70 THE STATE v. BROOKS. [Tyler Term,
Argument for rehearing.
perform a particular service or duty, this of itself amounts
to a prohibition, and the Legislature cannot devolve this
duty upon another and different officer. (Cooley's Const.
Lim., sec. 64; Field v. People, 2 Scam., 83.)
The Legislature can no more create the independent
office of deputy sheriff, and make him the collector of taxes,
than it can authorize the justices of the peace to grant the
writs of habeas corpus, injunction, and other writs which,
the Constitution says, may be granted by the judges of the
District and Supreme Courts.
We do not deny the authority of the deputy sheriff to
collect the taxes. The office of sheriff was created by the
framers of our present Constitution, with reference to the
well-known and long-accustomed right of that officer to appoint
deputies who acted for him and in his name in all
matters appertaining to his official duties; and, independent
of the statute, the deputy would be authorized to collect
the taxes, not as an independent officer, but for and in the
name of his principal and superior, who is the sheriff, and
to whom alone he is accountable.
There is no trust relation between the deputy sheriff
and the State; no accounts are kept with the deputy, no
drafts are or can by law be drawn upon him, and the statute
is silent -as to where, how, or with whom he shall
make his settlements, or to whom he shall deliver the public
money which may come into his hands. The name of
the sheriff alone appears upon the books of the Comptroller,
and against him suit must be instituted for the recovery
of any taxes collected by him or his deputy, and thei
statement of the sheriff's account upon the books of the[
Comptroller is made evidence of the indebtedness of thel
sheriff if the balance of account should be against him inl
an action against the sheriff and his bondsmen. This could
not be the case in an action against the deputy; and the1
statutes upon the subject all show that it is the sheriff who
is responsible to the State, and no suit against the deputy
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed May 5, 2015.