Stovall v. Shivers, 2055-6848.

• Decision Date: 31 March 1937
• Docket Number: No. 2055-6848.,2055-6848.
• Citation: 103 S.W.2d 363
• Parties: STOVALL, County Judge, et al. v. SHIVERS et al.
• Court: Texas Supreme Court

Page 363

103 S.W.2d 363

STOVALL, County Judge, et al. v. SHIVERS et al.

No. 2055-6848.

Commission of Appeals of Texas, Section A.

March 31, 1937.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by E. M. Shivers and another against E. C. Stovall, county judge, and others. Judgment of dismissal of the district court was reversed and the cause remanded by the Court of Civil Appeals [75 S.W.(2d) 276], and defendants bring error.

Affirmed.

West & Stanford, of Canton, for plaintiffs in error.

Crawford & Fletcher, of Grand Saline, for defendants in error.

GERMAN, Commissioner.

This suit was instituted by defendants in error, E. M. Shivers and W. L. Garland, resident taxpayers and citizens of commissioners precinct No. 1, Van Zandt county, Tex. They will be referred to as plaintiffs. The suit was against the county judge, the commissioners court, the county treasurer, and the county auditor of Van Zandt county. They will be referred to as defendants. The material allegations of plaintiffs' petition have been very succinctly summarized by the Court of Civil Appeals in its opinion and we adopt substantially that statement.

The allegations in the petition disclose that in April, 1931, the commissioners court of Van Zandt county passed an order dividing the road and bridge fund for the county equally among the four commissioners precincts, and the fair intendment of the allegations in the petition is that this order was made without examination into, or consideration of, the needs of the roads in respect to repair, in each of the four precincts, and without regard to the mileage of roads in each precinct, the amount of traffic over the roads of such precincts, or the amount of taxes collected in each precinct for road and bridge purposes. This action in distributing such fund was taken over the protest of the commissioner of precinct No. 1, who insisted that said fund should be distributed in each precinct in proportion to the amount of taxes collected in such precinct, and offered a resolution so apportioning said fund. For the years 1932, 1933, and 1934, the commissioners court, without any other formal resolution, acted under the 1931 order in distributing the road and bridge fund of the county, in the same manner as in 1931.

In 1931, precinct No. 1 paid 73 per cent. of the taxes collected for road and bridge purposes, precinct No. 2, 5 per cent., precinct No. 3, 16 per cent., and precinct No. 4, 6 per cent., and the same is true as to the amount of taxes paid by each precinct for the years 1932 and 1933. For the year 1934, it appears that precinct No. 1 paid 72½ per cent. of such taxes, precinct No. 3, 16½ per cent., and Nos. 2 and 4, the same percentage theretofore paid. In March, 1934, the commissioner of precinct No. 1 offered a resolution, to the effect that the road and bridge fund should be distributed in proportion to the taxes paid by each precinct. This resolution was not passed and the commissioners court adhered to the distribution of said fund as made by the resolution of 1931.

There are 831 square miles of territory in Van Zandt county, 221 in precinct No. 1, 170 in precinct No. 2, 250 in precinct No. 3, and 190 in precinct No. 4. Precinct No. 1 is traversed by as many creeks, rivers, and lowlands as are the other three precincts combined. The county roads in precinct No. 1 have as much traffic as all of the other county roads in the county, there being located within said precinct a large oil field, which has been operated for the past four years. The needs of the oil field, in the way of machinery, requires the use of a great many trucks on such roads, and has required such use for the past four years, and the county roads in precinct No. 1, by reason of the oil field, have had for the past four years more heavy traffic than all of the rest of the county roads in said county, and the county roads in said precinct are in a worse condition than such roads in any other precinct. Precinct No. 1 has 500 miles of county roads and no other precinct has more than 400 miles of county roads. While precinct No. 3 contains more territory than precinct No. 1, said precinct is not traversed by creeks, rivers, and lowlands, but is almost entirely prairie country, and the roads in such precinct need very little repair and maintenance. There are 65 miles of paved state and national highways through the county, but by reason of the location of these highways they accommodate less of the travel in precinct No. 1 than they do any other commissioners precinct.

There were formal allegations that the action of the court in dividing the road and bridge fund in the manner as had been done was arbitrary and without the exercise of any discretion, and that it was done with the intention of depriving precinct No. 1 of its rightful proportion of said funds.

The plaintiffs further alleged that unless the district court exercised its power to supervise the actions of the county commissioners, the county treasurer, and the county auditor, that they would continue to divide the road and bridge funds of the county equally among the four precincts.

It was also alleged that the road and bridge funds for the year 1934 would amount to $90,000; that unless the court issue a temporary restraining order the county officers would give precinct No. 1 only 25 per cent. of this amount, whereas in law they were entitled to more than 70 per cent.

Plaintiffs asked for a temporary injunction to keep the county treasurer from paying out any more of the road and bridge money until a trial could be had.

They asked the court to review the 1931 order of the commissioners court and declare it invalid. They also asked that all of the acts of the county treasurer, the county auditor, and the county commissioners concerning the distribution of said funds since said time be reviewed and the court declare all of them to be invalid. They further asked that upon a trial, the court hear evidence and prorate the said funds according to law. In the alternative, they asked that an injunction be issued restraining the spending of said money until it had been prorated according to law. As a further alternative plea, they asked that the disbursing of said funds be restrained until they were spent according to law.

In the district court, a general demurrer was sustained to plaintiffs' petition and the cause was dismissed. The Court of Civil Appeals in its majority opinion reversed the judgment of the trial court and remanded the cause for hearing. Justice Bond dissented. 75 S.W.(2d) 276.

In addition to the allegations of the petition stating that since April, 1931, it has become the settled policy of the commissioners court to divide the road and bridge fund into four equal parts, without inquiry as to the needs of the roads and bridges in the respective precincts, it is otherwise made to appear that the question has become one of intense political importance, and is of dominating influence in the public affairs of the county. In view of the fact that the manifest purpose of the suit is to obtain a revision of the order of 1931 on the ground of its invalidity, and to restrain its enforcement as the fixed and settled policy of the commissioners court of the county, we think it cannot be said that the case is in any sense moot.

If the order of the commissioners court of April, 1931, be invalid, then there can be no question of the right of the district court under section 8 of article 5 of the Constitution and under article 1908 of the Revised Statutes of 1925, to...