Stratton v. Commissioners' Court

• Decision Date: 17 May 1911
• Citation: 137 S.W. 1170
• Parties: STRATTON v. COMMISSIONERS' COURT OF KINNEY COUNTY et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

137 S.W. 1170

STRATTON v. COMMISSIONERS' COURT OF KINNEY COUNTY et al.^†

Court of Civil Appeals of Texas. San Antonio.

May 17, 1911.

Rehearing Denied May 31, 1911.

Appeal from District Court Kinney County; W. C. Douglas, Judge.

Action by Richard Stratton against the Commissioners' Court of Kinney County, Tex., and another. From an order denying an injunction, plaintiff appeals. Affirmed.

John J. Foster, for appellant. R. V. Davidson and G. W. L. Smith, for appellees.

NEILL, J.

The nature and character of this suit may be best shown by appellant Stratton's, who was plaintiff below, original petition, and defendants', who are the appellees, original answer:

The petition, omitting the marginal venue, term of court, and address, is as follows:

"Your petitioner shows unto this court that Richard Stratton is the plaintiff, and that the commissioners' court of Kinney county, Tex., and N. Castro, A. Schwandner, W. O. Vincent, L. N. Lewis, the members composing said commissioners' court, and Falls City Construction Company, a corporation organized and existing under the laws of the state of Kentucky, are the defendants in this cause.

"First. Plaintiff shows unto the court: That he is a resident citizen and property taxpayer of Kinney county, Tex., and owns real and personal property situated in said county, subject to taxation therein.

"Second. That said commissioners' court and the members composing said court are also resident citizens of Kinney county, Tex. That Joseph Veltman is the duly elected, qualified, and acting county judge of said county. That N. Castro is the duly elected, qualified, and acting county commissioner for commissioner's precinct No. 1 of said county. That A. Schwandner is the duly elected, qualified, and acting county commissioner for commissioner's precinct No. 2 of said county. That W. O. Vincent is the duly elected, qualified, and acting county commissioner for county commissioner's precinct No. 3 of said county. That L. N. Lewis is the duly elected, qualified, and acting county commissioner for commissioner's precinct No. 4 of said county.

"Third. That said commissioners' court have heretofore during the year 1910 decided by regular orders of the court that the building used by said county as the courthouse was insufficient, unsafe, and inadequate for the use required by law, and decided and determined that it was necessary for the county to erect a sufficient and proper county courthouse building, and thereupon employed an architect and adopted plans and specifications for said building, and issued advertisements in the newspapers for competitive bids thereon. That at a meeting of the court the 7th day of July, 1910, said court received said bids and awarded a contract to the Falls City Construction Company, defendant herein, they being the lowest and best bidders for the erection of a courthouse building for said county at the county seat, in the town or city of Brackettville, Tex., and thereupon entered into or authorized the erection of said building, whereby said county agreed to pay for the same in annual installments, with 6 per cent. interest thereon, as follows, to wit: (1) Due and payable on the 1st day of January, 1911, the sum of $2,500. (2) Due and payable on the 1st day of January, 1912, the sum of $3,000. (3) Due and payable on the 1st day of January, 1913, the sum of $3,000. (4) Due and payable on the 1st day of January, 1914, the sum of $3,000. (5) Due and payable on the 1st day of January, 1915, the sum of $3,000. (6) Due and payable on the 1st day of January, 1916, the sum of $3,000. (7) Due and payable on the 1st day of January, 1917, the sum of $3,000. (8) Due and payable on the 1st day of January, 1918, the sum of $3,000. (9) Due and payable on the 1st day of January, 1919, the sum of $3,000. (10) Due and payable on the 1st day of January, 1920, the sum of $3,000. (11) Due and payable on the 1st day of January, 1921, the sum of $3,000. (12) Due and payable on the 1st day of January, 1922, the sum of $3,000. (13) Due and payable on the 1st day of January, 1923, the sum of $3,000. (14) Due and payable on the 1st day of January, 1924, the sum of $3,000. (15) Due and payable on the 1st day of January, 1925, the sum of $3,000. Total, $44,500. Said contract and the orders of court adopting it were made at a regular meeting and term of the court when all the members composing the court were present in August, 1910. That at the time said contract was made said court made due provision for the payment of said debt and the interest thereon by the levy and collection of a special courthouse building tax annually of 25 cents on the $100 valuation on all the taxable property in said county, or so much thereof as might be necessary by contract and orders of court in conformity with the letter of the Constitution and statutes of the state of Texas for the purpose of raising sufficient by taxation to pay said annual installments as they fell due, and the interest thereon, which interest was a part of the contract price, and to provide a two per cent. sinking fund. At the same time said court made an order levying said tax for each of said years above named, and made provision for and created a fund or class of funds known as the `County Courthouse Building Fund, Class No. 4,' and against which fund the contractor agreed to register the warrants or county script, which might be issued to him in payment of said courthouse building, which warrants were to be paid off in the order of their registration, all of which registration, etc., in fact has been done, and orders of the court were made at the time adopting said contract and providing for the levy of said tax and the creation of said funds and class of funds, and for the issuance of said warrants from time to time by said court as said court and their architect should inspect the work and pass upon and reject or accept or allow the claims of the contractor for work done and material furnished as the erection of said building progressed, and when said claims were audited and allowed, the payment of the claim was directed according to the letter of the statutes, and said warrants or script were issued and delivered to said contractor, one of the defendants herein, who thereafter duly registered the warrants so delivered against said fund No. 4.

"Fourth. At the time said contract and orders of the court adopting it were made, it was recited in said contract or orders of court that said contract was made on the faith of or under and by virtue of the Constitution and statutes of the state of Texas and the decrees and decisions of the Supreme Courts of Texas, to wit, S. S. Ashe v. County of Harris, 55th Texas, p. 49; Davdis v. Burney, 58th Texas, p. 364; San Patricio County v. John McClane, 58th Texas, p. 243; Creswell Ranch & Cattle Company v. Roberts, 27th S. W. Rep. p. 737; and the Jackson-Foxworth Lumber Company v. Hutchinson, 88 S. W. Rep. 412; and the opinion rendered by the Attorney General on the 7th day of June, 1909, and Tally et al. v. Commissioners' Court of Jackson County (Ala.) 39th South. Rep. p. 167. And that by virtue of or upon the faith of said Constitution, statutes, and Supreme Court decisions and opinions said contract and orders of the court were made.

"Fifth. Plaintiff further shows unto your honor: That said contractors have recently completed said courthouse building, that the same has been accepted by the county, and that said county officials have taken possession of it, and have passed an order to that effect, a copy of which is hereto attached and made a part of this petition. That said commissioners' court have in all things in reference to said courthouse building matter conformed to the seeming letter of the law, or the semblance of authority thereof, and have already paid the first installment due on said contract price and interest thereon and the warrants issued to represent the same, and will continue to do so unless restrained by this court.

"Sixth. Plaintiff further shows that each and every act and all orders made and adopted by said commissioners' court providing for the levy assessment and collection of said special courthouse building tax to pay for said warrants were, have been, and are now in violation of the laws of Texas, in this: That while said court had and has the sole power to determine the necessity for and to make contracts for the construction of said buildings, and to levy an annual tax of not exceeding 25 cents on the $100 in any one year on all the taxable property in said county for such purposes, yet said power of said court is conditioned upon the commissioners' court first borrowing money by the issuance and sale of negotiable interest bearing county courthouse bonds, maturing not exceeding 40 years, as authorized by law, and said taxing power could and can only be exercised by the said court after issuing said bonds. That the permission granted counties to issue bonds restricts them to the only method of incurring said indebtedness and providing for its payment. The said bonds could and can only be issued when and not until the question of issuing bonds shall have been first submitted to the vote of the qualified taxpaying voters at an election duly ordered and held according to law and when and not until the majority of said voters voted in favor of the issuance of said bonds, as required and provided for by the act of the Legislature of the state of Texas, approved May 26, 1899, and by other laws of said state. That said court has in no manner complied with said laws as to the ordering and holding of an election for the issuance of bonds, nor has said court provided for the issuance of bonds in any other manner, but, as before alleged, have constructed, or have had constructed in the manner aforesaid, said building, and have issued in payment to the contractor therefor ordinary county warrants or script on said fund and payable out of said tax levy. Plai...