Allbright v. Governor of Texas

| Tex. | Jul 1, 1860

Bell, J.

The parties to this suit have not taken the pains to make this record as intelligible by us as we could desire. We presume, however, that the expression “-record assessment,” employed by the comptroller in the statement of the account of the appellant, means the assessment of that property situated within the county which is owned by non-residents of the county. Nearly the whole of the account, as stated against the appellant, appears to consist of the amounts due upon these “ record assessments” for the two years, 1846 and 1847. The two letters written by the comptroller to the appellant, which were offered in evidence, and ruled out, refer to the collection of this description of tax. We can perceive no reason why these letters should have béen regarded by the court as irrelevant to the issue, or why they should not have been admitted in evidence. These letters instruct the appellant to desist from the sale of property for the purpose of collecting the non-resident assessment, until he should receive further instructions from the comptroller’s office. These letters were written in October, 1848, a very short time after the appellant executed his bond, and in July, 1850, a very short time before the appellant’s term of office expired. It is also to be remarked that, by the provisions of the law of 1848, the bond of the assessor and collector was only intended to secure the collection and prompt payment, according to law, of the taxes for one year. The law provided that the bond should be renewed at the August Term of the County Court of each year. The sureties on the bond here sued on were only liable, then, for the acts of the appellant during one year, and not during his whole official term. It is beyond all question that the assessor and collector was subject to the instructions of the comptroller. The various statutes on the subject of the assessment and collection of taxes, have each contained a provision that the assessor and collector should use the forms and pursue the instructions of the comptroller of public accounts. We think, therefore, that the letters which were offered in evidence, ought to have been admitted. If the appellant has collected the public money, and has failed to pay it over to the State, as it was his duty to do, the State can certainly show the fact, without asking the court to indulge in any presumptions or conjectures on the subject.

We have not had our attention called to any statute which authorizes a suit like the present to be maintained on the mere statement of an account by the comptroller. The fifth section of the act of February 11, 1850, entitled “ an act to provide for settling the fiscal affairs of the late Republic of Texas,” authorized a transcript from the books of the comptroller, certified by him and authenticated under the seal of his office, to be admitted in evidence in suits against the defaulting officers of the Republic;. but this statute has no application to suits against the officers of the State of Texas. Neither does the 89th section of the District Court act of 1846, apply to a mere statement of an account on the books of the comptroller’s office. The section referred to provides that “ copies of the records of all public officers and courts of this State, certified to under the hand and seal (if there be one) of the lawful possessor of such records, shall be admitted as evidence in all cases where the records themselves would be admissible.” This provision cannot extend to an account stated on the books of the comptrollers office, by the comptroller himself, or under his direction; because to give the statute this meaning, would enable the comptroller to furnish the evidence to support any suit which he might think proper to advise the State’s attorney to institute. Of course the official bonds, the assessment rolls, receipts, vouchers, and whatever documents are properly records of the comptroller’s office, are within the meaning of the statute, and copies of them, properly certified and authenticated, are admissible in evidence, as the records themselves would be. For aught that is made to appear to us, the objection to the admissibility in evidence of the statement of the account by the comptroller was well taken. Such a paper would" not be admissible unless its admissibility is authorized by statute. If there be any such statute, it has not been shown to us. Because of the error of the court below in refusing to permit the letters of the comptroller to the appellant, dated in October, 1848, and in July, 1850, to he read in evidence, the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.