alleged to have occurred somewhere between November 23, 1906, and November 30, 1910, the date being unknown . 229 58
Interest from January 1, 1911 on all such sums . 576 15
Total .$1,818 98

It was agreed by the parties in the trial court, and thereupon the trial court found as a fact that appellant Charlton was the duly elected and qualified treasurer of Harris county from November 23, 1906, to November 30, 1910, and that during that time he, as treasurer of the available and permanent school funds of the county, collected as commissions for handling same the sum of $1,-499.02. It was further agreed, and the trial court found, that this amount was collected out of the available school fund, and that, in addition to this, Charlton retained out of the general funds belonging to Harris county commissions in the sum of $2,000 per year for each year during said period. The trial court further found that the said Jas. Charl-ton collected as commissions from the county of Harris for the year of 1907 the sum of $497.52 more than the $2,000 maximum allowed as provided by law, and that such collection was made more than four years before the filing of this suit by plaintiff in this cause, and that the claim of the county therefor to that extent was barred under the four-year statute of limitations. He deducted this amount from the $1,499.02 and gave judgment for the county of Harris for $1,-001.50 on commissions wrongfully collected .from the school fund, with 6 per cent, interest thereon from January 1, 1911.

The first assignment of error complains of the action of the trial court in allowing a recovery by Harris county for any part of the commissions collected and retained by Charlton for handling the school fund of the county; appellant claiming in that connection that the undisputed evidence showed that he had a legal right to the commissions so collected and retained by him for handling the school funds of the county, in that the $2,000 limitation on the county treasurer’s fees does not apply to the fees collected as treasurer of the school fund.

Under this assignment, the proposition is asserted by appellant that article 3875, Revised Statutes, limiting county treasurer’s compensation to $2,000,' has no application to the fees collected by the county treasurer from school funds for services rendered by him in his ex officio capacity as treasurer of such funds. On the contrary, the counter propositions asserted by the appellee, Harris county, is that the limitation of $2,000 per annum as the maximum compensation to a county treasurer applies to and includes commissions received by him for handling such school funds, and that such limitation covers any and all fees and commissions received by such officer from any and all sources.

The Court of Civil Appeals held that the commissions allowed a county treasurer for handling public free school funds were not included in the limit of $2,000, and that the treasurer was entitled to retain them.

In order that our holding in this case may be clearly understood it is necessary that we briefly review the legislative enactments leading up to the present statutes on the issue involved here.

The office of county treasurer was created by the Legislature in 1846, and provision made for compensation for the treasurer.

In 1854 an act was passed providing for a comprehensive school system for the state, for the formation of school districts, and for school trustees, and for the control and management of school funds. It also provides that the county treasurer should give a separate bond for handling the school funds. ,

In 1876 an act was passed to fix and regulate the fees of officers of the state. Section 15 of this act reads as follows:

“Sec. 15. County treasurers shall receive the following fees: The county treasurer shall receive not more than two and one-half per cent, on all sums received by him, and not more than two and a half per cent, on all sums paid out by him; but shall receive not more than one per cent, for receiving and paying out moneys belonging to the school fund. The commissions of the county treasurer shall be'fixed by the county commissioners’ court, within the limits prescribed in this act; provided that the county treasurer shall receive no commissions for receiving money from his predecessor or for paying over money to his successor in office; provided, further that the compensation allowed to any county treasurer shall not exceed three thousand dollars per annum in any county of this state.” Acts 1876, p. 292.

It could hardly be contended that the limitation of $3,000 in the above-quoted acts does not apply to all the subject-matter therein contained, including the commission of 1 per cent, for receiving and paying out all moneys belonging to the school fund. It is one complete whole; a single act and paragraph of the law.

In the revision of the statutes of 1879 the above-quoted section 15 was brought forward and incorporated in these articles, to wit:

“Art. 2403. The county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by order of the commissioners’ court as follows: For receiving and paying out moneys belonging to the school fund, not exceeding? one per cent.; for receiving all other moneys for the county, not exceeding two and one-half per cent., and not exceeding two and one-half per cent, for paying out the same.
“Art. 2404. The county treasurer shall receive no commissions for receiving moneys from his predecessor nor for paying over money to his successor in office.
“Art. 2405. The commissions allowed to any county treasurer shall not exceed two thousand dollars annually.”

It will be observed that in article 2405 the sum total allowed county treasurers for performing .the services enumerated in section 15 of the Acts of 1876 and as brought forward in articles 2403 and 2404 in the revision of 1879 was reduced from $3,000 to $2,-000 in accordance with an amendment to said article 2405 as reported by the codifiers. This amendment was enacted by the Legislature on April 2, 1879, and as amended was incorporated in the Revised Statutes of 1879 with articles 2403 and 2404.

The Legislature in 1879 also passed an educational act establishing a system of public free schools throughout the state. That act continued the county treasurer as the custodian of the free school fund for the county and provided that he should be allowed compensation as provided in article 2403.

In the school act of 1884, in connection with the other provisions of that act, ■ the Legislature again provided that the county treasurer should receive compensation as provided in article 2403.

In 1891 the Legislature amended the act of 1884 and took away the discretion theretofore granted to the commissioners’ court to allow a commission not to exceed 1 per cent., but arbitrarily fixed the commission allowed the treasurer at one-half of 1 per cent, for receiving and disbursing the school fund of the county.

The provisions of the statutes thus amended were set forth in the revision of the statutes of 1895 as articles 2467, 2468, and 2469, and have not been amended or changed since, and therefore control the issue here involved. In Vernon’s Sayles’ Texas Civil Statutes 1914 they are articles 3873, 3874, and 3875.

In order that it may be made apparent that the application of the limit of $2,000 in commissions allowed to the treasurer under article 2469, R. S. 1895, include commissions for handling the public free school funds, we quote the three articles as follows:

“Art. 2467. (2403) The county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by order of the commissioners’ court as follows: For receiving all moneys, other than school funds, for the county, not exceeding two and one-half per cent, and not exceeding two and one-half per cent, for paying out the same; provided, however, he shall receive no commissions for receiving money from his predecessor nor for paying over money to his successor in office.
“Art. 2468. The treasurers of the several counties shall be treasurers of the available pufylic free school fund and also of the permanent county school fund for their respective counties. The treasurers of the several counties shall be allowed for receiving and disbursing the school funds one-half of one per cent, for receiving, and one-half of one per cent, for disbursing, said commissions to be paid out of the available school fund of the county; provided, no commissions shall be paid for receiving the balance transmitted to him by his predecessor, or for turning over the balance in his hands to his successor; and provided further, that he shall receive no commissions on money transferred.
“A!rt. 2469. (2405) The commissions allowed to any county treasurer shall not exceed two thousand dollars annually.”

Prom the inception of the legislation on the subject and until the public free school funds were placed in depositories by the act of 1009 the Legislature dealt with the commissions allowed the county treasury for collecting and disbursing said funds along with and in connection with that officer’s services in collecting and disbursing the county’s fund, and the limit of $2,000 uniformly followed both provisions and necessarily included both.

The conclusion is irresistible that said limit applies to and includes the commissions allowed the treasurer for handling the county’s funds and also for handling the free school funds. Thus the Legislature fixed a maximum of $2,000 which the county treasurer might receive and retain from the county funds and the school funds combined.

The Court of Civil Appeals considered that this issue controlled the entire case, and therefore discussed no other issue, but reversed and remanded the case to the district court for new trial with instructions.

Under our holding in the case of Holland v. Nimitz et al., 239 S. W. 185, opinion by Associate Justice Greenwood delivered March 15, 1922, it is within our jurisdiction and becomes our duty to pass upon ‘‘all questions of law assigned in his petition .by the losing party in the Court of Civil Appeals,” and upon “all assignments of the prevailing party in the Court of Civil Appeals presenting questions of law, to ascertain what judgment ought to have been rendered in that court.” “The Supreme Court wall not refer assignments presenting questions of law within its jurisdiction back to the Court of Civil Appeals simply because such court failed to determine same; but, in the interest of speedier termination to litigation, the Supreme Court will itself determine the assignments.” Southern Pac. Co. v. Walters, 110 Tex. 496, 221 S. W. 264.

Upon a thorough examination of the record it appears that the issues not disposed of by the Court of Civil Appeals involve issues of law only. The case was tried upon agreed facts with the exception of a small amount of oral testimony which was uncon-tradicted.

The most important of these issues is that plaintiff in error, the county of Harris, brought its suit against defendant in error Charlton and his bondsmen on his bond as county treasurer to recover for an alleged shortage in the available school fund and also for commissions alleged to have been wrongfully collected from school fund after he had received the amount of $2,000 allowed by law each year. Said shortage and collections were alleged to have accrued between November 23, 1906, and November 30, 1910. The bond sued on was his bond as county treasurer and not his bond given to protect the available public free school fund as provided by law.

Defendant in error’s second assignment of error in the Court of Civil Appeals is as follows:

“The court erred in rendering judgment in favor of the plaintiff for any part of said $1,499.-02 item, because the undisputed evidence shows that same was collected from the available school fund, and not from any funds belonging to the county of Harris or of which it had legal custody, and this suit was not based on any bond given by the defendant, Charlton, in his capacity as treasurer of the school fund, but was based entirely on his bonds as treasurer of the general county funds.”

The trial court declined to give the county of Harris judgment for a shortage of $1,263.-16 due by the treasurer to the available school fund, because, as he sets out in his findings, the county has no recoverable interest in said shortage, and, if mistaken as to that, because the county did not sue upon the bond given by the treasurer to secure the performance of his duties as to the available school fund. Yet he gave the county judgment for the $1,499.02 commissions on the school funds that he had collected over and above the $2,000 per annum limit. From this $1,499.02 commissions wrongfully retained he deducted $497.52 that the treasurer had also wrongfully collected and retained from county funds over the $2,000 limit in 1907, because, as according to his findings, it was barred by the four-year statute of limitations. It is not apparent to us why this $1,499.02 should be reduced by the amount of $497.52, which, -though barred by limitation, wrns itself an amount wrongfully withheld by the treasurer. Also it is not apparent why the county was held to be entitled to recover on the treasurer’s bond as county treasurer for commissions wrongfully withheld from the school fund when these bondsmen were under no obligation to protect the school funds. As stated in his conclusions, the law requires a separate bond for the protection of the available school fund, and his bondsmen as county treasurer for handling county funds have no connection therewith.

As. trustee for the available school fund, the county was entitled to sue for and recover from the .treasurer and upon his bond given for the protection of the school fund such shortage shown to exist in said fund and such commissions shown to have been collected and retained by him after he had reached the limit of $2,000.

The facts show that defendant in error Charlton collected his limit of $2,000 between December 30th and May 1st eaeh year from commissions on county funds before he made any collection of commissions from the school funds; that the fiscal year as school treasurer ends tie last of August. Plaintiff in error, Harris county, insists that both the county and school funds should pay a part of the treasurer’s salary in commissions, and that therefore it is entitled to recover and receive as its own these commissions wrongfully collected from the school fund.

The commissions accrued to the benefit of the county treasurer as he handled the various funds intrusted to his care. Under article 928, R. S. 1895, he was required to make reports to the county commissioners’ court at each regular term thereof, but he was handling both the funds of the county and of the available school fund from his induction into office, and he was entitled to commissions upon the funds so handled as they were received and disbursed by him.

When his limit of $2,000 was reached in collecting and disbursing these funds, in whatever month, then his right to collect and retain further commission from either fund ceased.

Defendants in error in their motion for new trial in the district court and in their assignments in the Court of Civil Appeals urgently insist that the pleadings and proof fail to allege or disclose when the items constituting the various sums sued for were wrongfully collected, and fail to show how much was collected and not accounted for during the period covered by any one of the three bonds, and on account thereof liability could not be fixed against any one set of the treasurer’s bondsmen. Also on account thereof they were deprived of the right to have any item stricken from the .recovery that became delinquent more than four years before the filing of the suit.

Article 1205, R. S. 1895, provides:

“In any suit brought by the state of Texas, or any county of said state, against any officer who has held an office for more than one term and has given more than one official bond, the sureties on each and all of such bonds may be joined as defendants in one 'and the same suit, whenever it is alleged in the petition that it is difficult to determine when the default sued for occurred and which set of sureties on such official bond is liable therefor.”

Before this article was enacted, Chief Justice Stayton, in the case of Screwmen’s Benevolent Association v. Smith, 70 Tex. 168, 7 S. W. 793, said:

“It would seem, when actions have to be brought against two sets of sureties on official or like bonds, given by a principal and different sureties, to secure the faithful performance of duty by the principal, for different terms, the one succeeding the other, that one action against the principal and all the sureties ought to be permitted when the plaintiff is unable to state and prove clearly where a misappropriation of funds occurred, and it may be that legislation upon this subject ought to be had.”

From the agreed facts upon which the case was tried we quote the following:

“It is agreed that all the matters involved in this litigation were acts transpiring and errors occurring by the defendant, James Charl-ton, in his official capacity as county treasurer of Harris county, Tex., and as treasurer of the permanent and available school funds of said Harris county, Tex., and that by reason of his tenure of office, from the 23d day of November, 1906, until the 30th day of November, 1910, it is extremely difficult to ascertain and determine just at what period of time any one of the several transactions making up the total involved in the several funds may have occurred.”

The bondsmen of the different bonds had the right and opportunity to have the liabilities between them settled in this action. Skipwith et al. v. Hurt, County Judge et al., 94 Tex. 322, 60 S. W. 423.

As to the issue of limitation, all items sued for which were barred by the four-year statute of limitation were excluded from the judgment of the trial court. Limitation, however, would not run in favor of defendant in error Charlton and his bondsmen against the county of Harris as trustee of the public free school fund. Delta County v. Blackburn, 100 Tex. 51, 60, 93 S. W. 419, and cases therein cited.

We find no error in the judgment of the district court as to the item of shortage $229.5S and the item of overpaid interest on bonds $11.75 in favor of Harris county against defendant in error Charlton and his bondsmen as county treasurer. It is therefore ordered that the judgment of the district court be affirmed in so far as it awards a recovery to Harris county of said items of $229.58 and $11.75, with interest and costs of the district court, and that in all other respects said judgment of the district court be reversed. It is also ordered that the judgment of the Court of Civil Appeals be reversed, and that this cause be remanded to the district court for further proceeding in accordance with this opinion.

CURETON, C. J., took no part in the decision of this case. 
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