Ham v. Garvey, 11036.
| Decision Date | 12 November 1941 |
| Docket Number | No. 11036.,11036. |
| Citation | 155 S.W.2d 976 |
| Parties | HAM v. GARVEY, County Auditor, et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County, Fifty-Seventh District; S. B. Carr, Judge.
Proceeding by Buster Ham for a writ of mandamus requiring E. G. Garvey, as county auditor of Bexar County, to countersign and deliver to petitioner a warrant drawn on the county road and bridge funds in accordance with an order of the county commissioners' court. From a judgment denying the writ, petitioner appeals.
Reversed and rendered.
A. H. Lumpkin, of San Antonio, for appellant.
John R. Shook, of San Antonio, for appellees.
This is an appeal from an order of the District Court of Bexar County refusing appellant's demand for a writ of mandamus requiring appellee, E. G. Garvey, in his official capacity as County Auditor of Bexar County, to countersign and deliver to appellant a warrant for the sum of $425, drawn upon the Road and Bridge funds of the County, in accordance with an order of the Commissioners' Court of said County adopted September 3, 1940.
The controlling question under the facts of this case is one of the jurisdiction of the Commissioners' Court. If said Court, in ordering the payment of $425 to appellant, acted within its constitutional or statutory jurisdiction, the act of the Auditor in countersigning the warrant is purely ministerial, although required by the provisions of Article 1661, Vernon's Ann.Civ. Stats. However, if the action of the Commissioners' Court called into question be one unauthorized by law, and consequently outside or beyond the jurisdiction of said Court, the auditor properly refused to countersign the warrant ordered issued by the Court. Cameron County v. Fox, Tex.Com.App., 2 S.W.2d 433.
It appears that on June 4, 1928, appellant, Buster Ham, purchased approximately seven acres fronting on the Fredericksburg road. He conveyed the property to his daughter-in-law, Artie Mae Ham, in February, 1938. In November of the same year, Artie Mae Ham conveyed two acres out of said tract to N. B. Johnson. These two acres were described by metes and bounds calling for the new line of the Fredericksburg Road (U. S. Highway No. 87). In March, 1939, Artie Mae Ham reconveyed to Buster Ham the seven-acre tract, excepting the two acres conveyed to Johnson. This conveyance recited that Buster Ham had been, at all times mentioned, the true owner of the property.
It appears that about 1929 the right-of-way of the Fredericksburg Road was widened from sixty feet to one hundred feet and fences moved back accordingly. This resulted in there being left a strip of land, about twenty-three feet in width, between the Johnson property, or the new boundary line of the Fredericksburg Road right-of-way, and the old right-of-way line.
In March, 1939, Buster...
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