Looscan v. Cnty. of Harris

• Decision Date: 09 February 1883
• Docket Number: Case No. 1339.
• Citation: 58 Tex. 511
• Parties: M. LOOSCAN v. THE COUNTY OF HARRIS.
• Court: Texas Supreme Court

58 Tex. 511

M. LOOSCAN

v.THE COUNTY OF HARRIS.

Case No. 1339.

Supreme Court of Texas.

Feb. 9, 1883.

APPEAL from Harris. Tried below before the Hon. James Masterson.

This suit was instituted in the name of the county of Harris against the following officials of said county, viz.: M. Looscan, the county attorney; John A. Kerlicks, county clerk; Henry Scherffins, county treasurer; C. Anson Jones, county judge; O. C. Mulligan, Robert Blalock, James Harrington and J. C. McDougal, county commissioners. The object of the suit was two-fold--to recover from defendant Looscan $3,002.50, alleged to have been illegally paid to him by virtue of certain drafts issued by the county clerk on the county treasurer in favor of Looscan; and also to enjoin Looscan from procuring further drafts by virtue of the order under which he had previously received said $3,002.50, and to restrain the county clerk from issuing to defendant Looscan such additional warrants.

The petition alleged that the drafts which had been so paid to Looscan were drawn between the 18th of April, 1876, and the 12th of March, 1880, and that all of the amounts paid to him subsequent to the 15th of February, 1877, were paid by drafts issued under order made and entered on the minutes of commissioners' court of Harris county at February term, 1877, as follows:

“Ordered, that M. Looscan, Esq., be allowed compensation at the rate agreed on by the county court at January term, 1874, for services as county attorney up to the 1st day of January, 1877, and that he be allowed for services to the county, required of him by the act of legislature to define and regulate the duties of county attorney, approved August 7, 1876, for the year 1877, the sum of $900 per annum in lieu of all commissions allowed county attorneys by said act; and it shall be his duty to represent the interests of the county in all litigation by or against the county.”

That under said order said Looscan still claimed a salary of $900 a year for his services as county attorney of the county; that all the defendants so construed that order; that said Looscan was about to apply to the county clerk to issue him under that order drafts for $500, the amount then claimed to be due him under the order for years 1879 and 1880, and said drafts would be issued by the clerk and paid by the treasurer out of funds of plaintiff unless restrained by the court. Prayer for judgment for $3,002.50 and interest, and for injunction restraining the issuing of any further warrants under the order, and restraining treasurer from paying the same.

It was alleged further that the commissioners' court of Harris county had refused to bring suit, or authorize the bringing of it.

Exceptions of defendant Looscan to the petition were sustained in so far as the petition claimed a recovery of the money already received by Looscan, viz., $3,002.50. The cause was tried upon the injunction branch of the case.

The county judge answered, and among other matters pleaded by him was a general and a special demurrer; and he specially excepted “because, by said pleadings, this county is called upon to revise or reverse the action already had, and to prevent the future action of the commissioners' court upon a matter committed by law wholly to its discretion as a board, to manage the business affairs of Harris county.” Answering to the facts, he pleaded that the commissioners' court, acting for the county of Harris, at its February term, 1877, entered into a contract with and retained the services of said M. Looscan as an attorney and counselor at law to defend the county of Harris in certain suits then pending in the district court of Harris county; and also to prosecute and defend all civil suits and actions then pending, or which might thereafter be commenced in which the county might be interested. Also to represent the county in the United States courts of the eastern district of Texas, at Galveston, and in the supreme court and court of appeals of the state of Texas; that for such services the court agreed to pay him $900 in county scrip, which was then below par; that in August, 1877, the county being able to pay cash, changed the contract as to the amount of compensation, so as to make thereafter the sum of $630 per annum. That during the years 1878 and 1879, Looscan continued to represent the county of Harris in all civil suits as theretofore, and the county clerk continued to issue him drafts for the same amount, all of which was done with the full knowledge of the commissioners' court, which accepted said services and acquiesced in the issuance of the drafts; that the said Looscan so continued up to the present time to represent the county of Harris as its attorney in civil causes, and was still representing it, and that the salary of $630 “is now being paid him, the said Looscan, with the approbation of said commissioners' court.”

On the 13th day of April, 1880, the county commissioners, O. C. Mulligan, Robert Blalock, James Harrington and J. E. McDougal, answered by general demurrer, special exceptions and general denial, and by a special plea denying the right of the district attorney to maintain the suit; and further, admitting the fact that they refused the district attorney authority to bring this suit. They admitted the special employment of Looscan to represent the county of Harris in the federal court of the United States at Galveston, in the supreme court of the state of Texas, and in the district court of Harris county, in suits then pending against the county, and that the services rendered by him were worth more than he was paid therefor; that he was retained by them as an individual attorney and counselor at law to represent and protect the interest of the county in matters wherein he was not required by law to do as its county attorney, and that he rendered, and was rendering, valuable services in the protection of the interests of the county. They denied that the employment of Looscan was continued in force by virtue of the order of February term, 1877, or that warrants were issued to him in pursuance to that order,...