Guerra v. Rodriguez

• Decision Date: 09 May 1951
• Docket Number: No. 12274,12274
• Parties: GUERRA v. RODRIGUEZ et al.
• Court: Texas Court of Appeals

Page 915

239 S.W.2d 915

GUERRA v. RODRIGUEZ et al.

No. 12274.

Court of Civil Appeals of Texas, San Antonio.

May 9, 1951.

Rehearing Denied May 31, 1951.

Gerald Weatherly, Austin, for appellant.

L. Hamilton Lowe, Austin, M. J. Raymond, Laredo, A. J. Vale, Rio Grande City, Bismark Pope, Laredo, for appellees.

POPE, Justice.

This is an appeal from a judgment denying appellant's prayer for a declaratory judgment that he as county commissioner is ex-officio road superintendent of public roads in his precinct, with power to hire road workers, buy and rent tools and equipment, and make contracts for road labor and machinery, subject to the general supervision of the Commissioners' Court. He also sought an injunction against the payment of certain bills until he has certified them for payment.

Appellant, H. P. Guerra, individually and as County Commissioner of Precinct 2, Starr County, commenced this action against the other members of the Commissioners' Court, the County Treasurer and the County Auditor. In a trial before the court appellees admitted they were permitting a man by the name of Alonzo Hinojosa to hire road hands, fix and report to the county the wages these hands should receive, and that they will approve numerous large wage claims for labor performed by those road hands unless enjoined. Hinojosa is not required to make sworn reports and accounts, nor to give certificates of the amounts and purposes of the labor claims. He is unbonded, has given no oath, and has never been appointed to perform these services. Appellant's precinct is the only one in which Hinojosa exercises these powers and duties. Appellant does not know the names of the road hands nor the amounts of their claims, and this information is concealed from him. He does not hire the road workers and their work is not performed under his supervision or superintendence.

Appellant seeks a declaratory judgment that he is ex-officio road superintendent of public roads in his precinct with full right and power to employ necessary road workers, and to buy or hire such tools, teams, implements and machinery as the Commissioners' Court may direct. He also prays that appellees be enjoined from approving or paying these claims unless his certificate or that of his successor as road superintendent is given. He seeks these powers subject to the general supervision of the Commissioners' Court.

Article 2351, Vernon's Ann.Civ.Stats., places general control over all county roads in the Commissioners' Court, but various statutes have provided special methods by which the court may perform or delegate these functions. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 457. (1) It may let the work on contract to independent contractors. Art. 6753, Vernon's Ann.Civ.Stats. (2) It may appoint an overseer for each road precinct and designate all hands liable to work on public roads. Arts. 6718-6736, 6739, 6755. (3) It may employ not more than four road commissioners. Arts. 6737-6742. (4) It may appoint a road superintendent for the county or one for each precinct. Arts. 6743-6761. (5) Provided the county had forty thousand inhabitants, the members of the Commissioners' Court shall be ex-officio road commissioners of their respective precincts. Art. 6762. (6) It may employ a County Road Engineer with broad statutory powers in the event the county by an election determines to adopt the Optional County Road Law of 1947. Art. 6716-1.

Since the Legislature has specifically authorized the employment of agents having powers over the county roads, hedged about with stated protective requirements, can a different method be used? This question has been answered in Canales v. Laughlin, supra:

'This question has already been answered in principle by the decisions of this Court. In Ferguson v. Halsell, 47 Tex. 421, 423, the Court in an opinion written by Chief Justice Roberts said: 'The general doctrine is, that as the County Court is the agent of the county, in its corporate capacity it must conform to the mode prescribed for its action in the exercise of the powers confided to it. The prescribing of a mode of exercising a power by such subordinate agencies of the Government has often been held to be a restriction to that mode.'

'The same rule was announced in Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104, 1105, by Chief Justice Cureton: 'Another rule, equally well recognized, applies to and controls this case, to wit, that where a power is granted, and the method of its exercise prescribed, the prescribed method includes all others, and must be followed.' See also State v. Opperman, 74 Tex. 136, 11 S.W. 1076; Weaver v Robison, 114 Tex. 272, 268 S.W. 133; Fort Worth Cavalry Club v. Sheppard, 125 Tex. 339, 83 S.W.2d 660.'

Appellant does not urge that he, as Commissioner of Precinct 2 of Starr County, falls within any of the categories mentioned above, but relies upon the provisions of Article 6713. That statute, he urges, constitutes him ex-officio superintendent by reason of his being Commissioner. Until the Commissioners' Court avails itself of one of those methods, he contends that the commissioner, rather than the Commissioners' Court, possesses the powers of a superintendent.

Essentially this case concerns the interpretation of the word supervisors as used in Article 6713, which provides in part: 'Except when road commissioners are employed, the county commissioners shall be supervisors of public roads in their respective counties, and each commissioner shall supervise the public roads within his commissioners precinct once each month.'

That the word supervisors means ex-officio superintendents is urged because Article 2350, Vernon's Ann.Civ.Stats., which is the Commissioners' salary bill, provides that each Commissioner in counties having assessed valuations less than certain amounts stated in the statute, shall receive additional compensation for each day 'when acting as ex-officio road superintendent in his Commissioner's precinct, * * *.' Appellant also points to the legislative history of this salary statute, which shows that four times since 1925 the Legislature in enacting salary bills has made reference to a salary for commissioners 'when acting as ex-officio road superintendent in his precinct'. Acts 39th Leg., c. 135, p. 340; Acts 43d Leg., c. 216, p. 727; Acts 44th Leg., c. 362, p. 1036; Acts 49th Leg., c. 204, p. 280. Prior to 1925, various salary acts provided for increased salary allowances for Commissioners 'when acting as ex-officio road supervisors of their precincts'. Acts 35th Leg., 4th C.S., c. 29, p. 52; Acts 36th Leg., c. 98, p. 156; Acts 38th Leg., c. 184, p. 418. This indicates that the Legislature, at least in discussing salary, uses the words supervisor and superintendent interchangeably. It is urged, therefore, that when the Legislature in Article 6713 constitutes the Commissioners as supervisors, the word is used to mean superintendent, since the words are used interchangeably.

On the other hand, there are indications that a Commissioner's powers as a supervisor are not the same as those conferred by other statutes upon a road superintendent.

In the first place, no statute expressly creates an ex-officio superintendent. In the instance of an ex-officio Commissioner, on the other hand, there is an express statute, Art. 6762. The presence of such a statute creating the ex-officio commissioner, and the absence of a similar statute creating an ex-officio superintendent indicate none is intended. Moreover, Article 6762, creating the ex-officio commissioners, is limited to counties which contain forty thousand inhabitants. The passage of such an article indicates that theretofore such a status as an ex-officio commissioner did not exist. It would appear that under the provisions of Article 6762, in counties with less than forty thousand inhabitants, an ex-officio road commissioner still does not exist, none having been provided by statute. The conclusion reached from these matters is that an ex-officio superintendent likewise does not exist until one is by statute created. None having been created, it does not exist.

Moreover, Article 6747, which is included among those articles relating to road superintendents appointed by the Commissioners' Court, sheds light on the word supervisor. Article 6747, following a statement of the powers of a road superintendent (Art. 6746) and also the duties including the duty to repair roads, states: 'He shall act as supervisor of the roads in his county or precinct, and perform all the duties of supervisor devolving on the county commissioners in counties not adopting...