Rowan v. Pickett, 12229

• Decision Date: 28 February 1951
• Docket Number: No. 12229,12229
• Citation: 237 S.W.2d 734
• Parties: ROWAN et al. v. PICKETT et al.
• Court: Texas Court of Appeals

Page 734

237 S.W.2d 734

ROWAN et al. v. PICKETT et al.

No. 12229.

Court of Civil Appeals of Texas, San Antonio.

Feb. 28, 1951.

Ronald Smallwood, J. Douglas McGuire, San Antonio, for appellants.

Scarborough & Roberts, Kenedy, for appellees.

POPE, Justice.

This is an injunction suit which essentially concerns the construction of Article 2372c, Vernon's Ann.Civ.Stats Appellants, taxpayers of Karnes County, by a class action sought to permanently enjoin the Commissioners and County Judge of that County, individually and as the Commissioners' Court, from using county equipment and machinery for private purposes. At the conclusion of the evidence the court entered its judgment against the defendants, who appeared both individually and as members of the Commissioners' Court, permanently enjoining them from using certain county trucks for purposes other than county purposes, from using county equipment to move privately owned houses or buildings and 'from making or entering into any private contracts for the use of the road machinery or other equipment of Karnes County, Texas, unless the same, in the opinion of the defendants, is related to soil conservation.' All other relief was denied and the costs were equally divided.

The court made findings of fact that the Commissioners' Court had been using county equipment in connection with soil conservation on private farms, that in most instances no written application for this work was made to the Court by the landowner, that in other instances no written contracts were made but sometimes written contracts were prepared by the soil conservation service, signed by the owner and accepted by the Court and the AAA Committee of the county; that this work consisted mostly of a few hours' work when the equipment was in the locality; that it would be impractical to keep machinery idle long enough to hold Commissioners' Court meetings to execute written contracts; that the prices charged for this conservation work were uniform in the county, that the individual commissioners followed the practice of negotiating the original contracts which were later discussed and agreed upon by the Court; that the Commissioners engaged in the practice of dragging and smoothing roads from people's houses along the main roads to the main road; that the evidence failed to show whether such roads were third class county roads; that this road work was also performed around churches and public schools where used by the traveling public; that these works were performed when the equipment was otherwise idle and not needed on the roads; that the county roads had not been neglected by reason of these works; that 'some of the defendant commissioners have been using county road machinery and equipment in engaging in private work for private persons or corporations for hire, and in turn paying the proceeds over to the county for the use of such machinery; such work being wholly disconnected with the upkeep, maintenance or construction of any road and not in connection with any soil conservation practice as provided by law'; that 'some of the defendants have been using county equipment for their own private use and benefit, wholly disconnected with and independent of any of their official duties as commissioners'; and that there had been no discrimination between citizens of the county in the maintenance of the roads or in soil conservation work.

These findings are followed by conclusions of law wherein the court concluded that the Commissioners' Court of Karnes County, Texas, had ratified and confirmed all of the soil conservation contracts entered into by the individual commissioners; that the matters complained about in connection with those contracts were matters within the discretion of the Commissioners' Court; that the Commissioners' Court did not abuse its discretion in respect to those contracts; that the matter of the construction and maintenance of the public roads and the necessary approaches thereto, were also matters within the discretion of the Commissioners' Court, and that the Commissioners' Court had not abused its discretion; that the leveling and smoothing of public grounds and approaches as a means of egress and ingress for the use and enjoyment of the public generally was not illegal and that the Commissioners' Court had not abused its discretion in that connection in this case; 'that engaging in private contracts using the public county road machinery and equipment for hire is illegal and a diversion of public property from the use for which it was intended, regardless of whether the county received remuneration therefor or not, and that such practice should be enjoined,' and 'that the use by the defendants of any public property for their own private use and benefit, wholly disconnected with any public use for which the property was intended, is illegal and amounts to an unlawful diversion of the property from its intended use, and should also be enjoined.'

Appellants have briefed forty-seven points of error consisting of attacks on each finding of fact, each conclusion of law and the court's failure to make additional findings and conclusions. The complaints fall into two general groups. There are points complaining about practices of the Commissioners' Court in permitting the use of county machinery and equipment for soil conservation contrary to and in excess of the powers granted by Article 2372c, Vernon's Ann.Civ.Stats., and there are complaints against the use of county equipment for private purposes including the maintenance of private ways leading into public roads.

Article 2351, Vernon's Ann.Civ.Stats., specifies the general powers and duties of the Commissioners' Court. Its authority over county business is limited to that specifically conferred by the constitution and statutes, but the court possesses broad discretion to accomplish those granted powers. Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084; Dodson v. Marshall, Tex.Civ.App., 118 S.W.2d 621. Prior to 1931 no authority existed for a Commissioners' Court to permit the use of road machinery on private property for soil conservation purposes. Article 2372c enacted in that year granted this additional power and prescribed the procedure to be followed in the event the court elected to participate in such conservation work.

The statute is short and clear. It states that a Commissioners' Court may participate in the soil conservation program (1) when the judgment of the County Commissioners' Court is entered upon the minutes of the court that its machinery or equipment is not demanded for the building and upkeep of the county roads, (2) permission may be granted landowners and taxpayers to use the machinery and equipment for such purposes under written contract, (3) the county shall receive compensation upon a uniform basis which shall be paid into the Road and Bridge Fund of the County, and (4) the Commissioners' Court or its representatives shall not go upon the land of any owner to improve, terrace, protect, or ditch such land until requested t do so in writing by such owner.

The trial court improperly refused to make a finding that the arrangements with the various landowners were made by the individual commissioners acting separately rather than sitting and acting as the Commissioners' Court. The court did, however, make a finding that in most instances the individual commissioners of the particular precincts negotiated the contracts for the use of the county machinery, and that later these matters were discussed and agreed upon in the Commissioners' Court. The testimony showed that each individual commissioner as a matter of general practice made his own agreements, and entered upon and performed work in his own discretion in his separate precinct without regard to the Commissioners' Court. Each commissioner used the equipment available in his own precinct in the exercise of his separate judgment. Article 2372c expressly and explicitly imposes these responsibilities upon the Commissioners' Court acting...