66 Tex. 119 | Tex. | 1886
The bond in suit is conditioned as prescribed by law for the security of the general revenues of the city. Article 365, R. S. Its terms are broad enough to cover the treasurer’s defalcation as custodian of the school fund. It is claimed, however, that its scope is limited by the statute, which authorizes the city to assume control of the free schools. The law conferring this authority is contained in chapter 3 of title 78, of the Revised Statutes. It is there provided that the treasurers of cities having the management of the schools shall have the same powers and perform the same duties as are herein prescribed for county treasurers, so far as the same.are applicable. Article 3791.
A sub-division of the same chapter, (articles 3725 to 3732, inclusive,) is entitled ‘ ‘ duties of the county treasurer pertaining to the school fund.” Instead of repeating so much of this sub-division as could be applied to city treasurers, these articles, as far as applicable, are referred to as defining the powers and duties of city treasurers. The only one of these articles prescribing a duty, eo nomine, is 3728, in this language: “Within twenty days after the receipt of his certifi
These considerations lead unavoidably to the conclusion that it was intended that the safe-keeping and disbursement of the school fund in cities having charge of the public schools, should be secured by a special bond. The officer is not trusted upon the faith or responsibility of the general bond. Construing together the laws requiring the two bonds, it seems to us clear that the sureties on the general bond cannot be made liable for a defalcation in the special fund. Henderson v. Coover, 4 Rev., 429; State v. Bradshaw, 10 Iredell’s Law, (N. C.) 229; Brandt on Suretyship, etc., sec. 473.
The view taken by the court below that the reports of the officer were prima facie, and not conclusive evidence against the sureties, is sustained by the weight of authority, and is believed to be supported by the better reason. See note to Boone County v. Jones, 37 Am. Rep., 234, where cases are collated; Wharton on Ev., sec. 22.
The case was tried below without a jury, but the findings of fact do not distinguish the funds in the deficit, and are not adapted to a final disposition of the case on this appeal on the defendant’s liability.as held in this opinion.
The judgment is reversed and the cause remanded.
Reversed and Remanded.
[Opinion delivered April 23, 1886.]