Commissioners' Court v. Wallace

• Decision Date: 20 March 1929
• Docket Number: (No. 4598.)
• Citation: 15 S.W.2d 535
• Parties: COMMISSIONERS' COURT OF MADISON COUNTY et al. v. WALLACE et al.
• Court: Texas Supreme Court

Page 535

15 S.W.2d 535

COMMISSIONERS' COURT OF MADISON COUNTY et al. v. WALLACE et al.

(No. 4598.)

Supreme Court of Texas.

March 20, 1929.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by George F. Wallace and others against the Commissioners' Court of Madison County and others. Judgment for defendants was reversed by the Court of Civil Appeals (281 S. W. 593), and they bring error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

A. J. Harper, A. J. Harper, Jr., and W. M. Harris, all of Dallas, E. B. Robertson, of Fort Worth, and Cone Johnson, of Tyler, for plaintiffs in error.

J. M. Brownlee, of Madisonville, and F. L. Henderson, of Bryan, for defendants in error.

PIERSON, J.

On August 10, 1925, the commissioners' court of Madison county entered into a contract with A. O. and M. W. Harper, in substance as follows:

Harper & Harper agreed to make a complete abstract of property assessed or unknown and unrendered upon which taxes were delinquent in Madison county, from 1885 to 1925, inclusive, together with a complete plat and map system or block map of all the lands in Madison county and the cities and towns thereof, and where necessary to make survey of tracts or parcels of land in order to identify the land contained therein, to ascertain the amount of delinquent taxes due by each taxpayer on each separate tract, and to make report to the commissioners' court, showing the excess of land in surveys in the county that had not been rendered for taxes.

As compensation, said Harper & Harper were to receive $7,500 in warrants, to be "paid from the total of the first collections of delinquent taxes, penalty, and interest" due in 24 months, said warrants to draw interest at 6 per cent., and, in addition, they were to receive 25 per cent. of all other delinquent taxes, penalties, and interest to be collected.

Defendants in error, George F. Wallace and others, brought this suit, seeking to enjoin Harper & Harper, the commissioners' court, and the county treasurer of Madison county, parties to the above contract, from enforcing same, and to declare same null and void. The district court granted a temporary injunction, but on motion dissolved same. On appeal, the Court of Civil Appeals for the Tenth District held that under the Constitution and laws of this state the commissioners' court was without power to make said contract, and that same is null and void.

The parties to the contract were attempting to contract under the authority of articles 7335 and 7344 of the Revised Civil Statutes of 1925. Article 7335 reads in part as follows:

"Whenever the commissioners court of any county after thirty days written notice to the county attorney or district attorney to file delinquent tax suits and his failure to do so, shall deem it necessary or expedient, said court may contract with any competent attorney to enforce or assist in the enforcement of the collection of any delinquent state and county taxes for a per cent. on the taxes, penalty and interest actually collected, and said court is further authorized to pay for an abstract of property assessed or unknown and unrendered from the taxes, interest and penalty to be collected on such lands, but all such payment and expenses shall be contingent upon the collection of such taxes, penalty and interest."

Article 7344 provides:

"In counties in which the subdivisions of surveys are not regularly numbered, and in cities or towns in which the blocks or subdivisions are not numbered, or are so irregularly numbered as to make it difficult or impossible for the assessor to list the same, the commissioners' court of such counties may have all the blocks and subdivisions of surveys platted and numbered so as to identify each lot or tract, and furnish the assessor with maps showing such numbering; and an assessment of any property by such numbering on said maps shall be sufficient description thereof for all purposes. Such maps or a certified copy of same or any part thereof, shall be admissible as evidence in all courts. The cost of making said survey and plats shall be defrayed by the county in which said property is situated, and of which said commissioners court ordered the said surveys and plat made and the cost of any map of a town or city shall be paid by such city or town when ordered by the town or city."

In discussing the case the Court of Civil Appeals says: "The commissioners' court cannot create any debt, unless provision is made at the time of creating same for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent. as a sinking fund. Article 11, § 7, state Constitution."

Continuing, the court says: "Under articles 1626 and 1628 of the Statutes, it is provided that all claims against the county shall be registered in three separate classes, and the treasurer is required to place the funds of the county to the credit of the respective fund for which it was collected. The commissioners' court has no power to transfer money from any one of said funds to any other. * * * The county tax collector for each county is, under articles 7260 and 7261 of the Statutes, required to make monthly reports and remit all state taxes collected to the state treasurer and the county taxes to the county treasurer. The commissioners' court has no power to divert any part of the constitutional funds provided by law and thereby create an `Abstract, Map and Plat System Fund — Class A,' as attempted under the contract."

The court cites Carroll v. Williams, 109 Tex. 155, 202 S. W. 504, and Commissioners' ...