1875.1 THE STATE v. BROOKS. 71
Opinion of the court.
for money collected for taxes is authorized by law. (Pas.
Dig., art. 7638.)
Every trustee or agent is under a legal obligation to account
to his principal whenever called upon, and upon his
refusal an action lies. It has been determined that no suit
could be maintained against a deputy sheriff for money
collected on execution by him and in his hands, but that
the party entitled to the money must look to the sheriff.
(Crocker on Sheriffs, sec. 19; 2 Comstock, N. Y., 126.)
It is very clear that had the indictment been drawn
under another clause in art. 1854, and appellee indicted as
a clerk or other person employed about the office of a receiver
or depositary of public money, it would have been
GOULD, ASSOCIATE JUSTICE.-We are asked to reconsider
this case, on the ground "that the court erroneously held
in the opinion that appellee, as deputy sheriff, was an independent
officer known to the law, and as such a receiver
or depositary of public money."
The argument, briefly stated, is that the Constitution
creates the office of sheriff, and imposes on him the duty
of the collection of taxes, and that it is not competent for
the Legislature to assign this duty to any other independent
officer. Whilst the authority of the deputy sheriff to
collect taxes is admitted, it is said that in doing so he acts
for and in the name of the sheriff, and not as an independent
officer. Hence it is said he can only be indicted for
embezzlement as a clerk or employee, and not as an officer.
If the statute uses the word officers to designate only independe
nt officers known to the Constitution, the objection
is well taken. If, on the other hand, the act had expressly
declared deputy sheriffs to be " officers" within its meaning,
or if, though not so declared, such is proved to be its
proper construction, then the indictment properly charges
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 March 11, 2014.