ON appellant’s motion for rehearing.
HAWKINS, Presiding Judge.Appellant insists that we overlooked the evidence heard upon the motion to quash the indictment as set out in the bill of exception complaining of the overruling of the motion.
The bill recites that before pleading to the indictment- in Donley County the motion to quash was filed, and the court there heard evidence on the motion which was, in substance; that two of the grand jurors were over 21 years of age, and under 60, and that neither came within any exception — naming them — which excused the jurors from paying a poll tax. Before the venue was changed to Childress County the motion was renewed, and the same evidence reproduced. When the case was called for trial in the latter county the motion to quash was again made, and the same evidence from the two grand jurors again produced. It is appellant’s position that the question was timely raised and that he has brought himself within the holding in Conklin v. State, 162 S. W. (2d) 416. We find in the motion to quash the ’ following averment: “That Donley County, Texas, in March, 1941, had anl contained more than 800 men, legally qualified for Grand Jury service, who had paid their 1940 poll tax in Donley County, Texas, and that it had and contained more than 60 additional men who were over the age of 60 years and exempt from the payment of a poll tax; that in empanelling the 10 men on the purported Grand Jury it was not made to appear to the court that the requisite number of jurors, who have paid their poll taxes for 1940 cannot be found within the county; * * *” Look ing to the bill of exception we find not one word of evidence supporting said adverment. Without such proof appellant has not brought himself within the rule announced in the Conklin case (supra).
*578The indictment alleges that about the 26th day of December, 1940, “J. W. Adamson was an officer of the Government of said state (Texas), to-wit: was Tax Collector of the Hedley Independent School District” in Donley County, and “was by law as such officer, a receiver and depositary of public money belonging to said Hedley Independent School District; and as such officer by virtue of said office” he had in his possession $131.87 belonging to said District which he converted to his own use.
The Hedley Independent School District was created by special Act of the 34th Legislature in 1915 (Laws of Texas, Vol. 17, page 64). No office of assessor and collector of taxes for said district was created by the Act itself, nor does the Act itself authorize the trustees of said district to create such office. Such power as the trustees had in the premises was by virtue of the general statute on the subject.
Art. 2792 R. C. S. (1025) gives the trustees of an independent school district the right to choose the county assessor and collector to assess and collect the taxes of the school district. Article 2791 R. C. S. (1925) designates the powers and duties of a district assessor and collector (when there is such an office), and provides that he shall give bond to be approved by the president of the board of trustees conditioned for the faithful discharge of his duties and payment to the treasurer of the board all funds coming into his hands by virtue of his office.
The minute book of the Hedley Independent School District Board of Trustees shows the following entry made on December 12, 1938. “Motion made by E. R. Hooker, seconded by H. H. Hall to have Jess Adamson to collect school tax for 1938, and to pay him 1% of the amount he collects, school to buy tax receipts for same. Motion carried.” The evidence shows that Mr. Bounds was collector through 1938, but is silent as to how much authority was obtained. The minutes of the school board further show an entry on November 13, 1939, instructing “Tax Collector Adamson to accept split tax payments,” and then on January 8, 1940, an entry instructing “Tax Collector Adamson to strike the assessments on all church property in the district.
No bond was ever executed by Adamson as district collector of taxes for the Hedley Independent School District. No further orders or designations regarding him were made by the trustees, *579but he performed the duties of collecting the taxes for the district during 1939 and 1940.
"We gather from the record that Adamson had been elected Assessor and Collector for Donley County at the November election in 1938 preceding the order of the school board made on December 12, 1938, but that he did not take the oath of office nor give bond as said county officer until the second day of January, 1939.
It is appellant’s contention that he could not be prosecuted as an officer of the school district, asserting that in law and fact he was not such officer either de jure or de facto. In legal effect we have a situation like that dealt with in First Baptist Church v. City of Ft. Worth, 26 S. W. (2d) 196. It was there claimed that an assessment of taxes was void because the party making the assessment was attempting to hold two offices of emoulment in violation of Article 16, Section 40 of the State Constitution. The law incorporating the Fort Worth Independent School District did not attempt to create the office of assessor and collector of taxes for the district, nor did it authorize the governing body of such district to create such office. In this respect the situation is exactly the same as found in the Act creating the Hedley Independent School District. However, in the Fort Worth independent school district law it was provided that the assessment and collection of taxes for such district should be made by the assessor and collector of the City of Fort Worth. Such a provision is not found in the Act creating the Hedley Independent School District, but the general law (Art. 2792 R. C. S. 1925) accomplishes the same purpose by giving the trustees the right to choose the county assessor and collector to assess and collect taxes for the district. It was held in the Fort Worth case (supra) that no new office of assessor and collector for the school district was created, but that only additional duties were imposed upon the city assessor and collector and that, therefore, there was no violation of said Art. 16, Sec. 40 of the Constitution. In the opinion in the Fort Worth case (supra) we find this significant statement: “No authority whatever can be found in the law creating the school district which would entitle the district to have its taxes assessed and collected by its own officer. In the absence of such provision, no such office existed." (Italics ours.) If this was true in the case mentionel it is also true in the instant case. There can be no officer, either de jure or de facto of a non-existent office. See State v. Gillette’s Estate, 10 S. W. (2d) 984.
*580We are impressed that the school trustee designated appellant as collector of taxes for the school district knowing that he would be the county assessor and collector for Donley County under his election to said office, and that their subsequent acquiescence during the years of 1939 and 1940 in his collection of the taxes for the district was by reason of his position as such county officer. Their selection of him as such officer to collect the school taxes for the district did not create a new office of assessor and collector of the district, but only added to his duties as county assessor and collector the additional duties of collecting for the district. If this conclusion be correct he should have been prosecuted as an officer of the county, to-wit: — as Tax Assessor and Collector of the county, and not as an officer of the district.
We observe that tax receipts for taxes due the school district were signed by appellant not as collector for such school district, but as Tax Assessor and Collector for Donley County. The fact that the trustees never required of appellant any bond to protect the district for taxes collected by him further impresses us with the idea that he was not regarded by the trustees as acting in the capacity as collector for the district, independent of his office as county assessor and collector.
If it-be thought that the act of the school trustees in designating appellant as collector of taxes for the school district created the office of school district collector of taxes, then his subsequent qualification as county assessor and collector on January 2, 1939, vacated the office of district collector, and under the holding in Pruitt et al v. Glen Rose Independent School District No. 1, 84 S. W, (2d) 1004, and Odem v. Sinton Independent School District, 234 S. W. 1090, he could not thereafter be regarded even as a de facto officer of the school district.
If the trustees dealt with appellant as a private citizen when they designated him as collector for the district, and their said act did not create the district office of collector — as heretofore indicated — then appellant should have been prosecuted as the agent of the school district for the collection of the taxes, and not as an officer of the district; for, as contended by appellant, he received the tax money not by virtue of his office, but under a contract with the trustees.
Anyone interested in pursuing the subject further will find by an examination of the notes in 100 A. L. R., 1158, where the *581case of Pruitt et al v. Glen Rose Ind. School District, (supra) is reported, that the conclusion in such case is supported by the great weight of authority.
Apparently the State upon original submission of the present case relied upon Germany v. State, 109 Tex. Cr. R. 180, 3 S. W. 2nd 797, 802. Appellant insists that the holding in the said case is in conflict with those announced in the Glen Rose and Odem cases, (supra). There may be some expressions in the Germany case which appear to present a conflict, but when the facts in the latter case are understood the conclusion reached is thought to be not out of harmony with the conclusions arrived at in the cases referred to.
Germany was prosecuted for misapplication of public funds as an officer of the City of Lubbock. The charter of the city provided for the offices of City Tax Collector and City Secretary, and also provided that the city authorities might consolidate the two offices. The city appointed Germany as City Tax Collector and later also appointed him as City Secretary. The city authorities passed no formal order consolidating the two offices, but under the appointments Germany performed the duties of both offices for a number of years. When prosecuted as the city collector he claimed that he had vacated that office when he accepted the appointment as City Secretary. In the opinion on rehearing is found the following language: “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.” This indicates that in the opinion of the court the facts there present had the same effect as an order of consolidation of the two offices would have accomplished and that the prosecution in the manner followed was proper.
Complaint is renewed in appellant’s motion for rehearing that the court submitted the case to the jury in such manner as authorized a conviction if appellant was the agent or employee of the school district regardless of the averment that he was an officer. This was called to the court’s attention by proper objection to the instructions. The writer is of opinion there is merit in the objections, but pretermits discussion because of the disposition of appellant’s motion on the other grounds discussed.
*582Further consideration has led us to the conclusion that we were in error in our judgment of affirmance. Appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded. The order of dismissal of the prosecution under the present indictment is not here made because the evidence upon another trial might not be the same. What has been said is sufficient to g'overn the State in any further prosecution.