Rogers v. Lynn, 1571-6056.

• Decision Date: 16 May 1932
• Docket Number: No. 1571-6056.,1571-6056.
• Citation: 49 S.W.2d 709
• Parties: ROGERS v. LYNN, State Auditor, et al.
• Court: Texas Supreme Court

49 S.W.2d 709

ROGERS v. LYNN, State Auditor, et al.

No. 1571-6056.

Commission of Appeals of Texas, Section A.

May 16, 1932.

Original proceeding in mandamus by Fred S. Rogers against Moore Lynn, State Auditor, and another.

Petition dismissed.

A. M. Felts and York & Rogers, all of Austin, for relator.

James V. Allred, Atty. Gen., R. G. Waters and Homer C. DeWolfe, Asst. Attys. Gen., and Jerome Sneed, Jr., of Austin, for respondents.

CRITZ, J.

This is an original mandamus proceeding instituted in the Supreme Court by Fred S. Rogers, relator, against Moore Lynn, state auditor, and George H. Sheppard, state comptroller, respondents, to compel them to approve two accounts against the state represented by two deficiency certificates held by relator, and to further compel them to draw warrants on the state treasurer in payment thereof.

Simply stated, the relator's petition alleges facts which show that he was the duly constituted and acting county attorney of Fannin county, Tex., during the years 1929 and 1930; that as such officer he earned certain fees in felony cases; that he holds two deficiency certificates, one for $1,000, and one for $1,152, dated August 2, 1929, and July 28, 1930, respectively; that said certificates were issued by the comptroller, and represent felony fees for cases where final convictions were had at the June, 1929 and 1930, terms of the district court of Fannin county, Tex.; that all requirements of law have been complied with in the making out of said accounts, their presentation to and approval by the district judge, and all other things required for their presentation and approval by the comptroller. It is then alleged that, at the time said accounts were presented to the comptroller, there was no fund available to pay the same, and that the two above-mentioned deficiency certificates were therefore issued to relator. Relator then pleads that the Forty-Second Legislature passed an appropriation to pay certain deficiencies including the two certificates held by relator. It is then alleged that, after the effectiveness of the above appropriation bill, relator presented his two claims to respondents and demanded that they be approved and warrants drawn on the state treasurer in payment thereof, and that respondents have refused to do so.

The respondents have answered and in effect admit the allegations of relator's petition, except as hereinafter shown.

Respondents then plead that the appropriation bill above-mentioned contains the following provision: "It is especially provided herein that before any claim is paid from funds hereby appropriated the same shall have the approval of the State Comptroller and the State Auditor."

Respondents then plead that the effect of the above statutory provision contained in the above appropriation bill is to make such appropriation purely a conditional one, that no legal duty rests upon them to approve these accounts, if they choose not to do so, and that the Legislature had the right and power to impose such condition on the appropriation because it had the absolute power to withhold any appropriation in the first instance. In support of this contention, respondents cite Linden v. Finley, 92 Tex. 451, 49 S. W. 578.

We do not question the soundness of the rule announced in Linden v. Finley, supra. However, we do not consider it necessary to decide whether it has application here, as will later appear in this opinion. We therefore pretermit any further discussion of this contention.

After pleading as above, respondents further answer and say that the above accounts are, in the main, fraudulent, and represent claims for many items and fees never legally earned by relator. In connection with this plea, respondents say that they have exercised the powers and duties conferred and imposed upon them by law to carefully examine and investigate these accounts, and that, having done so and found them fraudulent and unjust in whole and in part, they have refused to approve the same or to issue warrants in payment thereof.

In this connection we note that the demand is for the approval of both of said accounts or claims in full.

In connection with the above allegations of fraud, respondents say that it is not true, as alleged by relator, that the claims made the basis of this action are for fees earned in felony cases finally convicted and no appeal taken, but that, in truth and in fact, the claims are composed chiefly of fees claimed in numerous cases in which relator pretends to have represented the state in felony habeas corpus cases in which a fee of $16 is charged for each case. It is then alleged by respondents that there are 93 of such habeas corpus fees charged for in the instant claims at $16 each, and that said alleged fees are false and fraudulent. Respondents then plead that, in a little more than two years, the relator has presented claims against the state for 317 habeas corpus cases, 93 of such cases being included in the instant claims, and the balance included in claims already presented and paid prior to the rejection of the instant ones.

Respondents then say that the fraudulent and illegal claims already collected by relator from the state constitute a valid cause of action in favor of the state against relator for an amount greater than any just claim relator has against the state, and that therefore, under the provisions of article 4350, R. C. S. of Texas 1925, as amended by Acts of 1931, 42nd Legislature, Regular Session, p. 400, c. 243, § 1 (Vernon's Ann. Civ. St. art. 4350), respondents are prohibited from paying said claims. Respondents then plead the above statute which reads as follows: "No warrant shall be issued to any person indebted to the State, or to his agent or assignee, until such debt is paid."

Respondents plead in detail the facts which they contend constitute the habeas corpus fees included in this and prior accounts fraudulent. In this connection they plead that it was the practice and fraudulent scheme of relator in every instance, where a person was charged with an offense of the grade of felony, to charge numerous offenses involving one act or transaction in separate complaints; that then a separate writ of habeas corpus would issue on each of such complaints; and a separate fee of $16 charged in each instance. It is then alleged that, when the grand jury met, the relator, still carrying out the fraudulent scheme, would cause the same person to be indicted in separate indictments for numerous offenses growing out of the same transaction, and that habeas corpus writs would again issue on each indictment, and another $16 fee be charged in each such instance. In connection with the above allegations it is alleged that in a little more than two years the relator herein has presented to the comptroller for payment claims for 317 habeas corpus cases pretended to have been held in Fannin county, Tex., during such time.

As illustrative of the practice alleged by the respondents to have been fraudulently and habitually fostered and followed by the relator, both as to fees here involved and fees heretofore collected by relator, we quote the following allegations made by respondents, and by the Honorable James V. Allred, Attorney General, and by the Honorables R. G. Waters and Homer C. DeWolfe, his assistants, for and on behalf of the state:

"Respondents' answer shows that it was the custom in Fannin County during the tenure in office of Relator for a writ of habeas corpus to be sued out after the examining trial in each and every felony complaint filed, and to sue out a writ of habeas corpus in each and every case in which a felony indictment was returned into the district court. Where one defendant was charged with more than one complaint, a separate writ was procured covering each complaint and each indictment.

"In one instance two men were charged with the commission of fourteen burglaries. Both of these men are alleged to have burglarized the same identical houses at the same time. Both were arrested. Fourteen complaints were filed in the Justice Court against each man. Applications for writs of habeas corpus were made by each defendant; fourteen writs were granted to each defendant by the court; all twenty-eight writs were issued simultaneously, by the same court, directed to the same sheriff, commanding the sheriff to produce one and the same defendant into the same court at the same time. The grand jury met and seven indictments were returned against each defendant. The same procedure was followed, and seven more such writs of habeas corpus were granted, and the Relator in this case has collected a fee of $16 in each of the forty-two habeas corpus proceedings as outlined above.

"In another case one man was charged with the forgery of two checks in three separate complaints involving one check, and three separate complaints involving another check. These three complaints in each case were for forgery, possessing a forged instrument, and passing a forged instrument. Six habeas corpus writs were issued to the same sheriff, commanding him to produce one and the same defendant into the same court at the same time. The grand jury met and returned six indictments, and the same procedure was followed as after the examining trial, and as a result, six additional writs were issued, making a total of twelve writs of habeas corpus growing out of the forgery of two checks. These cases illustrate concretely the procedure in the District Court of Fannin County during the tenure in office of the Relator herein, and he has collected heretofore, or by this action seeks to collect, a fee of $16 for multiple writs of habeas corpus in the manner as outlined above."

An inspection of this record shows that issues of fact are presented sustaining the above allegations. It is further shown by the answer that the instant accounts or claims include 93 habeas corpus cases in which the practice above alleged was followed. In...