Howard v. Henderson County

BOND, Chief Justice. W. W. Howard was keeper of th'e Henderson county poor farm from 1904 until November, 1934, under varying contracts of hire with the commissioners’ court of said county. In September, 1934, the commissioners’ court, deeming it advisable to dispense with Mr. Howard’s services on account of his advanced age, he being past 75 years, made and entered on the minutes of the court the following order: “That W. W. Howard and wife be paid $10.00 per month each, in form of warrants drawn on General Fund, during the remainder of their lifetime, to reimburse them for services already rendered. In case of death of either the survivor shall continue to draw $10.00 per month.” At a subsequent term, in November, 1934, the commissioners’ court, for reasons not disclosed, rescinded its order and refused further payment to Mr. and Mrs. Howard, resulting in the institution of this suit, primarily, for writ of mandamus to compel the commissioners’ court to continue such payments; and, alternatively, for judgment in the sum of $3,500.05, alleged discounts on 32 county warrants ($7,488.-05) issued to Mr. Howard from March 31, 1931, to November, 1934, for services rendered as keeper of the county poor farm. The suit is based on allegations that the order in question was the result of a settlement for discounts on warrants, evidencing no other -consideration therefor. At the conclusion of appellants’ testimony, on appellees’ motion, the trial court peremptorily instructed a verdict and entered judgment, denying appellants the relief sought. Appellants contend that the above order of the commissioners’ court, allowing each of them $10 per month during the re *481 mainder of their life, is a final judgment of the court, based upon a valid claim for services rendered, which was audited and settled against the county; and, having all the incidents and properties attached to a similar judgment pronounced by a regularly created court of limited jurisdiction, acting within the bounds of its authority, stands as a liability against the county, not subject to collateral attack. Under the facts of this case, we think there is a total absence of fact giving rise to any legal accounting due appellants, or to confer power or jurisdiction on the commmissioners’ court to allow appellants $10 each per month during their lifetime. It is a settled rule of law in this state that, where a commissioners’ court exceeds its power, attempts to allow and settle accounts. not legally chargeable against the county, its acts are void and may be revoked at any time, or may be attacked collaterally in a court of general jurisdiction. Jeff Davis County v. Davis, Tex.Civ.App., 192 S.W. 291; Cameron County v. Fox, Tex.Com.App., 2 S.W.2d 433; Austin Bros. v. Patton, Tex.Civ.App., 245 S.W. 991. Mr. Howard’s testimony, supported by testimony of his son, is to the effect that he made a written contract with the commissioners’ court of Henderson county for keeping of the county poor farm, in which the court agreed to pay him the sum of $10 per month for each inmate kept on the farm, “payable in cash and not in county warrants.” The date of the alleged contract is indefinite; he testified, in one instance, that it was in March, 1931, and, in another, that it was in 1933; that in 1931 the commissioners’ court agreed to pay him $13 per month for the care and maintenance of each inmate of the county farm; and that, in 1933, the salary was reduced to $10 per month. He further testified that at the end of each month, he presented to the commissioners’ court a sworn itemized account; showing the number of inmates, the amount due at the agreed rate, and the deductible discount necessary for him to realize cash on the county warrants; that the commissioners’ court audited, approved, and directed warrants to be issued by the county clerk for the amount of his claim, in each instance rejecting the item of discount; that he accepted the warrants, discounted them to Athens (Texas) merchants for groceries and supplies at the then market discount •of 40 per cent.; and that in September, 1934, on learning that his s.ervices as keeper of the farm would terminate in November following, he again took up with the commissioners’ court the items of discount, amounting to the sum óf $3,500.05, resulting in the county settling the claim by entering the order in question, allowing him and his wife $10 each per month for their lifetime. There is no contention or evidence that the commissioners’ court contracted to pay discounts on warrants issued to Mr. Howard for services rendered, or that Mrs. Howard was .ever employed to do any service for the county; and the trial of the case having been halted by the court’s action on appellees’ motion for an instructed verdict, there is no controverting testimony to give rise to issues, pleaded in the negative by appellees, as to whether the alleged contract was made by the court, and whether the order in question was the result of a settlement of appellants’ claim for discounts. The minutes of the commissioners’ court and other archives of the county fail to show that any such order was entered in the minutes of the court, or that such contract or bid was on file in the county clerk’s office. However, in view of our disposition of the case — giving absolute verity to appellants’ testimony, if such issues had in fact been controverted and, on a full hearing of the case, determined in appellants’ favor — we fail to see how such findings would support a judgment against the county. Commissioners’ courts, having limited jurisdiction, may act only within the sphere of the powers and duties — express or implied — -conferred upon them by the Constitution and statutes of this state. Subdivision 10 of article 2351, R.S.1925, confers the power and duty on the commissioners’ court to audit and settle all accounts against the county, and direct their payment. The county treasurer, by statute, is the custodian of county funds; and the statute, article 1625, R.S., directs that: “Each county treasurer shall keep a well-bound book in which he shall register all claims against his county in the order of presentation, and if more than one is presented at the same time he shall register them in the order of their date. He shall pay no such claim or any part thereof, nor shall the same, or any part thereof, be received by any officer in pay *482 ment of any indebtedness to the county, until it has been duly registered in accordance with the provisions of this title. All claims in each class shall be paid in the order in which they are registered”; and, article 1713; that: “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 * The language of the statutes is plain, the authority is exclusive and presents no ground for construction. The county treasurer is not authorized to pay claims against the county, except on warrants drawn by some officer authorized by law to issue same; and the commissioners’ court is without power to bind the county by contract or otherwise to pay claims in cash, without providing some means for such payments, thereby giving preference in payment over other registered indebtedness -of the county. The record shows that, at the time of the alleged contract, Henderson county had a registered indebtedness to its general fund in excess of $30,000, and that deferred dates of payment of registered warrants against that fund extended over a period of four or five years, after their registration. The commissioners’ court, at the time of the alleged contract, made no provision for the cash payment of Mr. Howard’s salary, or the refund of discounts on his warrants. Thus, in the absence of an express statute, the commissioners’ court was without authority to direct payment of such claims against the county, except in the manner prescribed by law. Jeff Davis County v. Davis, supra; Nueces County v. Gussett, Tex.Civ.App., 213 S.W. 725. Indeed, in passing upon claims legally chargeable to the county, the commissioners’ court performs a judicial act, and its order, allowing claims, has the force and effect of a judgment and may not be revoked at a subsequent term. Edmonson v. Cumings, Tex.Civ.App., 203 S.W. 428. So, in the instant case, at the end of each month, Mr. Howard, having presented to the commissioners’ court a claim against Henderson county for services rendered as keeper ,of the poor farm, itemized and sworn to, the number of inmates listed and the amount due; and the court having regularly audited and, after deducting items of discount, allowed such claim and directed payment by warrant ; and the warrants having been issued, accepted, and registered with the county treasurer by Mr. Howard, and, in due course, redeemed by the county treasurer, at par value — under such circumstances, Mr. Howard’s several claims became valid charges against Henderson county, and the action of the court, thereon renders the various adjudications and settlements final and binding on appellants; thus, the subsequent action of the court, in giving further consideration to the claims and in allowing Mr. and Mrs. Howard a stipend for life, is void and tantamount to a gratuitous pension, not allowable or sanctioned by law. The Constitution and statutory provisions each provide for limitation on the power and authority, of counties, and municipal authorities of the state, to make grants df public moneys and binding contracts. Section 51, article 3 of our State Constitution, in part declares: “The Legislature shall have no power to make any grant or authorize the making of any grant of public money to any individual, association of individuals, municipal or other corporations whatsoever”; and, Id., § 52, “The Legislature shall have no power to authorize any county, city, town, or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever.” And further, Id., § 53, declares: “The Legislature shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the State, under any agreement or contract, made without authority of law.” Giving effect to limitation on the Legislature to confer power on counties and municipal authorities, to grant public moneys to individuals,, and to make contracts, the courts of this state have uniformly recognized that a commissioners’ court cannot bind the county by ordering a claim • to be paid, which is not made a charge against the county, or make a contract not within the limits of their power. The want of authority is jurisdictional; its action in so doing has no *483 conclusive or binding effect, but, on the contrary, is void. The case of Cameron County v. Fox, Tex.Com.App., 2 S.W.2d 433, involved a claim against the county for the amount of premiums paid by the county tax collect- or on his official bonds, the same having been audited, approved, and ordered paid by the commissioners’ court of the county, and voucher having been issued in favor of the tax collector, indorsed by him and paid by the county, the commissioners’ court subsequently revoked its order and brought suit to recover the amount paid in satisfaction of the claim. The contention was there made, as here, that the commissioners’ court, in the exercise of its general jurisdiction to audit and settle accounts against the county, had the right to determine whether or not such claim was one properly chargeable against the county; and that, having ’determined that it was, (in the absence of a review by the district court) the judgment became final and conclusive, and was not subject to collateral attack. In that case, the Commission of Appeals, in an opinion adopted by the Supreme Court, said (page 436) : “The record affirmatively showing that the commissioners’ court was without jurisdiction, its action in approving defendant in error’s claim was wholly void; hence subject to collateral attack. Notwithstanding the payment to defendant in error was voluntarily made, the same being without lawful authority, the amount so paid may be recovered in an action by the county [citing numerous authorities].” So, we think, the action of the trial court — having as its basis an alleged contract which the commissioners’ court was without power to make, and an alleged subsequent settlement of a claim for discounts on warrants not chargeable to the county, and the order in question conferring on appellants a pension for life, which, under the Constitution, the commissioners’ court could not do — is the only course the court could legally have taken, directing a verdict for appellees and entering judgment accordingly. The judgment of the lower court is affirmed. Affirmed.