Dodson v. Marshall, 2003.

• Decision Date: 16 June 1938
• Docket Number: No. 2003.,2003.
• Citation: 118 S.W.2d 621
• Parties: DODSON v. MARSHALL.
• Court: Texas Court of Appeals

118 S.W.2d 621

DODSON v. MARSHALL.

No. 2003.

Court of Civil Appeals of Texas. Waco.

June 16, 1938.

Rehearing Denied July 7, 1938.

Appeal from District Court, Grayson County; F. E. Wilcox, Judge.

Suit by John Marshall to enjoin the County Commissioners of Grayson County from granting to Frank Dodson the privilege of operating a cigar and cold drink stand in the Grayson County Courthouse, and to enjoin Frank Dodson from so using such space. From a judgment for plaintiff, defendant Dodson appeals.

Reversed and rendered.

O. H. Woodrow, of Sherman, for appellant.

Lewis E. Bartlett, of Sherman, for appellee.

ALEXANDER, Justice.

This suit was brought by John Marshall against the county commissioners of Grayson county, Frank Dodson and others to restrain the commissioners' court from granting to Frank Dodson the privilege of operating a cigar and cold drink stand in a small alcove in the rotunda of the Grayson county courthouse, and to enjoin the said Frank Dodson from so using said space. At the conclusion of the evidence the court rendered judgment for the plaintiff as prayed. The defendant Dodson alone appealed.

The record discloses that the new Grayson county courthouse has a small alcove in the rotunda thereof that was constructed for the purpose of being used for a cigar and cold drink stand; that the commissioners' court of said county has, for a stipulated rental payable monthly, let to the said Dodson, for a period terminable at will, the right to maintain a cigar and cold drink stand in said alcove; that said space is not suitable nor is it needed for use for county offices; that the county is not required to and does not expend any public funds nor incur any other obligations for lights, janitor service or any other purpose in connection with the upkeep and use of said space; and that the commissioners' court deems it advisable and to the interest of the county to have such a stand maintained in the courthouse for the convenience of county employees and others having business to transact in said courthouse.

Briefly speaking, the question is: Does the commissioners' court have the discretionary authority to allow unused space in the county courthouse to be used by an individual for the purpose of carrying on therein a business which in the opinion of such court is necessary to the convenience of county employees and others having business to transact in the courthouse?

The Constitution, art. 5, sec. 18, Vernon's Ann.St.Const. art. 5, § 18, provides: "* * * The county commissioners so chosen, with the county judge, as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." R.S. art. 2351 makes it the duty of the commissioners' court to "provide and keep in repair court houses, jails and all other necessary public buildings." R.S. art. 1603 provides as follows: "The county commissioners court of each county, as soon as practicable after the establishment of a county seat, or after its removal from one place to another, shall provide a court house and jail for the county, and offices for county officers at such county seat and keep the same in good repair." R.S. art. 6872 provides, in part, as follows: "Sheriffs shall have charge and control of the courthouses of their respective counties, subject to such regulations as the commissioners court may prescribe. * *"

The commissioners' court is the active governing body of the county. Ehlinger v. Clark, 117 Tex. 547, 8 S.W.2d 666; Anderson v. Parsley, Tex.Civ.App., 37 S.W.2d 358; Jernigan v. Finley, 90 Tex. 205, 38 S.W. 24. While its authority over county's business is limited to that specifically conferred by the constitution and statutes, Mills County v. Lampasas County, 90 Tex. 603, 40 S.W. 403, where a right is thus conferred or obligation imposed, said court has implied authority to exercise a broad discretion to accomplish the purposes intended. 11 Tex.Jur. 565; City National Bank v. Presidio County, Tex.Civ. App., 26 S.W. 775; Gussett v. Nueces County, Tex.Com.App., 235 S.W. 857.

Under the provisions of the Constitution and the statutes above quoted, we think it clear that the commissioners' court is charged with the duty of providing a courthouse and has at least implied authority to regulate the use thereof within reasonable bounds. See also in this connection R.S. art. 1605, as amended, Vernon's Ann.Civ.St. art. 1605. The duty to provide a courthouse includes the obligation to furnish same with suitable and necessary equipment. This is not limited to the bare necessities for carrying on county business but includes modern conveniences incident thereto. For instance, drinking fountains, lights, fans, toilets and restrooms are not absolutely indispensable to the carrying on of county business in the courthouse. This is demonstrated by the fact that but few of the old courthouses had any of such conveniences, yet a modern courthouse would not be complete without these conveniences and no one would seriously question the authority of the commissioners' court to install them. This illustrates the necessity of allowing the commissioners' court some latitude in determining with what conveniences the courthouse should be equipped. In this instance, the commissioners' court of Grayson county, like the commissioners' cou...