Comanche County v. Burks

• Decision Date: 21 February 1914
• Docket Number: (No. 7,865.)
• Citation: 166 S.W. 470
• Parties: COMANCHE COUNTY et al. v. BURKS et al.
• Court: Texas Court of Appeals

166 S.W. 470

COMANCHE COUNTY et al. v. BURKS et al.

(No. 7,865.)

Court of Civil Appeals of Texas. Ft. Worth.

February 21, 1914.

Rehearing Denied March 4, 1914.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Action by Jokkie W. Burks, Treasurer of Comanche County, and others, against Comanche County and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

M. L. Harris, of Comanche, and Wilkinson & Baugh, of Brownwood, for appellants. Goodson & Goodson, of Comanche, for appellees.

CONNER, C. J.

This suit was instituted against Comanche county and the members of its commissioners' court by Jokkie W. Burks, treasurer of Comanche county, joined by the superintendent of its public schools and by the officers and boards of trustees of several independent school districts of the county, and by a number of persons in their individual right as citizens.

The plaintiffs alleged in substance that, in accordance with the Constitution and laws of the state, there had been set aside to Comanche county, as a part of its permanent school fund, four leagues of land, which it was the duty of the commissioners' court to sell and invest the proceeds thereof as collected in interest-bearing securities, as provided in the Constitution, for the benefit of the public free schools of the county; that, under the terms of the Constitution, the principal from the sale of such lands constituted the permanent fund, and the interest derived therefrom constituted the available fund. It is further alleged that prior to November 28, 1891, the commissioners' court sold the land so granted to Comanche county, but instead of investing the proceeds of the sale in securities, as provided by the Constitution, from time to time had diverted portions thereof and appropriated the same to the general purposes of the county, at the same time issuing what was termed "bonds of Comanche county" for the several sums so appropriated bearing 6 per cent. interest; that from one to ten of such bonds, inclusive, had been so issued stipulating for the payment by Comanche county to the permanent school fund of the county the several sums so appropriated, with interest thereon at the rate of 6 per cent. per annum. It was further alleged that a further diversion of the funds to the amount of $237.25 had been made by the action of the commissioners' court in appropriating that amount for other unauthorized purposes. It was further alleged that an auditor had been appointed to state the account against Comanche county, who had reported that the total amount of said unauthorized appropriation was $12,346.52, and that the interest accrued thereon to June 2, 1913, at the rate of 6 per cent. per annum, amounted to the sum of $11,649.68. There are further allegations of the petition to the effect that, within the limit allowed by the Constitution and laws, the commissioners' court could add to its tax levy a sum sufficient to realize, during a series of years, a sum necessary to restore the unauthorized appropriations, and the prayer was for a decree fixing the amount of the permanent school fund which had been so diverted with interest, and for a mandamus compelling the commissioners' court to make the required levy.

The trial was before the court without a jury. He has filed conclusions of fact which we adopt, and upon which he entered judgment fixing the total amount of permanent and available school fund due by Comanche county at $20,695.59, with interest thereon from the date of the judgment at 4 per cent. per annum, from which judgment this appeal has been prosecuted.

It is first insisted that the court erred in overruling appellant's general demurrer. The contentions are that the petition on its face shows an unlawful and an unauthorized appropriation of the county's permanent school fund on the part of the commissioners' court, and that the county cannot be made responsible for the wrongs of its officers. It has been frequently held that in certain cases a county cannot be held liable in damages for the wrongs or negligence of its officers. Heigel v. Wichita County, 84 Tex. 392, 19 S. W. 562, 31 Am. St. Rep. 63. But this rule of nonliability is not of universal application. See McQuillan on Municipal Cor. vol. 6, § 2605, citing numerous cases where the rule has been limited. And we are of the opinion that the principle invoked has no application in this case. Counties, by the express terms of our statute (R. S. 1911, art. 1365), are bodies corporate and politic and act by and through the commissioners' court, composed of the county judge and of the commissioners from the several commissioners' precincts provided by the law. The acts of the commissioners' court, therefore, in good faith performed within the scope, or apparent scope, of the powers committed to it under the Constitution and laws, are the acts of the county and not of the individual members composing the court.

And where counties in their corporate capacities, as contradistinguished from their individual officers, commit a wrong in relation to property in which others are interested, the county, like any other corporation or individual, may be held liable. Thus in Watkins v. Walker County, 18 Tex. 586, 70 Am. Dec. 298, Walker county was held liable at the suit of the owner of certain lands in damages for timber taken from the land by an overseer of roads to repair a highway. In the course of the opinion it was said: "The duty of providing highways for the use of the public has been confided to the counties. The overseers of roads are the legally constituted agents of the counties from which they receive the appointment, and, what they do in the proper and necessary exercise of the authority conferred upon them, the county, in its corporate capacity, is responsible for." The principle announced in the case just cited was affirmed in the later case of Hamilton County v. Garrett, 62 Tex. 602. In Baker v. Panola County, 30 Tex. 87, our Supreme Court affirmed the right of Baker to recover from the county taxes illegally assessed against him and paid under protest. And in Boaz v. Ferrell, 152 S. W. 201, this court held to the effect that Jones county was liable for certain state taxes wrongfully deposited with its county treasurer by a tax collector.

So here, if Comanche county has wrongfully diverted and appropriated funds of which the plaintiffs were the beneficiaries and as to which they have the right to herein complain, as we shall later have occasion to affirm, then we think Comanche county, rather than the several members of its commissioners' court, as is insisted, must be held liable. As further illustrating this conclusion, we cite the case of Gaines v. Newbrough, County Judge, 12 Tex. Civ. App. 466, 34 S. W. 1048, by this court, in which it was held that a county judge, commissioners' court, and sheriff were not personally liable in a suit for damages for false imprisonment by virtue of the execution of a writ by the sheriff, regular on its face, but which the members of the commissioners' court, in a mistaken exercise of a judicial act in fining the plaintiff for contempt, had ordered to be issued. So also in Wright v. Jones, 14 Tex. Civ. App. 423, 38 S. W. 249, also by this court, and in which writ of error was denied, it was held that members of a county commissioners' court were not liable in a civil action to one whose property had been wrongfully taken by the tax collector in pursuance of an order of the commissioners' court to collect a tax levied by them in a district which had erroneously been determined to be within their jurisdiction.

The principle of the cases last noted may be said to be dependent upon the very generally recognized rule that officers, to whom have been committed the power of acting in a judicial or quasi judicial capacity, cannot be held liable for an honest, though mistaken, exercise of their powers. The further pertinent inquiries, therefore, arise as to whether the members of the commissioners' court, in diverting the funds, as alleged, were in the exercise of a judicial function, and whether Comanche county may be held liable as herein sought.

Section 6, art. 7, of the Constitution, so far as applicable, provides: "All lands heretofore or hereafter granted to the several counties of this state for educational purposes, are of right the property of said counties respectively, to which they were granted and title thereto is vested in said counties; and no adverse possession or limitation shall ever be available against the title of any county. Each county may sell or dispose of its lands, in whole or in part, in manner to be provided by the commissioners' court of the county. * * * Said lands and the proceeds thereof, when sold, shall be held by said counties alone as a trust for the benefit of public schools therein; said proceeds to be invested in bonds of the United States, the state of Texas, or counties in said state, or in such other securities and under such restrictions as may be prescribed by law;...