American Nat. Bank of Austin, Tex., v. Sheppard
| Decision Date | 27 October 1943 |
| Docket Number | No. 9386.,9386. |
| Citation | 175 S.W.2d 626 |
| Parties | AMERICAN NAT. BANK OF AUSTIN, TEX., v. SHEPPARD et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; J. D. Moore, Judge.
Suit by the American National Bank of Austin, Texas, against George H. Sheppard and others to enjoin each of the defendants from further interfering with and preventing the payment of State General Fund Warrant No. 196,172c, which had been issued by the comptroller, signed by the treasurer and delivered to the plaintiff under an appropriation. From a final judgment sustaining a plea to the jurisdiction and dismissing the suit, the plaintiff appeals.
Affirmed.
Cofer & Cofer, of Austin, for appellant.
Gerald C. Mann, Atty. Gen., and R. W. Fairchild and Ocie Speer, Asst. Attys. Gen., for appellees.
Appeal by the Bank (American National Bank of Austin, Texas) from a final judgment sustaining a plea to the jurisdiction and dismissing a suit, brought by the Bank against the State Comptroller, State Treasurer, and Attorney General, to enjoin each of them, "from further interfering with and preventing the payment of State General Fund Warrant No. 196,172c." The warrant was dated June 12, 1941, and had been issued by the Comptroller, signed by the Treasurer, and delivered to the Bank under an appropriation in S.B. 115, Ch. 473, p. 758, Gen.Laws, 47th Leg. (1941). August 5, 1941, before the warrant was presented to the Treasurer for payment, the Comptroller addressed a letter to the Treasurer, requesting that he "place stop payment against" the warrant. This letter copied in full a letter from the Attorney General to the Comptroller (in response to a letter, dated July 30, 1941, of the latter to the former requesting an opinion upon the validity of S.B. 115), in which the former held S.B. 115 unconstitutional. The plea to the jurisdiction was grounded upon the proposition (substantially stated) that the relief sought, though restraining in form, was mandatory in substance, in that it was tantamount to a mandate to the Treasurer to pay (or register for payment in its proper order) the warrant, jurisdiction to award such relief being vested exclusively in the Supreme Court by Art. 1735, R.C.S. The correctness of this proposition presents the controlling question in the case.
The following brief statement of the pertinent facts, gleaned from the record and other sources of judicial knowledge, will suffice to a clear understanding of the above question. The general appropriation bill for the A. & M. (Agricultural & Mechanical College) for the fiscal year ending August 31, 1917, contained the item, "For a college auditorium ......... $1,000,000," which amount was reduced by the Governor (whether validly or not does not concern us here) to $100,000 (p. 104, c. 32, Gen.Laws, 1st C.S. 34th Leg. 1915). Contract was let for erection of the building, but before its completion and after warrants had been issued for $91,138.38 the contractors defaulted and to complete the building the Bank loaned the Regents of A. & M. approximately $30,000. In 1937 (Gen. Laws, R.S. 45th Leg., c. 440, p. 919), the Legislature appropriated $8,861.62 "to reimburse" the Bank for "money advanced" on this account, with the proviso, however, that before payment the claim should "have the approval of the State Comptroller, the State Auditor and Efficiency Expert, and the Attorney General." King (the Auditor and Efficiency Expert) refused approval; whereupon the Bank, in a mandamus suit in the district court, obtained a judgment requiring him to do so. Appeal from that judgment was dismissed by this court on the ground that notice of appeal had not been properly given. King v. American Nat. Bank, Tex.Civ.App., 131 S.W.2d 748. January 27, 1940, the Attorney General, in an opinion reviewing the history of the claim, advised the Comptroller that the judgment in the King case was not binding on the State, and that the claim and appropriation for its payment were invalid on various specified constitutional grounds. S.B. 115, passed at the next session of the Legislature, reappropriated the sum, reciting that the claim was "a just obligation" and had been "approved by the final judgment" in the King case, "which judgment is conclusive upon the State of Texas and all of its officials." Issuance of the warrant and stop payment order ensued.
It is the contention of the Bank that the judgment in the King case was binding on the State, and that it was so enacted by the Legislature in S.B. 115; that all of the alleged acts of the three officials were illegal and violative of its rights: that of the Attorney General in advising the Comptroller that the appropriation was invalid; that of the Comptroller in directing the Treasurer "to place stop payment against" the warrant; that of the Treasurer in respecting the stop payment order; and those of all three officials in "continuing to give effect to said illegal stop payment order, and so depriving plaintiff of its rights to have the same (the warrant) paid, or else numbered and classified in due course as required" by statute.
It will be observed that all of the acts sought to be enjoined have already been performed and could not therefore be enjoined, except those of "continuing to give effect" to those already done. Just what affirmative acts might be included in this "continuing to give effect" is not disclosed. To undo what has already been done necessarily requires affirmative action; that of the Attorney General in withdrawing his opinion; that of the Comptroller in withdrawing the stop order; and that of the Treasurer in not "respecting" such action. Jurisdiction to compel any of these acts is vested exclusively in the Supreme Court. If these three officials and their successors to the end of time should simply refuse to act in respect to the subject, and do nothing not already done before this suit was filed, the Bank would not be one step nearer collecting the warrant than it was the day it filed suit.
It is obvious that the only relief which would in any degree promote the Bank's interest is mandatory and not restraining. The warrant has been issued and the only impediment to its payment is the refusal of the Treasurer to pay or to do certain things ("number, classify," etc.) incident to its payment in due course. Neither payment nor any of these acts can be compelled except by the Supreme Court. Conceding, arguendo, that the King case judgment is res judicata of the validity of S.B. 115 (), acts on the part of the Treasurer essential to payment of the warrant are purely ministerial in character, the compulsion of which is in no way trammeled by any acts, whether of omission or of commission, past or prospective, of the Attorney General or Comptroller. But even if there were such latter acts, their impediment could be removed by the Supreme Court by mandamus or, if need be, by restraint as ancillary to mandamus against the Treasurer. It may not be inappropriate to observe, in passing, that it would be a strange doctrine that would warrant restraining the Attorney General from giving advisory opinions to heads of State departments, a duty enjoined upon him by statute (Art. 4399, R.C.S.). While the petition has been drawn, with obvious meticulous care, to avoid the semblance of seeking mandatory relief, in essence and effect it presents no other objective. To restrain nonaction is essentially to compel action. This was expressly held in State Highway Comm. v. Tengg, Tex.Civ.App., 57 S.W.2d 929. We hold the trial court correct in sustaining the plea to the jurisdiction and dismissing the case.
One other question (one of practice) remains: correctness of the trial court's refusal of the Bank's request for leave to amend after the jurisdiction plea was sustained. The judgment was rendered December 14, 1942, and the term of court adjourned January 30, 1943. No amended pleading was tendered and the bill of exceptions taken to the court's ruling (filed December 29, 1942) does not intimate, nor is there suggestion in the record or brief, in what way the petition might be amended so as to show jurisdiction in the district court. The Bank contends that the plea was one in form only, and was in essence a demurrer or exception; because it asserted no fact but urged only that the petition showed want of jurisdiction on its face; and that the right to amend, after sustaining a demurrer,...
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