Edwards County v. Jennings

• Decision Date: 01 June 1896
• Parties: EDWARDS COUNTY v. JENNINGS et al.
• Court: Texas Supreme Court

35 S.W. 1053

EDWARDS COUNTY v. JENNINGS et al.

Supreme Court of Texas.

June 1, 1896.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Edwards county against Ike H. Jennings as principal, and others as his sureties, on a bond given to secure the performance of a contract. There was judgment for defendants, which the court of civil appeals reversed as to the principal and affirmed as to the sureties (33 S. W. 585), and plaintiff brings error. Affirmed.

Clark, Summerlin & Fuller, for plaintiffs in error. O. Ellis, for defendants in error Arnold and Beck.

DENMAN, J.

On the 10th day of August, 1891, Edwards county, through its commissioners' court, entered into a written contract with Ike H. Jennings, whereby Jennings obligated himself "to put in the town of Rocksprings, county seat of Edwards county, two eleven-thousand gallon tanks, public watering troughs, and sufficient power to furnish a constant supply of water for all necessary county purposes for the period of ten years from the date of this contract, to put in the necessary piping to furnish two hydrants for the courthouse and one hydrant for the jail, and to place the public watering troughs on public property whenever it can be done with safety to and without jeopardizing the vested rights" of said Jennings. And, as a consideration therefor, the county of Edwards obligated itself (1) to pay to said Jennings $3,500, one-half upon the arrival of the "equipment" in the town of Rocksprings, and the balance when said equipment was in position and ready for service; (2) to grant to said Jennings "an exclusive right of way to lay piping for supplying the town of Rocksprings, Edwards county, Texas, with water." Said Jennings as principal, and Arnold, Nix, and Beck as sureties, executed and delivered to the county judge of said county and his successors in office a bond, in the sum of $7,000, for the benefit of said county, conditioned that said Jennings would faithfully perform the obligations imposed upon him by said contract. On the 14th day of March, 1894, the county of Edwards, in the district court of said county, sued Jennings and his said sureties, alleging the execution of said contract and bond; that it had, in accordance with the provisions of the contract, paid to Jennings said $3,500; that Jennings never had sufficient machinery and power to comply with his contract, never put up any public watering troughs, and failed and refused to put the hydrants at the courthouse and to furnish a permanent and sufficient supply of water to the county or the transient public, as stipulated in said contract; that, in October, 1893, Jennings sold out his entire water works, and since then has had nothing in or near Rocksprings wherewith to even attempt a compliance with the contract, and has entirely abandoned same; that plaintiff has been compelled to obtain necessary supply of water from other sources, to its damage $10,000. Wherefore it prayed judgment against all the defendants for $7,000, the amount of bond, for costs, and general relief. The trial court sustained general and special exceptions, presented by defendants, to the petition, raising the question of the legality of the contract, and, plaintiff having declined to amend, said court rendered judgment that it take nothing by its suit against said defendants. On writ of error prosecuted from said judgment to the court of civil appeals, said court affirmed the judgment of the trial court as to the sureties, but reversed same, and remanded the cause to the district court for trial upon said petition as between Edwards county and the principal, Jennings. Edwards county has brought the cause to this court by writ of error, complaining of the action of the court of civil appeals in affirming the judgment of the trial court ordering that it take nothing against the sureties; but neither the county nor Jennings make any complaint here of the judgment of the court of civil appeals remanding the cause for trial as aforesaid as between the county and Jennings. We will therefore only examine the question presented as to whether the court of civil appeals erred in holding that the trial court correctly held that plaintiff's petition stated no cause of action against the sureties.

Under the authority of City of Brenham v. Water Co., 67 Tex. 561, 4 S. W. 143, and Const. art. 1, § 26, which provides that "perpetuities and monopolies are contrary to the genius of a free government and shall never be allowed," we are of the opinion that the agreement of the county to grant to Jennings "an exclusive right of way to lay piping for supplying the town of Rocksprings, Edwards county, Texas, with water," tends to create a monopoly, is violative of the constitution, illegal, and void. As stated above, the consideration for the obligations imposed upon Jennings by said contract consisted of the obligation of the county (1) to pay $3,500, and (2) to perform this unlawful agreement. We...