Galveston County v. Gresham

• Decision Date: 28 January 1920
• Docket Number: (No. 7814.)
• Citation: 220 S.W. 560
• Parties: GALVESTON COUNTY v. GRESHAM.
• Court: Texas Court of Appeals

220 S.W. 560

GALVESTON COUNTY v. GRESHAM.

(No. 7814.)

Court of Civil Appeals of Texas. Galveston.

January 28, 1920.

Rehearing Denied February 26, 1920.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Action by Walter Gresham against Galveston County. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. H. Theobald and W. E. Cranford, both of Galveston, for appellant.

Lockhart & Lockhart, W. T. Armstrong, and Wm. B. Lockhart, all of Galveston, for appellee.

GRAVES, J.

On January 13, 1914, the commissioners' court of Galveston county adopted this resolution:

"Resolved: By the commissioners' court of said county, Galveston county, that the county judge and the chairman of the finance committee of this court are hereby appointed a committee with authority to employ counsel to represent Galveston county in all legal and legislative matters pertaining to the construction of a sea wall and boulevard from near Sixth street and Broadway to Ft. San Jacinto in accordance with the recommendations of the board of United States engineers as set forth in House Document No. 1390 of the Sixty-Second Congress, Third Session. Said committee shall have full power to act."

House Document No. 1390, Sixty-Second Congress, Third Session, thus referred to, in so far as the same is applicable to the issues herein, is as follows:

"10. The special board invites attention to the advisability of protecting the narrow neck between the city of Galveston and Ft. San Jacinto. It believes that in time of great storm this neck may be breached, resulting in serious damage to the Galveston Channel. It believes that the sea wall should be extended, and that this work should be done through the co-operation of the United States and the city of Galveston. The total extension of sea wall proposed is 10,300 feet, of which the special board believes the United States should provide 7,000 feet and the city 3,300 feet. The estimate for the work proposed to be done by the United States is $1,185,000. This work is recommended by the special board `contingent on a satisfactory cession to the United States, free of cost, of all land east and north of a line originating at the intersection of the center line of the south jetty with the present southern boundary of the Ft. San Jacinto reservation and extending thence approximately S. 16 deg. E. to the Gulf of Mexico (this line being made parallel to the numbered streets of the city of Galveston)' and `upon the quieting of any claims that may be outstanding to the present Ft. San Jacinto reservation' as well as `upon local interests providing for the building of that portion of the extension which lies between the angle of the present sea wall at Sixth street and Broadway and the above new boundary proposed for the government reservation.'"

Three days after this order had been adopted, the county judge and chairman of the finance committee, in the form of a report to the commissioners' court, duly employed Mr. Gresham, an attorney at law of many years standing in Galveston, to perform the services authorized in the order, under the following written contract, which was duly accepted by him:

"To the Commissioners' Court of Galveston County, Texas — Gentlemen: By virtue of the authority conferred upon the undersigned, as set forth in the order of this court, adopted January 13th, 1914, we did on the 16th day of January last employ Walter Gresham, Esq., to represent this county as its attorney before the proper committee or committees of Congress in the matter of the extension of the sea wall as described in said order.

"Under this employment Mr. Gresham is also to render such legal services as may be necessary to secure the right of way for the county's portion of the sea wall extension, and the conveyance to the government of the land referred to in the report submitted in House Document No. 1390, Sixty-Second Congress, Third Session.

"We instructed Mr. Gresham to urge that Congress authorize the entire work of the sea wall extension to be done under the direction of the Secretary of War, and that the boulevard along the government's sea wall extension conform to that constructed by the county.

"For such services rendered and to be rendered, the county of Galveston agrees and promises to pay to the said Walter Gresham, the sum of two thousand and five hundred dollars ($2,500), which sum shall become due and payable as soon as the contract for the building of the sea wall is executed by the proper parties. The payment of this fee is necessarily dependent upon the extension of the sea wall by the government.

"Very respectfully, [Signed] G. E. Mann, County Judge Galveston County. [Signed] Fred C. Pabst, Chairman of Finance Committee.

"I have accepted employment upon the terms and for the consideration stated in the above. [Signed] Walter Gresham."

Having, as he claimed, fully performed this contract upon his part and rendered the services therein specified, Mr. Gresham filed his claim for the $2,500 fee due him under its term with the commissioners' court of Galveston county, which that court, after first referring it to the county auditor for approval and receiving his refusal to do so, declined to pay. Mr. Gresham thereupon sued and recovered judgment for the amount against the county in the Fifty-Sixth district court. From that judgment the county prosecutes this appeal.

It is here contended that the contract, being an indivisible agreement to pay the lump sum promised for all the services contemplated by it, was one beyond the power of the commissioners' court to make and void in toto, in that:

(1) The services engaged and the things to be done by the attorney were not matters of "county business," to which the jurisdiction of the commissioners' court is limited under article 5, § 18, of our Constitution.

(2) No authority to make it was conferred either by article 11, § 7, of the Constitution, or by the acts of the Legislature of 1901 and 1913 (Vernon's Sayles' Statute, 2241, and 5585).

(3) The contract is in effect a grant of the money of Galveston county in aid of the government of the United States and of Mr. Maco Stewart, in violation of article 3, §§ 51 and 52, of our Constitution.

(4) It contravened article 3, § 53, of the same instrument, in that some of the services for which the fee as a whole was to be paid had already been performed at the time it was entered into.

(5) It was shown to be an attempt — without subsequent acceptance or ratification by it — of the commissioners' court to delegate to agents the exercise of such judgment and discretionary powers as are exclusively reposed by the Constitution and laws of this state in that court alone.

(6) That it appeared upon its face and otherwise that the contract was a lobbying one, and therefore against public policy.

We think none of the objections well taken. It seems to us that under our Constitution, statutes, and decisions, the building of the east-end sea wall and the procurement of legal services in furtherance thereof was clearly "county business" within the jurisdiction of the commissioners' court. See Constitution, § 7, art. 11; section 18, art. 5; Revised Statutes 1911, art. 5585; Acts 1901, 1 S. S., p. 23, § 1; Acts 1913, S. S., p. 3, § 1, amending Act 5585, Revised Statutes 1911; Vernon's Civil Statutes, art. 5585; Johnson v. Galveston County, 85 S. W. 511; Railway Co. v. Vance, 155 S. W. 699; Fayette County v. Krause, 31 Tex. Civ. App. 569, 73 S. W. 53; City National Bank v. Presidio County, 26 S. W. 777.

The express purpose of this public enterprise, as reflected in the court's order and the contract, was the protection of the property and lives of the people of Galveston county, and surely that was the business of the county as a municipal corporation, since one of its concededly highest duties was the expenditure of public funds arising from taxation for public improvements. The fact that the United States government was induced to furnish funds for the larger part of the cost of the work did not make it any the less county business.

In Johnson v. Galveston County, supra, this court held that the county could build a sea wall within the limits of the city, and that under the Constitution, art. 11, § 7, and the statute of 1901, both above cited, the commissioners' court's jurisdiction in managing the county's affairs is coextensive with its limits, saying:

"The authority conferred...