Jameson v. Smith, 4160.

• Decision Date: 22 January 1942
• Docket Number: No. 4160.,4160.
• Citation: 161 S.W.2d 520
• Parties: JAMESON et al. v. SMITH, County Clerk, et al.
• Court: Texas Court of Appeals

161 S.W.2d 520

JAMESON et al. v. SMITH, County Clerk, et al.

No. 4160.

Court of Civil Appeals of Texas. El Paso.

January 22, 1942.

Rehearing Denied February 5, 1942.

Appeal from District Court, Coleman County; O. L. Parish, Judge.

Suit by E. C. Jameson and others against George M. Smith, County Clerk, and another, to establish claims and for a writ of mandamus against county clerk to compel him to issue warrants against the road and bridge fund for respective sums alleged to be due. From a judgment for defendants, the plaintiffs appeal.

Affirmed.

E. M. Critz, of Coleman, for appellants.

L. M. Crump, of Coleman, for appellees.

Gerald C. Mann, Atty. Gen., and William J. Fanning and Ardell Williams, Asst. Attys. Gen., for amicus curiae.

WALTHALL, Justice.

This is an appeal from the 119th District Court of Coleman County.

E. C. Jameson, J. A. Williams, M. Forehand, and R. A. Cox, as plaintiffs, filed this suit against Geo. M. Smith, as County Clerk of Coleman County, and the County of Coleman to establish a claim in favor of each for the sum of $280, a total sum of $1,280, and for a writ of mandamus against the County Clerk to compel him to issue warrants against the road and bridge fund of their respective precincts as County Commissioners of Coleman County for the respective sums alleged to be due them. The trial was to the court without a jury, and judgment that they take nothing. On request the court filed his findings and conclusions. The parties will be described here as in the trial court.

The plaintiffs were all County Commissioners of Coleman County during the months of May to December, inclusive, 1940. For such months they sought to recover the sum of $35 per month, which they alleged to be due them under the provision of H. B. 193, Special Acts of the 46th Legislature, Vol. 2, c. 12, page 575, Vernon's Ann.Civ.St. art. 2350m note, and the order of the Commissioners' Court allowing such sum and directing the payment thereof.

The Act involved is a so-called "bracket law," containing five brackets. The Act provides that in counties within the brackets, "the Commissioners Court is hereby authorized to allow each Commissioner not more than the sum of Thirty-five Dollars ($35) per month to be paid out of the Road and Bridge Fund of each respective Commissioner's Precinct, for traveling expenses and depreciation on the automobile while used on official business only and/or in overseeing the construction and maintenance of the public roads of said counties. Each such Commissioner shall pay all expenses in the operation of such automobile and keep same in repair at his own expense, free of any other charge whatsoever to the county."

At the time the law went into effect in 1939, Coleman County was the only county in Texas within its provisions. At the present time under the 1940 Federal Census it is not within the provisions of the law and only Lee County is. There is no question presented on the pleadings and the pleadings are sufficient to bring the plaintiffs under the law.

Plaintiffs sought to recover on two theories: (1) That the Act, under the decisions of the courts prior to Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000, was a general law; and (2) that it is a special road law under the provisions of Art. 8, Sec. 9, of the Constitution of the State of Texas, Vernon's Ann.St. As we understand it, the first proposition has been abandoned and the second now only is relied upon. The sole issue to be determined here is whether or not the law is a special road law within the meaning of the provision of the Constitution, Art. 8, Sec. 9, supra.

The testimony of the plaintiffs is that they all used their cars for "official business" aside from overseeing the construction and maintenance of the public roads of the county. Three of them for but little other than the road overseeing. One of them estimated he used his from one-third to one-half of the time on official business other than road business. None of them kept any account of any divided use. They all incurred expenses in excess of the amount allowed and sued for.

We think it clear the Legislature passed this law in the light of the decisions of the courts prior to the wholesome, timely and welcome decision by the Supreme Court in Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000, and without any intention of constituting the same a local road law for the maintenance of public roads and highways in Coleman County. Sufficient proof that it was not intended as the latter is the fact it was not specifically enacted as such. If it...