Jones v. Veltmann

• Decision Date: 18 November 1914
• Docket Number: (No. 5353.)
• Citation: 171 S.W. 287
• Parties: JONES v. VELTMANN et al.
• Court: Texas Court of Appeals

171 S.W. 287

JONES v. VELTMANN et al.

(No. 5353.)

Court of Civil Appeals of Texas. San Antonio.

November 18, 1914.

Rehearing Denied December 16, 1914.

Appeal from District Court, Kinney County; W. C. Douglas, Judge.

Suit for injunction by John Jones against Joseph Veltmann and others. From a judgment denying the injunction, plaintiff appeals. Reversed and remanded, with instructions to grant the injunction.

E. A. Jones, of Brackettville, and Martin & Martin, of Uvalde, for appellant. Frank Lane, of Brackettville, and John J. Foster, of Del Rio, for appellees.

FLY, C. J.

Appellant applied for and obtained a temporary injunction on April 1, 1914, against appellees, Joseph Veltmann, county judge, Commissioners Hans Peterson, A. M. Slater, N. L. Lewis, and Albert Schwander, county clerk H. E. Veltmann, and county attorney Frank Lane, restraining the payment to Frank Lane of $1,200, salary ordered to be paid him by the commissioners' court. An appeal was taken from the granting of the temporary injunction, and the judgment reversed and cause remanded, on account of the affidavit for the injunction being defective and insufficient. Lane v. Jones, 167 S. W. 177. The cause was tried on April 18, 1914, by the court, and judgment rendered denying the injunction.

The facts show that appellant is a resident taxpayer of Kinney county, and owns both real and personal property in said county subject to taxation; that Joseph Veltmann is the county judge and together with the named commissioners constitute the commissioners' court of Kinney county; that H. E. Veltmann is the county clerk and Frank Lane the county attorney. The following order was made by the commissioners' court on February 11, 1914:

"The court after due consideration is of the opinion that the attorney's fee allowed the county attorney for legal services rendered to the court and county officials, to wit, $600 per annum payable in monthly installments of $50 per month, is inadequate for the amount of work such as the service requires. Therefore it is ordered by the court upon its own motion that the county attorney be and is allowed an attorney's fee of $1,200 per annum payable in monthly installments of $100 per month beginning on the 1st day of February, 1914, for legal services to be rendered to this court and the county officials as may be required, and the county clerk is hereby ordered to issue scrip of the county to the county attorney for the sum of $100 per month beginning on the 1st day of February, 1914, until further ordered by the court. It is further ordered by the court that all fees allowed to the county attorney in fines from criminal cases or prosecutions in the different justice courts of the county and county courts accruing since the 1st day of February, 1914, be collected by the constable or justice of the peace, sheriff or county judge and turned over to the county judge."

After the temporary injunction was granted, the commissioners' court, on the request of the county attorney, set aside the foregoing order, and made another, as follows:

"It is hereby ordered by the commissioners' court, at a regular term in regular session on this the 9th day of March, 1914, at 2:10 o'clock p. m.: That the county judge of Kinney county be authorized to secure the services of Frank Lane, attorney at law, to assist said county judge and commissioners' court in properly preparing the issue of the road bonds voted by a majority of the qualified property taxpaying voters of Kinney county on the 14th of November, 1913, to advise said county judge and commissioners' court in the proper preparation and issuing of said road bonds, and other legal matters in connection therewith; to sell or assist in selling said issue of bonds at the best price obtainable therefor; to do and perform such other services as shall be required of him in advising said commissioners' court and county judge with reference to said bond issue, and in reference to all other matters not contemplated or covered by the said Frank Lane's official duties as county attorney of Kinney county. That said employment by the county judge and commissioners' court to be for a period of one year from date of this order, said Frank Lane to receive as such compensation for said services to be performed, as above set forth, the sum of $1,200 payable $100 per month, for a period of 12 months. It being understood and agreed to by the said Frank Lane that, should he be instrumental in selling said bonds or finding a buyer therefor, said sum of $1,200 shall be full compensation for his services, and that no compensation shall be expected by or paid to said Frank Lane for such services. That said county judge is hereby authorized and empowered to enter into a contract with the said Frank Lane embodying the terms of the above order securing his services as special counsel in all civil matters in connection with said bond issue, and other legal matters not contemplated or covered by the said Frank Lane's official duties as county attorney of Kinney county."

Commissioner Albert Schwander voted against both orders. Prior to the two orders hereinbefore copied, an allowance of $100 was made to defray the expenses of Lane to Austin to obtain approval of certain road bonds that had been voted by the people. It was required that he make an itemized account of his expenses, which he did, showing them to have been $32.80; but he failed to return the balance of $67.20, and retained the same. Other pertinent facts are found in the course of the opinion herein.

The court had before him, at the time he granted the temporary injunction, the order of March 9, 1914, upon which order a permanent injunction was afterwards refused. In the opinion of the court on granting the temporary injunction it is forcibly shown that at least a portion of the services sought to be paid for were required by law and that, if any part of the salary was authorized, the evidence failed to separate the legal from the illegal portions. The same state of case is here presented.

The order of the commissioners' court of Kinney county, made on December 9, 1913, was:

"That Frank Lane be authorized to take and have charge of said bonds pending their investigation by the Attorney General and upon their approval shall have authority to negotiate their sale."

Article 632, Revised Statutes 1911, provides for examination of county and district bonds by the Attorney General and registry by the comptroller of public accounts, and further:

"Such bonds, when so issued, shall continue in the custody of, and under the control of the commissioners' court of the county in which they were issued, and shall be by said court sold to the highest and best bidder, for cash, either in whole or in parcels, at not less than their par value, and the purchase money therefor shall be placed in the county treasury of such county to the credit of the available road fund of such county, or of such political subdivision or defined district of such county, as the case may be."

It will be noted that the order of the commissioners' court not only placed the bonds in charge of Lane, but sought to give him absolute authority to sell them in any way and for any sum; no limitations of any kind being placed upon his powers in connection therewith. The court sought to confer on him authority that the court itself did not possess. There is no reference in the order to any legal limitations upon the sale, but untrammeled discretion is confided to him in the custody and sale of the bonds. Could such power be delegated to any one by the commissioners' court? We think not.

It is a well-settled principle that the public powers or trusts devolved upon a council or governing body of any subdivision of a state, to be exercised by it when and in such manner as it shall deem best, cannot be delegated to others. Dillon, Mun. Corp. § 244. No direct authority is found in the statutes for the employment of an agent to have the custody of and sell county or district bonds, and the principle should be always remembered that a public corporation is a governmental agency of very limited powers, hedged about with restrictions, and the authority to employ agents to assist in the performance of duties devolved on the governmental agency must be expressly given or strongly implied from the language of the statute. It has been held that power of a municipality to issue and sell bonds carries with it the implied power to secure such reasonable and necessary assistance as may be requisite to make an advantageous sale. Armstrong v. Ft. Edward, 159 N. Y. 315, 53 N. E. 1116; Slayton v. Rogers, 128 Ky. 106, 107 S. W. 696. In the case of Davis v. City of San Antonio (Civ. App.) 160 S. W. 1161, this court placed the authority of the city to employ agents to sell bonds on the language of the charter which permitted the employment of agents when "deemed necessary for the good government and interest of the city." But we are of opinion that the authority to sell lodged in a governmental agency would carry with it the authority to employ agents to assist in such sale, but at the same time it would not carry the authority to place the sale of the bonds at the absolute discretion of any one. Blair v. Waco, 75 Fed. 800, 21 C. C. A. 517. In the employment of such agencies, the most absolute good faith would be...