Walker v. Barnard & Co.

FLY, Associate Justice. — This suit was instituted by appellees against appellant, as county treasurer of Presidio County, to compel him to pay certain warrants that had theretofore been issued by the Commissioners Court of said county. It was alleged, that appellee was a corporation, and the owner and holder, for a valuable consideration, of the warrants which were issued by order of the Commissioners Court of Presidio County; that the warrants were duly registered, and afterwards appellees presented them to the county treasurer, who refused payment of the same. It was also alleged, that the warrants were of the third class, and that there were funds sufficient to pay off claims of that class after paying off other claims of a higher class. There was a prayer for a writ of mandamus to compel appellant to pay off the warrants in the order of their registration out of any funds of their class. Appellant filed general and special exceptions, and answered, alleging that his reason for declining to pay off the warrants was that he doubted their validity, and doubted his right to pay them off to appellee or anybody else, and still continued to doubt his authority; that the Commissioners Court, prior to the presentation of the warrants for payment, had issued two orders, which were still in force, forbidding him from paying the warrants; that he informed appellee of the existence of said orders; that the members of the Commissioners Court should be joined as parties defendant in the suit; that since the issuance of the warrants there had been created out of Presidio County four other counties, none of which had paid any part of the indebtedness of the parent county existing at the time of their creation and proratable under the statute to said counties; that the pro rata of the new counties not having been determined, appellant was not in a position to know how much, if anything, was due by Presidio County. There was also a plea, verified by affidavit, setting np a defect of parties, and asking that the new counties be made parties. The exceptions were overruled, and the case being tried on the facts, there was judgment awarding a writ of mandamus to appellant as county treasurer, as prayed for, and for costs against him as an individual. We find the following facts established by the record: That appellees were the legal owners and holders of the warrants sued on, some of which were issued as far back as 1880, aud all of them had been issued on order of the Commissioners Court of Presidio County. These *16 warrants, which had been duly registered, were presented by appellees to appellant, who was the treasurer of Presidio County, and he refused to pay the same, although he had on hand at time of presentment funds of the class of the warrants sufficient to pay off a portion of the warrants. Prior to the time of the warrants being presented to appellant for payment, the Commissioners Court had issued two orders, and had them recorded, ordering appellant not to pay the warrants. The warrants were regarded by the treasurer (appellant) to be of doubtful validity. After the warrants had been issued four other counties, to wit, Jeff Davis, Brewster, Buchel, and Foley, had been formed from portions of Presidio County. Mandamus lies to compel performance of duties purely ministerial in their nature, and so clear and specific as not to call for the exercise of any discretion in their performance. 14 Am. and Eng. Encyc. of Law, p. 98; High on Ex. Leg. Rem., sec. 112. If the duties of the county treasurer as connected with the payment of warrants are purely ministerial, mandamus would ordinarily lie to compel the payment of warrants issued by order of the Commissioners Court; but if he has the exercise of discretion confided to him by the statutes of this State, he can not be compelled by mandamus to pay the warrants. “While the duty of making payment of a demand definitely ascertained and legally due is in itself purely a ministerial act, and therefore a proper subject of control by mandamus, yet the rule is otherwise if the fiscal officer intrusted with the duty of making payment is also intrusted with power of a discretionary nature in determining the propriety of the demands which he shall pay. In such case, the general principle of forbidding the interference of the courts with the exercise of official discretion is refused.” High’s Ex. Leg. Rem., sec. 115; People v. Chapin, 104 N. Y., 96; The People v. Knickerbocker, 55 Am. Rep. (111.), 879; Mech. Pub. Off., sec. 945. Article 998, Sayles’ Statutes, is as follows: “The county treasurer shall not pay any money out of the county treasury except in pursuance of a certificate or warrant from some officer authorized by law to issue the same; and if such treasurer shall have any doubt of the legality or propriety of any order, decree, certificate, or warrant presented to him for payment, he shall not pay the same, but shall make report thereof to the Commissioners Court for their consideration and direction.” There is no uncertainty or obscurity about this statute. It not only lodges discretion with the treasurer, but specifies, that after the exercise of it he shall report to the Commissioners Court, and that the matter shall then be under their consideration and direction. The facts in this case show that prior to the time that the demand for payment of the warrants had been made on the treasurer, two orders of the Commissioners Court had been issued requiring him not to pay the warrants, and further show, that he had doubts of the validity of the warrants. Appellant exercised the discretion intrusted *17 to him by the statute, and he can not be compelled by mandamus to act in violation of that discretion, unless there was evidence that he had acted arbitrarily and without any reason in the matter. He is protected from this charge by the orders of the Commissioners Court. Delivered June 20, 1894. It becomes unnecessary to notice the numerous assignments of error. The judgment will be reversed and the cause dismissed. Reversed and dismissed.