Ex parte Conger

• Citation: 357 S.W.2d 740,163 Tex. 505
• Decision Date: 06 June 1962
• Docket Number: Nos. A-8877,A-8878,s. A-8877
• Parties: Ex parte Joe CONGER. Ex parte E. K. BUFORD.
• Court: Supreme Court of Texas

Page 740

357 S.W.2d 740

163 Tex. 505

Ex parte Joe CONGER.

Ex parte E. K. BUFORD.

Nos. A-8877, A-8878.

Supreme Court of Texas.

June 6, 1962.

Turpin, Kerr, Smith & Dyer, Midland, for relator.

Clyde Vinson, San Angelo, for respondent.

CULVER, Justice.

Joe Conger and E. K. Buford, County Commissioners of Upton County, were found guilty of having violated the terms of a permanent injunction and the writ issued in pursuance thereof and served upon them which commanded Upton County, its agents, servants, officers and employees to desist and refrain from using the road machinery and other equipment of Upton County for the benefit of private persons by blading and scraping off lots, filling in lots or hauling dirt, sand, gravel, or caliche or using such road equipment for the benefit of private persons or doing any form of soil or dirt work on private property. The trial judge, having found Mr. Buford guilty of three separate violations, imposed cumulative sentences of three days for each of the first two violations hereinafter discussed and twelve hours for the third. Commissioner Conger was ordered confined twelve hours for his single violation.

Relators first say that the injunction order was not violated for the reason that the work which forms the basis of the charges against them was not carried out for the benefit of private persons, wherefore they should stand discharged from the penalties inflicted upon them by the District Judge.

Commissioner Buford was charged with doing work with county equipment on three tracts of land owned by private parties near or in the town of McCamey. As to the first alleged violation the Commissioner testified that he had received a request from some people in the neighborhood to 'clean up' a lot so that the children in the neighborhood would have a playground and that since he considered this was for the benefit of all the members of the community he scraped off the weeds and hauled them away. This action was taken without the knowledge or consent of the landowner.

Secondly, the Commissioner performed similar work on a tract owned by William Truesdale. Mr. Truesdale told Commissioner Buford that he was thinking about putting a house on his lots and requested the Commissioner to 'blade' them off. The Commissioner replied that he had received requests from several people in that vicinity to clear off the brush on the corner of these lots because it formed a traffic hazard at the intersection of two roads. He then proceeded to blade and clean off the lots and hauled away the trash with county equipment.

The third charge concerned the act of a county employee in Commissioner Buford's precinct who complied with the request of a homeowner to clear away a strip of weeds on a lot next to his property which he thought to be a fire hazard. In this instance while no express authority was given, the court found that the work was done with the Commissioner's implied consent because he had allowed the employee to use county equipment for this same character of work on a previous occasion. We have not found in the statement of facts any testimony that would support such a finding of implied consent.

In our opinion the clearing and scraping off a privately owned lot for the use as a playground of all the children of the community is not 'for the benefit of private persons' in contemplation of this injunctive order, but is rather for a public use or public purpose. No all-inclusive judicial definition of that term has been attempted by the courts, but each case is to be determined by its own peculiar circumstances. Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699. While there are two views as to what constitutes 'a public use', one being more restrictive than the other, nevertheless where there exists the direct use or right of use of the utility on the part of the public or even some limited portion of the public, all agree it is a public use. 73 C.J.S. Public p. 280.

We conclude therefore that the order in so far as it holds Commissioner Buford in contempt of court in respect to the first and third charges, cannot stand and must be set aside.

We are unable to say, however, that there is no evidence to support the court's finding that Commissioner Buford did violate the injunction by scraping off and removing the brush from the Truesdale lots. The work was actually done at the request of the landowner and for his benefit, who gave as a reason for the reques that he was thinking about placing a house on the property which he thereafter actually did do. There is at least some conflict in the testimony about the height of the brush and the extent of the traffic hazard it may have occasioned. Taking all the testimony into consideration we cannot say that the court was unjustified in finding that the work was done for the benefit of a private person, and therefore the contempt order is not void.

The complaint against Commissioner Conger was that by implied consent he allowed county-owned machinery to be used for the benefit of private parties in blading and scraping off two lots in the town of McCamey so that the members of a church would have a place to park their cars while attending religious services. The employee who did this work had been instructed by Commissioner Conger not to use the county equipment on private property. He testified, however, that 'I had had permission to use the equipment on the lands wherein the Lions Club had given the church permission, and I just presumed that if it was all right for me to use them for a parking area on one it would be all right to use it on another lot for the same purposes.' Work performed on privately owned property to furnish parking facilities for the use of...