Osborne v. Keith, 8184.

• Citation: 177 S.W.2d 198
• Decision Date: 05 January 1944
• Docket Number: No. 8184.,8184.
• Parties: OSBORNE v. KEITH et al.
• Court: Texas Supreme Court

177 S.W.2d 198

OSBORNE v. KEITH et al.

No. 8184.

Supreme Court of Texas.

January 5, 1944.

Rehearing Denied February 16, 1944.

Error from Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by R. M. Keith, as resident taxpaying citizen of Jefferson County and the State of Texas, and for all other resident taxpaying citizens of such county and state similarly situated, against P. L. Osborne and others to enjoin payment of county funds to named defendant under a contract and for an adjudication that title to certain realty is in Jefferson County. Judgment for plaintiff was reversed by Court of Civil Appeals (173 S.W.2d 954), and the cause remanded, with instructions, and error is brought to the Supreme Court.

Judgments of Court of Civil Appeals and of District Court reversed, and judgment rendered that plaintiff take nothing by his suit.

Smith, Smith & Boyd, of Beaumont, and Rutan & Phares, of Port Arthur, for plaintiff in error.

Shivers & Keith and Quentin Keith, all of Port Arthur, for defendant in error R. M. Keith.

Shelby K. Long, Co. Atty., of Beaumont, for defendants in error Jefferson County and others.

HICKMAN, Commissioner.

The principal parties hereto are before this court in the capacities of both petitioners and respondents and to prevent confusion we shall refer to them as plaintiff and defendants. The plaintiff is R. M. Keith and the defendants are P. L. Osborne, right-of-way agent for Jefferson county, the County Judge, County Commissioners and other officers of said county. Plaintiff brought this suit as a resident taxpaying citizen of Jefferson county for himself and for all other resident taxpaying citizens of that county similarly situated. The relief sought was an injunction to prevent the payment under a contract by the county to Osborne for certain material theretofore purchased from Osborne for use in constructing shoulders of a paved highway. In his petition he also prayed that the legal and equitable title to the tract of land from which the source material for the construction of the shoulders was obtained, be adjudged in Jefferson county. In the trial court he was granted the relief prayed for, but that court's judgment was reversed by the Court of Civil Appeals and the cause remanded with instructions. 173 S.W.2d 954.

The defendant, Osborne, denied the charges of bad faith on his part, but since we have determined that judgment should be rendered against the plaintiff we accept as true the facts testified to in support of his theory of recovery and consider them from his viewpoint.

Thus viewed, the essential facts are: At the time of the transactions involved in this suit and for some time prior thereto, Osborne was right-of-way agent for Jefferson county. The State Highway Department determined to extend a spur of a highway adjacent to a defense plant and requested Jefferson county to provide, at its expense, source material for the embankment and shoulders of the proposed extension. Osborne learned these facts. He had theretofore carried on some negotiations for the purchase of a tract of land consisting of 16.67 acres in the vicinity of the proposed extension, but nothing had come of his negotiations. After learning the facts above mentioned and for the purpose of trying to make some money out of the project for himself personally, he renewed the negotiations and succeeded in purchasing the 16.67 acre tract believing at that time that it contained source material suitable for use in constructing the shoulders of that highway. At the time he purchased same he planned to offer to sell to the county the right to take the source materials from the land and hoped to be able to do so. After he procured a deed he showed the land to an engineer employed by the State Highway Department and after inspecting it the engineer recommended to the Commissioners' Court of Jefferson county that the material be procured from a designated seven acres of the 16.67 acre tract. Thereafter, the Commissioners' Court, in regular session entered an order contracting with Osborne to pay him for such source material at the rate of twenty cents per cubic yard, which was the price recommended by the Highway Department as being the prevailing price for such material. On the same day Osborne executed and delivered to the State of Texas an instrument referred to as a right-of-way easement in which it was provided that the State might secure source material from a certain seven acres of the larger tract in an amount of not less than 40,000 cubic yards and not in excess of 55,000 cubic yards. By the contract Jefferson county obligated itself to pay Osborne a sum of money not less than $8,000 and not more than $11,000 for the easement. Osborne paid the owners $2,500 for the 16.67 acres and in addition paid the real estate broker's commission. The essential fact is that while acting as right-of-way agent for the county Osborne purchased the 16.67 acre tract and thereafter sold to his employer an easement to take material from seven acres thereof at a price far in excess of the purchase price for the entire tract.

Osborne owed to the county a very high degree of loyalty and good faith and his manner of evidencing his loyalty and exercising his good faith will not be defended in this opinion. Notwithstanding that, we have concluded that plaintiff can not maintain this suit and our opinion will be limited to a discussion of that one question.

This court recognizes the right of a taxpaying citizen to maintain an action in a court of equity to enjoin public officials from expending public funds under a contract that is void or illegal. Looscan v. County of Harris, 58 Tex. 511; City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton, Tex.Civ. App., 187 S.W. 367, error refused, 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139; Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94. The vigilance of...