
    REXAR COUNTY v. DAVIS.
    (No. 6413.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 9, 1920.
    Rehearing Denied June 29, 1920.)
    1.Pleading &wkey;>I!l — Plea in abatement for court, where no question of fact raised by pleadings.
    In action by county, through district attorney, a plea in abatement, denying the authority of the district attorney to institute and prosecute the suit, where there was no question of fact arising under the pleadings to be determined by a jury, should have been decided directly by the court as a matter of law, and not by the verdict of the jury.
    2. District and prosecuting attorneys <§=9 — District attorney not authorized to sue county judge for money misappropriated from funds in keeping of county treasurer; “collection or safe-keeping of public funds.”
    Rev. St. art. 366, authorizing district or county attorney to institute proceedings against any officer intrusted with the “collection or safe-keeping of any public funds,” who is abusing the trust confided in him, held not to empower district attorney to bring action against county judge for money appropriated as salary from county funds in the keeping of the county treasurer; .the county judge not being intrusted either with the keeping or the collection of such funds, and the proper proceeding in such case being against the treasurer, and not the county judge.
    3. District and prosecuting attorneys &wkey;?9 — District attorney may sue county treasurer, without treasurer or commissioners’ court directing the prosecution.
    Under Rev. St. art. 366, district attorney may bring an action against county treasurer to recover loss sustained by reason of payments made under, a statute which has been declared, void by the Supreme Court, regardless of whether the prosecution is directed by the treasurer, under articles 1506, 1506, or. the commissioners’ court.
    4. Judges &wkey;>3 — County judge held not empowered to appoint deputies or assistants to himself.
    Under Rev. St. art. 3903, empowering county judge to appoint deputies or assistants to officers named in articles 3881-3886, and provide for their compensation out of excess fees, the county judge, though named in latter statutes, was not empowered to appoint deputies or assistants for himself and compensate them out of fees collected by him.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by the County of Bexar against J. R. Davis. From the judgment rendered, plaintiff appeals.
    Affirmed in part, and reformed in part.
    D. A. McAskill and Geo. C. Altgelt, both of San Antonio, for appellant.
    Boyle, Ezell'& Grover and J. B. & W. M. Lewright, all of San Antonio, for appellee.
   FLY, C. J.

Appellant, through D. A. McAs-kill, district attorney, instituted suit against appellee for $13,958.31, which it was alleged that he had unlawfully appropriated as salary from funds belonging to appellant, and the sum of $1,242.87, claimed to have been paid out by appellee for clerks. Appellee filed a plea in abatement, denying tbe authority of tbe district attorney to institute and prosecute tbe suit against bim for tbe money described in tbe petition. Tbe court instructed a verdict for appellee on tbe plea in abatement as to salary, and in favor of appellant for money used for clerk bire in tbe sum of $789.74.

Tbe plea in abatement presented a matter of law, and should have been decided directly by tbe court, and not through tbe verdict of a jury. There was no question of fact to be solved by a jury, and it bad nothing to do with it. However, this court will indulge in tbe inference that the verdict would not have been instructed if tbe court bad not determined that tbe district attorney bad no power or authority to represent Bexar county in that part of the suit relating to tbe salary of appellee which was drawn from the treasury of tbe county on warrants given therefor. If tbe district attorney bad no authority to bring, tbe suit under tbe law, be bad no authority to do so, because there was no allegation that the county treasurer or commissioners’ court bad ever authorized said suit to be instituted. It is clear that there was no question of fact arising under tbe pleadings to be determined by a jury. This view of the facts disposes of that part of the first assignment of .error which claims that tbe charge was on tbe weigbt-of tbe evidence. Appellant admitted that—

“Neither McAskill, Altgelt, nor Ward were authorized, empowered, or directed by the county commissioners’ court of Bexar county, or by the county treasurer of said county, or any of them, to bring or prosecute the suit.”

There was nothing to go to a jury, in connection with the authority of tbe district attorney to represent tbe county in that part of tbe suit for tbe salary withdrawn by tbe county judge from tbe county treasury, but that was a question of law for tbe court.

If tbe district attorney bad the authority to sue in tbe name of appellant for tbe salary drawn out of tbe county treasury by the county judge, it is derived by "him from article 366, Revised Statutes of Texas, for there is no other law to which we can lbok for such authority. It is provided in that article: ■

“When it shall come to the knowledge of any district or county attorney that any officer in his district or county, intrusted with the collection or safe-keeping of any public funds, is in any manner whatsoever neglecting- or abusing the trust confided in him, or is in any way failing to discharge his duties under the law, he shall institute such proceedings as are necessary to compel the performance of such duties by such officer, and to preserve and protect the public interests.”

Tbe parties against whom tbe suits are authorized in that article are clearly described as those, first, “intrusted with tbe collection” of any public funds, and, second, those intrusted with the “safe-keeping of any public funds.” The allegations of tbe petition show that appellee, at tbe time be appropriated tbe different sums of money amounting in tbe aggregate to $13,958.31, was not “intrusted with tbe collection or- safe-keeping of any public funds” out of which tbe salary was appropriated, but that tbe funds were in tbe keeping of tbe treasurer of tbe county, and, no matter by whom collected, bad been placed in tbe bands of tbe treasurer for safe-keeping. There is no true process of reasoning by which the power to issue warrants on a fund, or to> 'collect and appropriate tbe amounts named therein, make the commissioners’ court, tbe county judge, or any other member of that court an officer -“intrusted with tbe collection or safe-keeping of any public funds.” Who collected tbe funds drsiwn and appropriated by appellee does not appear in tbe allegations, but it does appear that tbe funds .were in tbe custody of tbe treasurer for safe-keeping. Even if the funds bad been collected by tbe county judge, which they were not, be would not be responsible after they had been placed in tbe keeping of'tbe legal custodian. Undoubtedly, if the funds were misapplied by tbe collector or tbe treasurer, tbe district or county attorney was authorized, and it was made tbe duty of one or Doth, to sue tbe officer making such misapplication. That is all that is held, in so far as applicable to this ease, in tbe case of Terrell v. Greene, 88 Tex. 539, 31 S. W. 631, cited by appellant.

'If, as indicated by tbe facts, tbe treasurer of Bexar county paid out money belonging to tbe county under a statute declared to be void and unconstitutional by tbe Supreme Court (Altgelt v. Gutzeit, 201 S. W. 400); tbe treasurer might be liable, at least for payments made after such decision, unless be recovered it from tbe party to whom it was paid, by a suit for money unlawfully received. It is true that tbe treasurer is required to pay out tbe funds of tbe county “as tbe commissioners’ court of bis county may require and direct,” but it must also be done “as required, by law.” The county treasurer is not only tbe sole custodian of tbe money of tbe county, but it is bis duty to “direct prosecutions according to law for tbe recovery of all debts that may be due bis county, and superintend tbe collection thereof.” Articles 1505, 1506,-Bev. Stats.; Wall v. McConnell, 65 Tex. 397. While this is true, we think article 366 gives full authority to institute suits under tbe circumstances named therein, whether tbe treasurer directs tbe prosecution or not, and whether tbe suit is directed by tbe commissioners’ court or not. Tbe county treasurer has tbe .authority to direct prosecutions according to law for tbe recovery of debts due bis county, but tbe county and district attorneys have the authority conferred in article 366. The latter article refers to abuses of trusts by collectors and custodians of money belonging to public funds, and such suits might be against a treasurer, who Would not be a proper person to direct the prosecution of suits for the recovery of debts that might be due by him. The trouble in this case is the suit for the salary was not brought by the district attorney against the collector or custodian of county money, the only persons he is empowered to sue. Looscan v. County of Harris, 58 Tex. 511. The record fails to disclose that any effort has been made to induce the county treasurer to institute suit for the money paid out under a void law, or that the commissioners’ court, which could act through any three of the commissioners, has been asked to authorize a suit for the money that might be due the county. ' The presumption will prevail that proper action would have been taken, if the officers had been approached on the subject.

Appellee paid out of- fees collected by him the sum of $1,162 to different persons, called by him “clerk or assistant,” which is sought to he justified on the ground that in ¿rticle 3903, Revised Statutes, it is provided that, whenever any officer named in articles 3881 to 3886 shall require the service of. deputies or assistants in the performance of his duties, he shall apply to the county judge of his county for authority to appoint same, and the county judge is required to appoint the requisite number, and provision is made for their compensation out of excess fees. The county judge is mentioned in the articles referred to in article 3903, and it is contended that, as the county judge cannot apply to himself, he is entitled to deputies or assistants. We think, however, that from the very fact that the Legislature has required application to the county judge, and imposed upon him certain duties in determining whether deputies^ or assistants are needed, it was not intended that he should have the authority to appoint and pay deputies or assistants out of fees collected by him. If the Legislature had deemed it necessary for the county judge to have deputies or assistants, it could have provided that the commissioners’ court or the district judge should pass on the’ question of allowing the appointment and pay of such deputies or assistants. The incongruity of having a “deputy county judge,” or an “assistant county judge,” was so apparent that áppellee was disposed to call them “clerks,” when he appointed them, rather than deputies. It is true that he called them “clerks or assistants” in his testimony, but in his sworn account made to the county they are called plain “clerks.” There is no authority in the law for the appointment of such clerks, no matter what they might be called, and consequently no part of the fees collected by the judge cquld be appropriated to their pay.

The trial court allowed the county $789.7-1 out of $1,162, which appellee admitted he had paid, out of excess fees collected by him, to clerks, but. how that sum was obtained is not known to this court. Out of the $1,162 excess fees paid to the clerks, appellee was entitled to 25 per cent., which would amount to $290.50, and that sum, being deducted from the sum of $1,162, would leave a balance of $871.50, which appellee should pay the county. The judgment as to salary is affirmed, but as to fees paid to the clerks will be here reformed, so as to be for $871.50, instead of $789.74, as rendered by the trial court. The costs of this appeal will be equally divided between appellant and appellee.

Affirmed in part, and reformed in part 
      <£fcs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     