City Nat. Bank v. Presidio County

• Decision Date: 02 May 1894
• Parties: CITY NAT. BANK OF AUSTIN v. PRESIDIO COUNTY et al.
• Court: Texas Court of Appeals

26 S.W. 775

CITY NAT. BANK OF AUSTIN v. PRESIDIO COUNTY et al.

Court of Civil Appeals of Texas.

May 2, 1894.

Error from district court, Presidio county; C. N. Buckler, Judge.

Action by the City National Bank of Austin against Presidio county and others. Judgment for, defendants, and plaintiff brings error. Reversed.

Fisher & Townes and A. S. Walker, Jr., for plaintiff in error. Martin & Burgess, Barnard & McGown, W. W. Turney, and West & Cochran, for defendants in error.

JAMES, C. J.

This suit was for the recovery of judgment on two warrants issued by the county commissioners' court of Presidio county to A. J. Peeler and the firm of Maxey & Fisher, attorneys at law, for legal services in the supreme court of Texas in the cases referred to in our conclusions of fact. The defendant the county of Presidio answered, and alleged among other matters that since the contracting of said warrants the counties of Brewster, Jeff Davis, Buchel, and Foley had been created out of the territory of Presidio county, and that each of said counties was liable for its pro rata share of any indebtedness of Presidio county incurred prior to the creation of said counties, and that the scrip sued on is such an obligation of Presidio county, and said counties are liable for their pro rata respectively; and the answer proceeds, and alleges what the pro rata of each should be, and prays that said counties be cited, which was done. Among other defenses the said counties pleaded the jurisdiction of the court in the form of a plea in abatement on the ground that under the statute (Rev. St. art. 1198, § 17) they were not required to defend in the courts of Presidio county. The judgment was in favor of all the defendants.

The following are the material facts in the case: (1) In 1886 a suit was brought in the name of the state by M. F. Brown, relator, against L. B. Carothers, county treasurer of Presidio county, Tex., alleging, in substance, that in July, 1885, an order was duly made by the county judge removing the county seat from Ft. Davis to the town of Marfa, in pursuance of the result of an election had for that purpose of removing the county seat, etc. That defendant has since said order kept, and then kept, his office at Ft. Davis. 2 S. W. 91. That said treasurer since said order had been guilty of official misconduct in refusing to register certain bonds issued by the commissioners' court for the erection of a county jail and court house at Marfa, and praying for a judgment of the district court removing said Carothers from office. (2) It appears that the said Carothers sued out an injunction against T. T. Harnett, county judge, and the commissioners, to enjoin them from proceeding against him under an order requiring him to register said bonds, and to restrain them from proceeding against him for the purpose of removing him from office, and from interfering with or removing the records of his office to Marfa, or interfering with him as county treasurer. Also, asking for a mandatory writ requiring defendants to no longer retain the county records at Marfa, claiming that Ft. Davis was the county seat. 2 S. W. 523. (3) The above suits were tried and appealed to the supreme court. (4) For the legal services rendered at the instance of the county commissioners' court by A. J. Peeler and Maxey & Fisher, attorneys at law, in the supreme court in said causes, two pieces of county scrip or warrants were issued to them,—one on May 12, 1886, for $500 and the other for $500, on May 13, 1887,—which were duly registered, and had become the property of plaintiff, which were payable out of third-class funds of the county. (5) The county commissioners' court, at a term in December, 1890, ordered the county treasurer to refuse to pay, and the county collector to refuse to receive, any scrip or warrants that were issued for services rendered or material furnished before March 15, 1887. It sufficiently appears that the services of these attorneys were rendered previous to that date. The suit was filed on March 2, 1891. (6) There were orders entered in the minutes of the county commissioners' court retaining said counsel to attend to the appeals in said causes at Austin, appropriating $50 for the purpose of briefing the same, and directing the issuance of the warrants sued on to said attorneys.

There is no assignment of error on the part of defendants in error that questions the conclusion of the trial judge that the absolute refusal by an order of the commissioners' court to pay these warrants was sufficient authority for bringing the suit. If this ruling were asked to be reviewed, our conclusion would be the same. Pruitt v. Durant, 84 Tex. 8, 19 S. W. 281. The issue presented to us is whether or not the county commissioners had the power to contract for the services of attorneys in the appeal cases mentioned. It is conceded that the commissioners have power, as managers of the business affairs of the county, to incur such a liability in cases in which the county as such is directly interested; but defendants in error contend that the county, as a county, has no concern in what place within the county the county seat may be situated, and that the causes in which the counsel were employed were begun and prosecuted by and in the interest of individuals, and sprung from sectional differences. The powers of the county commissioners are defined by law, and it is an elementary principle that they have implied authority to do what may be necessary in the exercise of the duties or powers conferred on them. Waterbury v. City of Laredo, 60 Tex. 519. While it is true that it is immaterial to the county whereabouts within its limits the county seat is situated, it may become deeply concerned in the settlement of where the county seat legally is when a...