Collins v. Tracy

36 Tex. 546

• Court: Texas Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Evans, P. J.

The question presented in this case, is whether a jiinior commission vacates a former appointment to the office of county treasurer.

The Constitution is silent as to the office of county treasurer; but state Constitutions are made with reference to existing laws, which laws are not changed by the Constitution, except so far as they may be inconsistent with its provisions.

It is obvious that the law providing for the office of county treasurer, and prescribing the duties incident to it, is still in force, only so far as it has not been changed by laws passed since its adoption.

The office of county treasurer is recognized by the Constitution ; but the mode of appointment and the tenure of the office all are left to legislative control.

The act of 28th June, 1870 (12th Legislature), provides that “ The Governor shall appoint one county treasurer, who “ shall hold his office until the next general election in this “ State, or until otherwise provided by law.”

It follows from this that the county treasurer, when once appointed in the mode prescribed by law, has a vested right to his office, and cannot be removed except for cause amounting to a forfeiture of his office.

The principle that the power of removal is incident to the power of appointment, is applicable only in those cases where the office is held at the pleasure of the appointing power, and the tenure not fixed by law as in this case. (Ex-parte Hennen, 13 Peters, 256; Keenan v. Perry, 24 Texas, 253.)

There being no law of this State specially authorizing the Governor to remove a county treasurer from office, it follows that he can only be removed on conviction by a jury, after indictment for malfeasance, nonfeasance, or misfeasance in office. (See Article 5, Section 24, Constitution.)

We think there was error in the judgment of the District Court, and it must be reversed.

¡Reversed.