Wright v. Jones

• Citation: 38 S.W. 249
• Parties: WRIGHT et al. v. JONES.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 31 October 1896
• Court: Court of Appeals of Texas

38 S.W. 249

WRIGHT et al. v. JONES.¹

Court of Civil Appeals of Texas.

October 31, 1896.

Appeal from district court, Jack county; J. W. Patterson, Judge.

Action by N. J. Jones against G. C. Wright and others to recover for an alleged illegal seizure and conversion of certain of his property. There was judgment for plaintiff, and defendants appeal. Reformed.

Stine, Chesnutt & Hurt and Templeton & Patton, for appellants. T. D. Sporer and Nicholson & Nicholson, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

The appellee, as plaintiff, brought this suit to recover actual and exemplary damages on account of the alleged illegal seizure and conversion of his horse by the appellants, who were defendants. The appellants are G. C. Wright, the sheriff and tax collector of Clay county, C. R. Sanders, his deputy, and F. J. Barrett, J. H. Bridges, E. W. Coleman, J. P. Metzger, and A. J. Farmer, members of the county commissioners' court of Clay county, Barrett being the county judge. It is charged in the petition that the defendant Wright and his deputy levied upon the plaintiff's horse in Jack county, by virtue of the tax rolls of Clay county, for taxes claimed to be due by the plaintiff to Clay county; and that the remaining defendants, the county judge and commissioners of Clay county, ordered and advised the illegal levy and seizure; and that the act was done wrongfully, maliciously, and for the purpose of vexing and harassing the plaintiff. The defendants, after pleading the general denial, aver that they were, at the time of the levy, officers of Clay county; that, as such, they were charged with the duty of collecting taxes due Clay county; that the plaintiff, Jones, was indebted to that county for certain taxes; and that the levy was made in Clay county by a deputy sheriff, and by legal authority, to enforce the collection of the taxes thus due. The defendants Barrett, Bridges, Coleman, Metzger, and Farmer aver that they acted as members of the commissioners' court of Clay county; that their conduct was official; and they plead their immunity from an action for damages under such a state of facts.

Our conclusions of fact are as follows: In 1893 the plaintiff, Jones, lived near the boundary line separating Clay county on the north from Jack county on the south. The territory in which he lived was a strip which formed the subject of dispute between the two counties, it being claimed by each that the strip was a part of its territory. It was, in fact, a portion of Jack county. For that year the county commissioners' court of Clay county levied the taxes for county purposes in the usual manner, claiming the property situated in this strip to be subject to those taxes. In making this levy the members of the court honestly believed that the strip in dispute belonged to Clay county, and their action in making the levy and ordering the collection of the taxes within the strip in question was prompted by their sense of official duty. They were not influenced by any malicious motive towards the appellee or any resident within that territory. On February 12, 1894, the commissioners' court of Clay county, composed of the persons already named, ordered the tax collector, G. C. Wright, to proceed with the collection of the taxes on the disputed strip in question, with a further order that Clay county would indemnify him in any damages recovered against him on account of his official action in obeying the order. On April 12, 1894, the sheriff and tax collector, G. C. Wright, through his deputy, C. R. Sanders, made demand of the appellee, Jones, for the taxes claimed to be due under the preceding assessment and levy by Clay county; and, on the refusal of the appellee to pay the taxes, the horse in question was seized (not, however, in any sense maliciously), and, after the usual advertisement, was sold, and its proceeds applied to the payment of the taxes claimed to be due to Clay county. The horse was of the value of $75. The jury returned a verdict against all of the defendants for the principal sum of $75, as actual damages, and the further sum of $325, as exemplary damages. From the judgment entered upon this verdict, the defendants appeal.

Opinion.

Thirty-three assignments of error are presented in appellants' brief. We think, however, that a proper disposition of this appeal may be made upon a decision of four questions involved.

1. We have found as a fact that the strip of territory in dispute between the two counties Clay and Jack is a part of the latter county. This conclusion involves in itself a question of law arising upon the validity of previous orders of the commissioners' courts of the two counties, which we proceed to consider.

On April 29, 1876, at a called term of the commissioners' court of Clay county, the county judge and two of the commissioners being present, that court entered an order appointing Sam Green, the surveyor of Clay county, to run the dividing line between Clay and Jack counties. The order directed that the line should commence at the southeast corner of Clay county and the northeast corner of Jack county; that the surveying should begin on the first Monday in June, 1876; and that the county commissioners' court of Jack county should be notified to appoint a competent person to assist in the running of the line. On July 31, 1876, the county judge and two of the commissioners being present, a second order was entered by the court, reciting the appointment of Green at the April term, 1876, and that he had made a report, according to field notes then set out, that the line had been run on the 6th, 7th, 8th, 9th, 10th, and 11th days of June, 1876, and ordering that the report be accepted, and that the field notes be adopted as the south boundary line of Clay county. On May 30, 1876, the commissioners' court of Jack county, the county judge and three of the commissioners being present, entered an order appointing Wesley Calloway surveyor of Jack county, and ordering him to meet the surveyor of Clay county on the first Monday in June for the purpose of running and establishing the county line of Clay county. November 2, 1876, the commissioners' court of Jack county, the county judge and two commissioners being present, entered an order reciting that Calloway had filed his report of the running of the north and west boundary lines of Jack county, and directing that the clerk record the report on the record of the minutes of the court. The report, consisting of the field notes of the survey, signed by the surveyors, was entered of record.

The question presented is whether the action of the commissioners' courts of Clay and Jack counties in ordering and approving the reports above mentioned was within the jurisdiction of those courts, it being contended that the commissioners' court had no jurisdiction or authority to make the orders referred to. In disposing of this question, we deem it useful, to some extent at least, to review the legislation upon the subject. By the act of May 12, 1846 (Pasch. Dig. art. 1057 et seq.), jurisdiction was conferred upon the county court as then organized, under the constitution of 1845, to appoint a competent surveyor for the purpose of marking the boundaries of the county, when they were not sufficiently ascertained. This law was effective under the constitution of 1869 (section 20, art. 5), and was also in force on the adoption of the present state constitution, which took effect April 18, 1876. By the latter instrument (article 5, § 18), it is provided that "the county commissioners so chosen [according to preceding provisions], with the county judge as presiding officer, shall compose the county commissioners' court, which shall exercise such powers and jurisdiction over all county business as is conferred by this constitution and the laws of this state, or as may be hereafter prescribed." By article 16, § 48, of the same instrument, it is provided that "all laws and parts of laws now in force in the state of Texas which are not repugnant to the constitution of the United States or to this constitution shall continue and remain in force as the laws of this state until they expire by their own limitation or shall be amended or repealed by the legislature." On July 22, 1876, the legislature adopted an act, taking effect from its passage, organizing commissioners' courts and defining their jurisdiction and duties. By section 15 of this act it is provided that the "commissioners' courts shall have and exercise all the powers conferred by law on county courts as...