"This suit was originally brought by Austin Bros., a corporation, against Houston county, Tex., Nat Patton, as county judge, the four county commissioners, the treasurer, and tax assessor of said county, as such officers. Recovery was sought against the county for the sum found to be due upon 21 warrants issued by the county aggregating about $7,000, for writ of injunction restraining the officers composing the commissioners' court of said county from approving and allowing any claims payable out of the road and bridge fund of said county, or any subdivision thereof, restraining the treasurer from registering or paying any claim payable out of said road and bridge fund until the debt sued for had first been paid, and for a writ of mandamus against the commissioners' court to compel it to appropriate out of the moneys collected and to be collected from taxes already assessed for roads and bridges a sufficient sum to pay the plaintiff's claim, and that in the event a sufficient sum to pay said claim could not be realized from such moneys, then that said court be required to levy a special tax out of the 15 cents allowable under the Constitution to be taxed for road and bridge purposes sufficient to pay plaintiff's claim. Upon trial judgment was rendered for the defendants and certain intervening parties. Upon appeal from such judgment this court, by an opinion to be found in 226 S. W. 702, reversed the same and remanded the cause, with instructions to retry the same in accordance with the views expressed in said opinion.
"On the 11th day of April, 1921, after the cause had been so remanded, the plaintiff, Austin Bros., filed its first amended original petition, and thereby alleged the sale, delivery, acceptance, and use of certain machinery and material to and by Houston county, and the subsequent issuance and delivery of the warrants sued on in payment for such machinery and material. It alleged that such machinery and material was so sold and delivered in the years 1915 and 1916. It further alleged as follows:
"`That in each and all of the aforesaid warrants where said warrants provide the number of the fund out of which they are to be paid it refers to the general road and bridge fund of said fund created by virtue of the constitutional 15-cent road and bridge tax which the commissioners' court of said county may appropriate for road and bridge purposes within its discretion, and that prior to the issuance of said warrants said court determined that it would apportion the road and bridge money among the several commissioners' precincts of said county, so as to equalize the money among the several precincts in conformity as near as possible with the taxes paid said county by said several commissioners' precincts; that this was done by said court, acting under and by virtue of a purported special road law of said county granting such authority, but in this connection plaintiff says that it did not agree that said warrants should be paid only out of such funds, and said warrants do not provide that they shall be payable only out of such funds, and plaintiff further alleges the fact that said warrants, providing that they were to be paid out of a particular fund, related only to the time of payment, and not to the validity of the claims of plaintiff or its assignor, and that a reasonable time has elapsed since the issuance and delivery of said warrants, and they have not been paid out of said fund, and plaintiff is now entitled to have them paid out of said fund, and plaintiff is now entitled to have them paid out of any fund in the hands of the county or that is lawfully applicable thereto, and plaintiff is
not now restricted to payment out of the several funds named in said warrants.
"`That, at the time said county issued and delivered each and all of the aforesaid obligations, they were issued and delivered in payment of current expenses which were proper and lawful charges against the road and bridge fund of said county, and were for material and supplies sold and delivered to the county for the purpose of constructing, repairing, and maintaining the public roads and bridges in said county. That at the time said bills of goods were sold and delivered to said county, it was within the reasonable contemplation of the parties to such sales that the prices charged therefor would be paid out of the current revenues in the road and bridge fund of said county then on hand or coming into the road and bridge fund from taxation and other sources during and for the year in which such material and supplies were sold and delivered. That there was a fund in each of the years in which the aforesaid warrants were issued properly coming into said road and bridge fund sufficient to pay all of said warrants in the year in which they were issued and delivered, and in which such sales and purchases were made to meet all of said obligations issued by said county during said years, and that the funds with which said warrants were to be paid and out of which they could have been paid were within the immediate control of said county, and it was then and there contemplated that said claims should be paid out of revenues coming into the hands of said county during the year in which such obligations were incurred, or out of revenues collected from taxation and otherwise for said years, and none of said obligations constituted "debts" within the meaning of the Constitution and laws of Texas.
"`That, in the event said warrants herein sued on shall be by the court held invalid, illegal, or unenforceable for any reason whatever, then plaintiff says that the defendant county, lawfully acting through its commissioners' court, ordered the material and supplies set forth above, and the same were delivered to and used by the county for lawful purposes, and the county got the benefit of said material and supplies, and that the prices charged therefor by the plaintiff and its assignor were the usual, reasonable, and customary charges for such material and supplies at that time, and were the prices which the defendant county contracted to pay therefor, by reason of all of which facts the plaintiff is entitled to a judgment against said county upon quantum valebant for any and all such sums of money which the court shall find and determine, if any, of said warrants are so invalid, illegal, or unenforceable, if any, and that the defendant county, in equity and good conscience, should pay plaintiff the reasonable value of said material and supplies as aforesaid.
"`That, in selling and delivering said material and supplies to said county, it and its assignor did not agree that any of said obligations should be made charges upon the revenues of future years, but after the defendant county got said material and supplies and used the same, then of its own accord it issued some of said warrants payable at a future date, but plaintiff never at any time agreed that any of said warrants should be made payable out of the revenues of future years, and in this connection plaintiff says that, although the majority of said warrants issued in 1916 were made payable in February, 1917, it was intended that each and all of them should be payable out of the revenue derived from taxation and otherwise during the year of 1916, and the due dates of said warrants were made in February, 1917, because it was then a well-known fact by the county that the majority of the 1916 revenues would not come into the hands of the county treasurer until after February 1, 1917.
"`That, in the event any judgment shall be rendered in its favor herein, it will have no plain and adequate remedy at law to enforce payment of the same, because the property of the defendant county is not subject to execution, and that it will be necessary for plaintiff to have a writ of mandamus issued, directed to the proper officers of said county, requiring them to make proper provision for the payment of any such judgment, if any, in the manner provided by law.'
"The plaintiff prayed for judgment against the county for the aggregate sum due upon all of the 21 warrants, together with interest on the respective warrants from their respective dates. It prayed in the alternative that, in the event the court should hold that one or more of the warrants were invalid and unenforceable for any reason, then that judgment be rendered in its favor `for the several sums of money represented by said warrants, as the reasonable value of the material and supplies sold and delivered by plaintiff and its assignors to said defendant county, and, in any event, that if judgment is rendered in favor of plaintiff for any sum of money plaintiff be awarded a writ of mandamus directed to the honorable tax assessor and to his successor in office, directing him to assess all of the taxable property in said county, if necessary, at its full and true value in money in the first year after any judgment in this suit in behalf of plaintiff becomes final, and that plaintiff further be awarded a writ of mandamus against the honorable county judge and the four county commissioners of the defendant county, and to their successor or successors in office, commanding them and each of them to approve said assessor's tax rolls as above described on a basis of the full and true value of all taxable...
