AUSTIN, FEB. 24, 1939: — Because they are not state officers, members of the faculty of Texas A&M College are eligible to serve as town officers of the newly incorporated city of College Station, Attorney General Mann ruled today.
The opinion was requested by President T. O. Walton of the College and overrules one made by the attorney general's department Dec. 10, last.
This afternoon officers, who are Dr. J. H. Binney, mayor, and Alderman George B. Wilcox, Dr. L. P. Gabbard, Ernest Langford, A. Mitchell and Dr. L. G. Jones, and Same Hopper, city marshall, qualified before a notary public at College Station.
Other officers of the municipality, including city secretary, tax assessor and collector and others which may be required, will be named by Mayor Binney, subject to the approval of the board of alderman. It is expected the organization of the government personnel will be completed shortly.
The decision was brought to the College by Col. Ike Ashburn, who went to Austin for that purpose, and the complete text is as follows:
"Referring to Art. 16, Sec. 33 and 40, of the Constitution, the Attorney General's office rules 'That there are no decisions of Texas courts directly in point. However, the Supreme Court of the state, in Kimbrough vs. Barnett, 93 Texas, 301, defined "public office" as "the right, authority and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating powers, an individual is invested with some portion of sovereign functions of government, to be exercised by him for the benefit of the public.
"In Leymal vs. Johnson, 288 Pac., 858, the District Court of Appeals, of the State of California, had before it the question as to whether a school teacher was an officer, and after quoting from Kimbrough vs. Barnett, supra, and eulogizing the teaching profession at length, holds that a teacher is not an officer of the state.
"In Green vs. Owen, 31, S. W. 2, 1037, the State Supreme Court of Missouri held, the right of office of attorney general of a municipality does not involve title to any office under the state. The office of city attorney of a city is not an officer under the state, but an officer under the city.
"We therefore answer that the members of the College staff are not prohibited by Sec. 33 and 40 of Art. 16 of the Constitution, from holding officer udner the town of College Station. The opinion of this department of date, Dec. 10, 1938, is hereby overruled and withdrawn."