The state's motion for rehearing asserts that the case is not one of circumstantial evidence. We are unable to bring ourselves in accord with this view, and deem a further discussion of the subject unnecessary.
Appellant, in his motion for rehearing, asks that the original opinion be modified, contending that in holding that on the *Page 187 facts the appellant was shown to be a de facto assessor and collector of the City of Lubbock, this court came in conflict with the decision of the Commission of Appeals sanctioned by the Supreme Court in the case of Odem v. Sinton Independent School District, reported in 234 S.W. 1090. The facts are set forth in the original opinion. By a special act of the Legislature, the Sinton Independent School District was created and therein were provisions for the appointment of a district assessor and collector of taxes, and the requirement that such officer make bond payable to the president of the board. G. L. Cellum was appointed to the office by the school board, and at the time of such appointment, Cellum was assessor and collector of taxes of the town of Sinton, situated in the school district mentioned. Cellum accepted the office of assessor and collector of taxes of the school district, but did not file oath or bond. Odem, a taxpayer, brought suit to enjoin the collection of the school district tax on the ground that Cellum was not its legal assessor and collector. The trial court and the Court of Civil Appeals denied the relief sought by Odem. A writ of error was granted by the Supreme Court and the case referred to the Commission of Appeals. A reversal was ordered, the court holding that by reason of Cellum's conduct in retaining the city office and refraining from complying with the law in the matter of oath and bond in the district office, he was neither a de jure nor de facto officer of the school district. It was the position of the Court of Civil Appeals that Cellum was a de facto officer of the school district. See Welder v. Sinton Independent School District, 218 S.W. 107.
In the opinion of the Commission of Appeals in the case of Odem v. Sinton Independent School District, 234 S.W. 1090, stress is laid upon the fact developed upon the trial that Cellum's purpose in failing to take oath and give bond as an officer of the school district was in order to evade the constitutional prohibition against the holding of two offices of emolument at the same time.
The points of difference between the case at bar and the one under discussion seem marked and important. In the civil case, the officer's acts were attacked by a citizen as illegal, claiming that his property rights were illegally affected by an individual who was clothed with no legal authority; that the individual was ineligible to appointment, and with the knowledge and concurrence of the appointing powers, refrained from complying with the constitutional and statutory demand that he make oath *Page 188 and bond, expressly to evade the effect of the provision of the Constitution which forbid the holding of two offices of emolument by one individual at the same time. In the civil case, moreover, the person in question was attempting to hold the offices of two distinct public corporations, namely, the city and the school district, and enjoying compensation from each.
In Art. 16, Sec. 40, of the State Constitution the following is found:
"No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of the peace, county commissioner, notary public, and postmaster, unless otherwise specially provided herein."
It has been said by the Supreme Court that one qualifying for the second office thereby vacates the first office. However, in making that declaration, this language is used:
"The general rule, therefore, that the acceptance of, and qualification for, an office incompatible with one then held is a resignation of the former." State of Texas v. Brinkerhoff, 66 Tex. Rep. 47.
See also Biencourt v. Parker, 27 Texas Reports, 562.
Just what significance is attached to the use of the term "incompatible office" is not clear, as the section of the Constitution quoted does not use the word "incompatible." However, in many of the books it is made manifest that there exists a distinction between the occupancy of an office incompatible and one that is compatible. See Words Phrases (old series), Vol. 4, p. 3507; Ruling Case Law, Vol. 22, p. 418, Sec. 63. At common law, the inhibition against an individual holding more than one office was limited to offices that were "incompatible." See Ruling Case Law, supra. The usual method of ousting an officer is by direct attack in a quo warranto proceeding. See Cyc. of Law Proc., Vol. 32, p. 1410. From the holding of the Supreme Court, it seems that where one who holds an office of emolument accepts the appointment and qualifies in another incompatible office, his authority may be challenged in a collateral attack. In the charter of the City of Lubbock adopted under Art. 11, Sec. 5, of the Constitution, the following provision is found:
"Section 22. The commission shall create and consolidate such appointive offices as may divide the administration of the city affairs into such departments, as they may deem advisable, and may discontinue any such appointive officer or department at their discretion, except the office of city manager." *Page 189
In view of this provision, it may safely be said that the offices of city secretary and city collector were not, in the general sense, incompatible, and the same may not be said concerning the office under consideration by the Commission of Appeals in the case of Oden v. Sinton Independent School District, supra. That case, moreover, as stated above, was dealing with the complaint of a citizen against the illegal assessment of his property by a person who was nominally the assessor of a school district, but who was ineligible by reason of his occupancy of an incompatible office and by reason of his purposely refusing to execute the oath or bond as tax assessor and collector of the district office. In the present instance it is not a citizen who challenges the appellant's incumbency, but he, conceding for the purpose of this appeal that he has, with the consent of the governing body, acted as tax collector for years and under circumstances sufficient to constitute him a tax collector de facto, if not de jure, challenges the right of the public to prosecute him for misapplication of public funds received by virtue of his conduct of the office mentioned on the ground that the evidence indicates that while he performed the functions of tax collector, he also performed the functions of city secretary. The commission having power to consolidate the offices of secretary and collector, and assign the duties to one person, and having by long course of dealing recognized the authority of the appellant to act as collector, was not, it is believed, precluded from holding him responsible for his acts as collector by the failure of the city authorities to pass an ordinance of consolidation. In our judgment, the conclusion reached and stated in the original opinion is bottomed on facts and legal principles so variant from those reflected by the decision of the Commission of Appeals in the case of Odem v. Sinton Independent School District, supra, as to render untenable the claim of the appellant that there is a conflict between the opinion of this court and that of the Supreme Court.
The motions for rehearing, filed by both the state and the appellant, are overruled.
Overruled. *Page 190