Mills County v. Lampasas County

• Decision Date: 15 April 1897
• Citation: 40 S.W. 403
• Parties: MILLS COUNTY v. LAMPASAS COUNTY.
• Court: Texas Supreme Court

40 S.W. 403

MILLS COUNTY v. LAMPASAS COUNTY.

Supreme Court of Texas.

April 15, 1897.

Certified questions from court of civil appeals, Third supreme judicial district.

Action by Lampasas county against Mills county to recover of defendant county its proportion of the debt existing against plaintiff county when the former was detached therefrom. From a judgment for plaintiff, defendant appealed to the court of civil appeals, which certifies a question to the supreme court.

J. L. Lewis, G. N. Harrison, and E. B. Anderson, for appellant. Matthews & Browning, for appellee.

GAINES, C. J.

This is a certified question from the court of civil appeals for the Third supreme judicial district. The certificate shows that Mills county was a new county created and organized in 1887, and that its territory was taken from Lampasas, Brown, Hamilton, and Comanche counties that the suit was brought by Lampasas county to recover from Mills county its proportionate part of the debt of the plaintiff county which existed when the defendant county was created; and that the claim was not first presented to the commissioners' court of the latter county for allowance. The question is certified as follows: "The case is now pending on appeal in the court of civil appeals for the Third supreme judicial district, and one of the material questions for decision is whether or not the cause of action sued on is such a claim as the statute required to be presented to the commissioners' court of Mills county before suit could be brought thereon; and that question the court of civil appeals desires to, and hereby does, certify to the supreme court of the state for decision." The question in this case has evidently arisen from the generality of the provision contained in article 677 of the Revised Statutes of 1879 (article 790 of the present Revised Statutes), and the fact that no reference is made to that provision in the act of 1893, which authorized a county, a portion of the territory of which had been incorporated in a new county, to sue the latter for a proportionate part of its existing indebtedness. Article 790 provides, in effect, that no suit shall be brought against a county unless the claim is first presented to and rejected by the commissioners' court of the county. The act of 1893, in so far as it bears upon the question under consideration, is as follows: "That any county which has heretofore been created, or may hereafter be created, by the legislature of the state of Texas, out of any other county or counties, shall be held liable for and bound to pay its proportion of all the liabilities of the county or counties from which it was taken, existing at the date of its creation of such new county, according to the proportionate value of the property in the excised territory, and the value of the property remaining in the old county, and a suit to recover the same may be brought by the parent county either in the district court of such parent county or in the district court of the newly-created county, and the court shall have power to make any order or render any judgment necessary to carry out and satisfy its decree therein: provided, that the provisions of this act shall not apply to any county the claims against which have already been placed before courts having jurisdiction thereof and tried or dismissed under laws that were at such time constitutional. Where any suit has been or shall be brought to enforce payment of the indebtedness created by the parent county or counties, or for the pro rata share of the excised territory, the assessment rolls of the parent county or counties for the year in which such new county was created shall be conclusive evidence of the property and value thereof remaining in the parent county at the date of the creation of such new county. All suits brought under this act are hereby declared to be of general public interest, and shall be given precedence upon the dockets of the courts of this state; and if the plaintiff shall recover, it shall be the duty of the commissioners court of the newly created county to levy a special tax on all property in the territory taken from the plaintiff...