Harwell v. Ward County, 5322

• Decision Date: 25 June 1958
• Docket Number: No. 5322,5322
• Citation: 314 S.W.2d 868
• Parties: Walter HARWELL, Appellant, v. WARD COUNTY, Appellee.
• Court: Texas Court of Appeals

Page 868

314 S.W.2d 868

Walter HARWELL, Appellant, v. WARD COUNTY, Appellee.

No. 5322.

Court of Civil Appeals of Texas, El Paso.

June 25, 1958.

Rehearing Denied July 16, 1958.

Turpin, Kerr & Smith, Midland, for appellant.

Murray John Howze, County Atty. Monahans, for appellee.

PER CURIAM.

After considerable consideration, discussion and controversy, a majority of the Commissioners Court of Ward County concluded to contract with the State Highway Commission for the purpose of building a road known as a farm to market road. Ten miles of this road were in Ward County, and seven miles in Pecos County. For reasons of its own, Pecos County declined and refused to contribute in any way to the seven miles proposed to be built in its county. The purpose of the road was to promote commerce and traffic between a newly developed and highly productive cotton area, known as Coyanosa, with apparently several areas and cities anxious for the business. Because they could get no assistance from Pecos County, a majority of the Ward County Commissioners Court entered into a contract with the State Highway Commission, under which the State Highway Commission agreed to build the entire 17 mile road provided Ward County would pay the State Highway Commission the sum of $90,000, furnish the funds required for the purchase of all the right of way, or furnish same free of charge. It was stipulated that both parties understood, and it was agreed, that in furnishing a complete right of way for the entire 17 miles, Ward County would, without expense to the State, fence said right of way on both sides.

The record indicates that there was much competition for the commerce from this new area, and several other farm to market roads were proposed by other areas. In any event, a majority of the Commissioners Court of Ward County entered into the above described agreement, which was carried out. The $90,000 was sent to the State Highway Department, Ward County secured the right of way, and, at its own expense, fenced the entire right of way, including the seven miles in Pecos County, Texas.

In the course of events, upon request from the State Highway Department, Ward County began the fencing of the seven miles of right of way lying in Pecos County, and in carrying out this purpose the defendant, County Judge of Ward County, ordered County employees to deliver barbed wire, posts and staples to the workmen in Pecos County putting up the fence. A grand jury met in Ward County and requested the County Attorney to file suit against the five members of the Commissioners Court of Ward County for the value of the wire and posts which were sent to Pecos County, and for the labor bill for installing the fence. There was no attempt made to recover the $90,000 or any sums apparently spent for right of way.

At the trial, all claims were ruled out except a claim against the County Judge, personally, and judgment was rendered against him in the sum of $3,848.64 as representing the value of the materials which the court held he wrongfully ordered delivered to the job in Pecos County. From this judgment against him individually, the defendant has appealed.

Appellant has presented a number of points, which we will dispose of in a more or less general manner.

The first point we think presents error, in that we think that the trial judge should have sustained defendant's exception which challenged the right of the grand jury to cause this suit to be filed. Our examination of the authorities leads us to believe that, first, Art. 339, R.C.S., Texas, does not authorize the County Attorney to bring a suit of this nature, as...