On Motion for Rehearing.
If, as is contended by appellee Hidalgo county, the law providing that the treasurer of the county may become treasurer of the drainage district is unconstitutional, there can be no possible basis for a judgment based alone on the bond given by the treasurer of the county to protect county funds. If that law is unconstitutional, the county treasurer had no right to take charge of the money of the district,-and the surety would no more be liable for that than for any other ■money, outside of county funds, appropriated by the treasurer.' Whethei' the law be constitutional. or unconstitutional is of no ■ importance in this case, because in no event did the treasurer’s act in appropriating the district money bind the surety.
If article 2608 is unconstitutional and void, the county treasurer had no more right to touch the money of the drainage district, a subdivision of the couny acting under the authority of a charter from the state of Texas, than he would have had as county treasurer to take possession of the funds of the chartered cities of Mercedes, McAllen, or Edinburg. The drainage district is as much an entity as is the city, and clothed with the authority to “sue and be sued in all courts of this state in the name of such' drainage district, and all courts of this state shall take judicial notice of the establishment of all such districts.” Hidalgo county in this suit has appeared for it as would the next friend for a minor or a lunatic, but that has not destroyed its separate existence as a drainage district. . M'atagorda County Drainage District v. Gaines & Corbett (Tex. Civ. - App.) 140 S. W. 370.
This court has not held, nor intimated, that article 1500, Revised Statutes, “was limited and partially x-epealed by implication by the intention of the Legislature in enacting the drainage districts” as claimed by the appellee. The court simply construes the article which holds the surety liable on a treasurer’s bond when he fails to “faithfully execute the duties of his office and pay over according to law all moneys which shall come into his hands as county treasurer.” If articles 2607 and 2608 are unconstitutional, as strenuously insisted by Hidalgo county, then it was not possible for the county treasurer to be faithfully executing his office when he collected money -which did not belong to the county and to which neither he nor the county had any right whatever. If the two articles are constitutional, then the treasurer could not have lawfully come into possession of the money of the district except by complying with the provisions of the-two ai-tieles of the Statutes. The county has no right, title, or interest in the money belonging to the drainage district, and its officers have no authority to handle such money in any way except as provided by the Drainage Act. Connor v. Zachry, 115 S. W. 867, 117 S. W. 177, 54 Tex. Civ. App. 188. The case cited is in point and decisive as against the claim that the surety is liable for. *271misappropriation by tire county treasurer of the drainage district fund.
Tliis court declines to taire the articles 2600 to 2607, inclusive, and construe them separately from article 2608 and in such a way as to nullify the last named article. All of the articles were enacted in 1911 except 260S, which was enacted in 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914), in lieu of an article 2608 and 2609 as enacted in 1911. The effect of the amendment was to give the drainage district absolute control over its funds. Article 2608 must be construed as though it may have preceded articles 2600 to 2607, inclusive.
A more careful scrutiny of the petitions of appellees leads us to the conclusion that, unless Linesetter he liable under his bond as county treasurer, there is no basis in the pleadings for a judgment against him. We have concluded that the ends of justice would be more nearly attained by reversing the whole judgment and rendering it as heretofore done in favor ,of the surety company, and remanding the cause, so that the pleadings as to Linesetter may be amended if so desired.
Reversed and rendered as to the surety company, and reversed and remanded as to Linesetter.