Cameron v. Earnest, 8540.

• Decision Date: 05 November 1930
• Docket Number: No. 8540.,8540.
• Citation: 34 S.W.2d 685
• Parties: CAMERON et al. v. EARNEST et al.
• Court: Texas Court of Appeals

34 S.W.2d 685

CAMERON et al. v. EARNEST et al.

No. 8540.

Court of Civil Appeals of Texas. San Antonio.

November 5, 1930.

Rehearing Overruled January 21, 1931.

Appeal from District Court, Hidalgo County; J. E. Leslie, Judge.

Suit by D. C. Earnest and others against A. W. Cameron and others, in which the State intervened. From an adverse judgment, the defendants appeal.

Reversed and rendered.

Don A. Bliss, of San Antonio, E. A. McDaniel, of McAllen, and Claude Pollard, of Austin, for appellants.

R. L. Bobbitt, of Austin, Geo. G. Clough, of Houston, Grade Callaway, of Edinburg, and B. D. Kimbrough, of McAllen, for appellees.

COBBS, J.

The state of Texas, intervener, D. C. Earnest, J. E. Berry, P. W. Perkins, B. S. Graham, and A. L. Nelson, all the plaintiffs, except the state of Texas, intervener, claiming to be taxpaying citizens of Hidalgo county, Tex., brought suit against A. W. Cameron, individually, and as county judge and member of the commissioners' court, and against W. D. Chadick, Robert Henderson, S. M. Hargrove, and W. L. Lipscomb, individually and as members of the commissioners' court; and also against O. Em Jones, individually, and as tax collector of Hidalgo county, Tex., G. W. Walton, as county treasurer of Hidalgo county, Tex., O. T. Liles, as county auditor of Hidalgo county, Tex., and J. C. Epperson, as defendants.

The plaintiffs prayed for a writ of injunction restraining and prohibiting the carrying out of a certain contract between the commissioners' court of Hidalgo county and J. C. Epperson; and for judgment rendering said injunction perpetual and cancelling and declaring void said contract. They also prayed for judgment against said Epperson for the sum of $20,000, and also for judgment against the members of the commissioners' court and O. Em Jones for said amount.

All the defendants filed responsive pleadings and answers.

The case was tried by the court without a jury, and judgment rendered in favor of appellees against J. C. Epperson.

The contract between the commissioners' court and Epperson recited the following matters, to wit:

"Whereas, the Commissioners' Court of Hidalgo County, Texas, did on December 31, 1928, enter into a contract with J. C. Epperson, a practicing attorney of said County to collect all delinquent state, county and political subdivision taxes, therein agreeing to pay said attorney fifteen per cent of all such taxes, penalties and interest as his compensation, and did thereafter on, to-wit: the 1st day of April, 1929, enter into a contract with Fidelity Abstract & Title Company of Edinburg, Texas, for the furnishing of lists of owners and holders on each tract of land delinquent for such taxes and to make necessary maps and plats therein agreeing to pay said Abstract Company ten per cent of all such taxes, penalties and interest as its compensation; and

"Whereas, the said J. C. Epperson, and the said Fidelity Abstract & Title Company have tendered back their said contracts and requested this Court to relieve them from said contracts and cancel the two aforesaid contracts, without further liability on either of the parties thereto from this date and said contracts have accordingly been cancelled and annulled; and

"Whereas, the said J. C. Epperson has agreed to perform all the services provided for in the two aforesaid contracts for and in consideration of an amount equal to twenty-five per cent (25%) of all State and County Taxes, penalties and interest, delinquent and to become delinquent during the next year and in addition thereto has agreed to bring the Plat Book or Block Map system, of this county down to March 1, 1930, without any additional charge therefor and without any charge therefor whatsoever."

Simultaneously with said Epperson's and Fidelity Abstract & Title Company's throwing up of their separate contracts with the commissioners' court, the said Epperson assumed the performance of both contracts, as shown by the above quotation.

Though the findings of the court and the briefs of the parties are very lengthy, the questions involved are short enough. It involves largely the powers of the commissioners' court to make the contract. The statute gives the court the power to make such a contract. As a condition precedent, however, it must first give the county attorney a notice of thirty days in which to bring the suit.

There are so many assignments and propositions covering the same subject, we shall not discuss them separately, but have passed upon and considered all of them.

The county attorney Buchanan was notified in writing thirty days before December 31, 1928, to bring suits for delinquent taxes, and he appeared before the commissioners' court and refused to bring the suits saying that it would cost him too much. He was re-elected as county attorney at the November, 1928, election, and his new term of office began January 1, 1929, and therefore it was not necessary to give him another notice. The commissioners' court was authorized to make the contract with Epperson, with reference to the compensation to be paid for collecting taxes that would be delinquent on the 1st day of February, 1930, during the life of, but after the date of, the contract.

While the contract might be excessive and unreasonable in its terms for the work to be done and the service to be performed, it is not so excessive as to raise the presumption of fraud. To entitle Epperson to his compensation, it was not necessary that Epperson should bring suit on each tract of land, but the commissioners' court had the right to pay him a commission on all the delinquent taxes paid after the contract was entered into. The contract does not obligate him to enforce collection by suit, but provides that he shall assist the county attorney of Hidalgo county in the collection of all taxes delinquent and to become delinquent on February 1, 1930, and obligated Hidalgo county and the state to pay, through the tax collector, a sum of money equivalent to 25 per cent. of all delinquent taxes. The contract did not confine the abstracts to be prepared to lands upon which taxes were delinquent and which were assessed as unknown or unrendered. Epperson's compensation for the preparation of said abstracts was not made contingent upon the payment of delinquent taxes on lands on which said abstracts were made prior to payment of taxes. The contract did not limit Epperson's compensation to a percentage of state and county taxes then delinquent on real estate, as contemplated by law, but fixed and measured said defendant's compensation by a percentage of all taxes collected by the tax collector of Hidalgo county, Tex., after September 16, 1929, and becoming delinquent up to February 1, 1930, thereby including, not only delinquent taxes upon real estate, but those upon personal property and those of insolvent taxpayers, which plaintiffs claimed was not authorized by law.

The contract with the defendant Epperson being for the making of complete abstracts of lands in said county and for the collection of delinquent taxes, it did not make any difference whether these taxes became delinquent after said contract was made or before. Articles 7335, 7344, R. S. 1925; Cherokee County v. Odom, 118 Tex. 288, 15 S.W.(2d) 538; Commissioners' Court v. Wallace, 118 Tex. 279, 15 S.W.(2d) 535.

Where the commissioners' court acted upon a matter within its power and jurisdiction, in the absence of fraud, no court has the right to set its decision aside. It is final and free from controversy. No other court has the right or power to interfere with or control the discretion of such court. McQuillin's Municipal Corporations, vol. 1, pp. 975, 976; 7 Ruling Case Law p. 942, § 18; 15 Corpus Juris, p. 556, § 252; City of Austin v. Nalle, 85 Tex. 549, 22 S. W. 668, 960; Lockwood v. Portland (C. C. A.) 288 F. 480; Dailey v. New Haven, 60 Conn. 314, 22 A. 945, 14 L. R. A. 69; Seward v. Town of Liberty, 142 Ind. 551, 42 N. E. 39; Wells v. Atlanta, 43 Ga. 67; Semmes v. Columbus, 19 Ga. 471; City of Atlanta v. Holliday, 96 Ga. 546, 23 S. E. 509; Brown v. Sebastopol, 153 Cal. 704, 96 P. 963, 19 L. R. A. (N. S.) 178; Sacramento County v. Southern Pacific Co., 127 Cal. 217, 59 P. 568, 825; Fleener v. Litsey, 30 Ind. App. 399, 66 N. E. 82; Shinn v. Cunningham, 120 Iowa, 383, 94 N. W. 941; Disbrow v. Board of Supervisors, 119 Iowa, 538, 93 N. W. 585; Hot Springs v. Curry, 64 Ark. 152, 41 S. W. 55, 56; Board of Com'rs of Vigo County v. Davis, 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515; In re First Nat. Bank of Hillsboro, 25 N. D. 635, 146 N. W. 1064, L. R. A. 1915C, 386; Hays v. Ahlrichs, 115 Ala. 239, 22 So. 465; Lancaster County v. Lincoln Auditorium Ass'n, 87 Neb. 87, 127 N. W. 226.

There are no facts stated by which the court can determine whether or not the compensation that defendant Epperson may receive will be grossly excessive and unconscionable or unreasonable and amount to a fraud. Kissinger v. Hay, 52 Tex. Civ. App. 295, 113 S. W. 1005; Seward v. Town of Liberty, 142 Ind. 551, 42 N. E. 39; 43 C. J. p. 310.

The court erred in his alternative conclusion that the contract could not legally include the taxes for the year 1929 to become delinquent as of February 1, 1930. Cherokee County v. Odom, supra; Commissioners' Court v. Wallace, supra.

The court erred as a matter of law in holding the amount contracted to be paid was so grossly excessive in proportion to the work to be done that it shows an abuse of discretion and ought not to be enforced. If the price contracted to be paid was excessive in amount, that would not mean the entire contract was void, because the court acting within its power and discretion had the right to enter in the contract.

The testimony showed that over one-half of the county was what was called bulk stuff, and the block and plat map system did not cover this at all, and all of this would have to be platted and mapped by Epperson showing the owner of each tract, and a sufficient...