State v. Epperson
| Decision Date | 05 October 1931 |
| Docket Number | Motion No. 9859. |
| Citation | 42 S.W.2d 228 |
| Parties | STATE v. EPPERSON et al. |
| Court | Texas Supreme Court |
James V. Allred, Atty. Gen., and F. O. McKinsey and Scott Gaines, Asst. Attys. Gen., for the State.
On December 31, 1928, Hidalgo county entered into a contract with J. C. Epperson, an attorney, for the collection of delinquent state and county taxes, by the terms of which Epperson was to receive 15 per cent. of all such taxes that might be collected as a direct result of his services.
On April 1, 1929, said county made a contract with an abstract company to furnish such abstracts to Epperson as would enable him to bring proper suits for the collection of delinquent taxes, agreeing to pay the company for such services 10 per cent. of the taxes collected as the result of such suits.
The parties operated under these contracts without any controversy arising up to October 17, 1929. At that time there had been collected a total of $282,687.64 in delinquent taxes, of which $108,763.57 was collected as the result of the services rendered by Epperson and the abstract company. Of the latter sum Epperson was paid 15 per cent. and the abstract company 10 per cent.; neither party claiming any part of the $173,924.07, which it seems was collected independently of the efforts of these parties.
On September 9, 1929, Epperson filed with the commissioners' court of Hidalgo county a written proposal setting forth that it would be advantageous to all parties concerned if the contracts between him and the county and the county and the abstract company be canceled and a new contract made by which he would perform all the duties provided under both contracts; it being stated in his proposal that he would perform all the services specified in both contracts and in addition thereto certain other services in preparing a plat book system for the county without any additional remuneration other than that provided in the previous contracts.
It is made to appear that the commissioners' court accepted this proposal, canceled both of the old contracts, and entered into a new contract with Epperson under date October 17, 1929. The order of the commissioners' court and the new contract were prepared by Epperson and adopted by the commissioners' court.
It is further shown that since October 17, 1929, there has been collected in delinquent taxes as a direct result of Epperson's services the sum of $18,285.38, and that Epperson has been paid a total of approximately $19,464.83. It is also shown that Hidalgo county during said time has collected the sum of $536,322.62 in delinquent state and county taxes which was not the result directly or indirectly of any services performed by Epperson.
On March 5, 1930, D. C. Earnest and five other taxpayers of Hidalgo county filed in the Ninety-Third district court of Hidalgo county cause No. 7732, styled Earnest et al. v. Cameron, on the docket of said court, in which the plaintiffs sought to have the contract of date October 17, 1929, canceled and to recover from Epperson money previously paid him thereunder. The grounds upon which cancellation of the contract was sought were:
(a) The commissioners' court was without power to make such contract;
(b) Same was procured by fraud and collusion;
(c) That the compensation provided in said contract was so excessive as to be a legal fraud.
In this suit the state of Texas, through its proper officer, intervened, and joined in the prayer for the relief asked by the taxpayers.
On April 23, 1930, the district court of Hidalgo county rendered its final judgment in said cause canceling the contract of date October 17, 1929, enjoining its further recognition or performance, and in favor of the state and county for the moneys previously paid Epperson thereunder.
An appeal from the judgment rendered by the district court of Hidalgo county was duly perfected to the Court of Civil Appeals for the Fourth Supreme Judicial District. On August 15, 1930, before action had been taken by said Court of Civil Appeals in said cause, Epperson and the commissioners' court of Hidalgo county entered into a contract in which it was recited that it was believed the judgment of the district court in said cause would be reversed, and it was agreed in the new contract that the time for the performance of the contract between Epperson and the county should be extended for a period to be calculated as provided in said contract, which Epperson claims is until April 22, 1932 the evident purpose of the new contract being to give Epperson, in the event of the reversal of said cause, the benefit of the time for performance which was interrupted by the judgment of the district court.
On January 21, 1931, the Honorable Court of Civil Appeals reversed the judgment of the district court and rendered judgment in favor of Epperson and overruled appellees' motion for rehearing. 34 S.W.(2d) 685. The mandate of the Court of Civil Appeals was filed in the district court of Hidalgo county on July 31, 1931.
In the opinion rendered by the Court of Civil Appeals it was held:
(1) That the contract of date October 17, 1930, between Epperson and Hidalgo county was within the power and validly made by the commissioners' court.
(2) That same was not made as a result of fraud or collusion.
(3) That the compensation provided therein was not so excessive as to constitute a legal fraud.
(4) That the contract was in all things valid and that moneys previously paid Epperson could not be recovered.
On February 5, 1931, Epperson filed in the district court of Hidalgo county his petition for mandamus against H. Tarpley, tax collector of said county. By amended petition the county judge and all members of the commissioners' court were made respondents. In this proceeding Epperson claimed that under his contract of October 17, 1930, the tax collector of said county held some $93,000 in commissions due him for his services under said contract. He alleged that under the terms of the contract he was entitled to 25 per cent. of all delinquent taxes collected by said county whether the same were collected as the direct result of suits filed by him or otherwise, and that the respondent collector then had in his hands the sum of $93,000, which belonged to him as his commissions for services rendered under said contract.
On September 5, 1931, and before any trial had been had of the above-mentioned suit in Hidalgo county, the state of Texas, through its Attorney General, filed its petition in the Fifty-Third district court of Travis county against Epperson, H. Tarpley, tax collector of Hidalgo county, and George H. Sheppard, comptroller of public accounts of the state of Texas. In this suit the state seeks to enjoin the comptroller from approving the contract of date August 15, 1930, and to require Tarpley as tax collector to pay over to the state treasurer the state's portion of the delinquent taxes collected. In so far as Epperson was concerned the state claimed in its petition that he had not performed the services required under said contract; that said contract had been duly terminated by the commissioners' court; and that in any event Epperson was not entitled to any percentage of delinquent state taxes collected except those collected as the direct result of services rendered by him; and in the alternative it was alleged that if the contract relied on by Epperson be in fact susceptible of a different construction, it was the result of a mutual mistake of the parties thereto, it being their intention that Epperson was to receive as compensation for his services under said contract 25 per cent. of the delinquent taxes collected as the direct result of suits instituted by him, and there was a prayer for reformation of the contract so as to carry out the true intention of the parties.
Upon the filing of the petition in the above-mentioned case, temporary injunction was issued by the district court of the Fifty-Third judicial district of Travis county, enjoining Epperson from further prosecuting his mandamus suit No. 8377 pending in the district court of Hidalgo county until the final determination of said suit in the district court of Travis county. Also temporary injunctions were issued and served against the state comptroller enjoining him from approving the contract of date August 15, 1930, between Hidalgo county and Epperson from collection of delinquent taxes, and also enjoining H. Tarpley as tax collector of Hidalgo county from paying over to Epperson any of the funds in controversy during the pendency...
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