text:
    McLEAN et al. v. KISHI et al.
    (No. 6739.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 8, 1915.)
    1. Mines and Minerals &wkey;>77 — Oil Leases —Termination.
    Where a six months’ lease of land for driving oil wells was conditioned that a well must be driven, which would produce a given quantity per day and for a given time, before it was to be considered a paying well so as to give the lessee a permanent lease, the lessor had a right to cancel the lease on a failure of any of the driven wells to produce the contract quantity in the time limited, though they did produce a paying quantity.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 204; Dee. Dig. <&wkey;>77.]
    2. Injunction &wkey;>73 — Acts oe Directors— Injunction et Stockholders.
    Where a board of directors of an oil company contracted to drive wells on lands leased for six months, and that the lease would terminate if a paying well was not prbduced within the time limited, and that a paj'ing well was one that would produce a stated number of barrels a day for a certain number of days, stockholders cannot enjoin a cancellation of the lease because the driven wells produced a paying quantity, though less than the lease called for.
    [Ed. Note. — For other' cases, see Injunction, Cent. Dig. §§ 139, 140; Dec. Dig. &wkey;73.]
    Appeal from District Court, Orange County; A. E. Davis, Judge.
    Suit for injunction by Marrs McLean and others against K. Kishi and others. From a judgment refusing the injunction, complainants appeal.
    Affirmed.
   McMEANS, J.

This is an appeal from an order of District Judge A. E. Davis of the First judicial district, made in vacation, refusing to grant a temporary injunction. The parties have not filed briefs, and the appeal is presented to us on the record alone.

K. Kishi, being part owner of 400 acres of land, entered into a written contract with certain parties on June 10, 1912, whereby they were granted the right to prospect for oil and other minerals thereon. This lease was transferred by the grantees to the Terry Oil Company, and thereafter Kishi, oñ August 12, 1913, by a contract with the Terry Oil Company, renewed the lease, giving the latter six months after September 10, 1913, within which to explore for oil and minerals in the land upon the same terms and conditions as contained in the first. There was a provision in both leases to the effect that when the drilling for oil should have been commenced it should be continuously prosecuted, unavoidable accidents excepted, “until such well is completed so as to produce oil in paying quantities or until it is reasonably certain that oil will not be found in said well in paying quantities.” Another provision is as follows:

“A well producing oil in paying quantities, as mentioned in this contract, is here defined to be a well that will produce by natural flow, or by pumping, as much as 25 barrels of oil every twenty-four hours for a period of thirty days.”

Afterwards the Terry Oil Comimny procured from Isaac Lang, who owned an undivided one-fourth interest in the 400-acre tract, a lease containing practically the same stipulations and conditions as in the Kishi lease, but providing that the lessee should have until March 10, 1914, in which to explore for oil, and providing further that:

“If oil is not found in paying quantities by the 10th of March, 1914, then this lease shall terminate and expire by its own terms.”

In this lease “paying quantities” was defined to mean a production from one well of 20 barrels of oil per day.

Acting under these contracts, the Terry Oil Company with commendable diligence began and continued explorations for oil on the land in question, and, although it drilled and finished a well, it never succeeded in getting a production of 25 barrels per day for 30 consecutive days, nor a production of 20 barrels per day; but oil was discovered at a depth of about 3,100 feet; yet, although modern devices for pumping the oil to the surface were used, the production could not be made to exceed 10 barrels per day. On or about March 13, 1914, Kishi and Lang asserted that, inasmuch as oil in paying quantities had not been produced from their land within the time limited by the lease contracts, the rights of the lessee to longer explore for oil on their land had expired, and this contention was agreed to by a majority of the board of directors of the Terry Oil Company, and they were about to carry the agreement into effect by the execution of releases and placing same upon record, when they were restrained by a temporary restraining order granted by Judge John M. Conley of the Sixtieth judicial district upon the application for an injunction presented to him by the appellants, who are stockholders in said oil company; the judge of the First judicial district being inaccessible at that time. The application was then set for a hearing before Judge Davis at Newton, in Newton county, and on March 20, 1914, was heard by said judge on the application and supporting affidavits and the answers of defendants and contesting affidavits. .By the answers and the affidavits in support thereof, it is made clearly to appear that the limit of time in which the Terry Oil Company was graDted to explore for oil and other minerals on said land had fully expired, and that, said company not having brought in a well of the capacity of either 20 or 25 barrels of oil per day, its right to longer explore for oil on said land had ceased, but, notwithstanding this, the said Kishi had agreed to give to the Terry Oil Company a lease of 135 acres of the 400-acre tract upon terms and conditions that were acceptable to a majority of the board of directors of the Terry Oil Company, and that these parties were about to enter into the new contract when they were enjoined from so doing by the temporary restraining order. The petition for injunction is quite lengthy, and we will not attempt to set out all its allegations. The gravamen of the complaint is that the Terry Oil Company by its expenditure of a large sum of money in exploring for oil, while, on account of many accidents, it had not been able to bring in a well of the capacity stipulated, had nevertheless demonstrated that oil in large and paying quantities existed in the land, and that this had rendered the land very valuable, and that, having by its efforts proved the existence of oil, it had the right to continue operations, notwithstanding the lapse of time granted for such purpose; and that the threatened action of a majority of the board of directors of said oil company to release said land to the owners would, if carried out, work to the plaintiff stockholders great and irreparable injury.

Upon these facts, we think that no error was committed in refusing the temporary injunction applied for. The parties by their contract had fixed and agreed upon a limit of time within-which the oil company might explore for oil, and therein stipulated the terms upon which their right to continue upon the land might be indefinitely extended ; that is, by the bringing in a well of a given daily production. This being their contract, they must be bound thereby, and the courts are not at liberty to extend or enlarge it or vary its terms because of misfortune or accident of the oil company not provided for by the contract, which, without any fault on the part of the landowners, prevented it from successfully bringing in a well of the stipulated daily production. The time limited in the contract having expired, and the oil company having failed to produce oil in the quantity stipulated, the landowners had the right to declare the lease at an end; and we fail to perceive that a majority of the board of directors in undertaking by compromise with the owners to save, or procure a new lease upon, 135 acres of the 400-acre tract, were not in good faith acting for the best interest of the oil company and its stockholders.

The judgment of the court below is affirmed.

Affirmed.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    DUNNE et al. v. SAYERS, Co. Atty.
    (No. 6847.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 23, 1914.)
    Schools and School Distkicts ^ <&wkey;97 — Bonds — Election—Contest—Petition.
    Service of a petition in a suit to contest a school district election to authorize the issuance of schoolhouse bonds, with a notice of contest within the time required by statute, distinctly stating the grounds on which the contest was based, was a sufficient compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3051, providing that a written notice of the contest of an election and a written statement of the grounds on which contestant relies shall be served on the contestee within 30 days after the return of the election, regardless of the fact that the petition was filed before the notice was served.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 224G232; Dec. Dig. &wkey;»97.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Suit by P. J. Dunne and others against Sam R. Sayers, County Attorney of Angelina County, to contest a school district election authorizing the issuance of bonds for the construction of a schoolhouse. A plea in abatement was sustained, and plaintiffs appeal.
    Reversed and remanded.
    W. J. Townsend, Jr., of Lufkin, for appellants.
   PLEASANTS, C. J.

This suit was brought by appellant P. J. Dunne, and others, against the appellee to contest an election held in common school district No. 25 of Angelina county, to determine whether bonds of said district in the sum of $8,000 should be issued for the purpose of securing funds for the erection of a schoolhouse for said district. The election was held on March 7, 1914. Returns were duly made and were canvassed and the result declared by the commissioners’ court of Angelina county on April 13, 1914. The vote at said election, as shown by the returns, was 32 in favor of the issuance of the bonds and 29 against their issuance. In accordance with the returns, the commissioners’ court declared the result of the election to be in favor of the issuance of the bonds by a majority of three votes. On May 11, 1914, appellants filed their original petition in the court below seeking to have the result of said election, as declared by the commissioners’ court, set aside. The grounds of contest as set out in the petition are, in substance: That four persons named in the petition who were not qualified voters were allowed to vote at said election and voted in- favor of the issuance of the bonds. A written notice of the contest and a copy of this petition were served upon the defendant on the day the petition was filed, May 11, 1914, which date was within less than 30 days after the result of the election was declared by tbe commissioners’ court; but tbe notice of contest and copy of tbe petition were not served upon tbe defendant until after tbe petition was filed. On May 13, 1914, contestants, witb leave of tbe court, filed an amended petition, in wbicb tbe grounds of contest were" enlarged by allegation charging that several named persons, in addition to those named in tbe original petition, who were not qualified voters, were permitted to vote at said election and voted in favor of tbe bond issue, and that several named persons who were qualified voters and would have voted against tbe bond issue were not permitted to vote.

On May 14, 1914, tbe defendant filed the following plea in abatement, or motion to abate and dismiss plaintiffs’ suit:

“Now comes Sam R. Sayers, county attorney of Angelina county, Tex., named as contestee in tbe above styled and numbered cause, and, before filing answer herein, moves tbe court to abate and dismiss this suit for tbe reason that the contestants did not, as required by statute, serve tbe contestee witb a notice that they intended to contest said election as required by statute, setting up the grounds in said notice of their contest; and therefore this court has no jurisdiction under tbe Constitution and laws of Texas to hear and determine this cause; said notice not having been given as required bylaw. And of this contestee prays judgment of tbe court.”

On tbe same day, tbe defendant, subject to bis plea in abatement, filed an answer containing a general demurrer and special exceptions to plaintiffs’ petition, and general and special denials of tbe grounds of contest set up in tbe petition. Tbe court below sustained tbe plea in abatement and dismiásed plaintiffs’ suit.

Tbe trial court erred in this bolding. Article 3051 of Vernon’s Sayles’ Statute, which provides that a written notice of tbe contest of an election and a written statement of tbe grounds upon wbicb tbe contestant relies shall be served upon the contestee within 30 days after tbe return day of tbe election, does not prescribe tbe form of tbe written statement; tbe only requirement being that said statement must show the grounds upon wbicb tbe contest is based. The copy of tbe petition, wbicb witb a written notice of tbe contest was served upon tbe defendant within tbe time required by tbe statute, distinctly states the grounds upon wbicb tbe contest was, based. This was a sufficient compliance witb the statute.

In the case of Messer v. Cross, 26 Tex. Civ. App. 34, 63 S. W. 169, this court held that tbe service of citation and copy of plaintiffs’ petition were a sufficient compliance witb the statute above cited. Tbe fact that tbe petition in this case was filed before the notice was served upon the defendant could not possibly affect tbe sufficiency of tbe notice. We have no doubt of tbe soundness of our bolding in the case cited, and it is decisive of tbe question presented by this appeal.

The judgment of tbe court below is reversed, and tbe cause remanded.

Reversed and remanded.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GLOVER v. ALBRECHT, Clerk of Court, et al.
    (No. 6741.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 14, 1915.
    Rehearing Denied Feb. 4, 1915.)
    1. Courts <&wkey;65 — Special Judge — Duration of Term — Death of Regular' Judge.
    Where a special judge was selected in the absence of the regular judge, as authorized by Rev. St. 1911, art. 1678, the enactment of which was authorized by Const, art. 5, § 7, empowering the Legislature to provide for the holding of district courts when the judge is -absent or from any cause disabled or disqualified, the death of the regular judge during the term did not end the term, but the special judge might thereafter grant a new trial in a cause tried at that term.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 230, 246; Dec. Dig. &wkey;65.]
    2. Judges <@=>14 — Special Judge — Appointment.
    Under Const, art. 5, § 7, empowering the Legislature to provide for the holding of district courts when the judge is absent or from any cause disabled or disqualified, the Legislature could not provide for the appointment of a special judge to hold term when the regular judge dies before or during the term and before any special judge has been appointed.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. § 47; Dec. Dig. <@=»14.]
    3. Judges &wkey;>25 — Special Judge — Powers— Death of Regular Judge.
    A special judge dogs not derive authority in any way from the regular judge, so that the rule that the death of the donor of a power destroys the power does not apply to deprive a special judge of power to act after the death of the regular judge.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 99-106; Dec. Dig. &wkey;25.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Mandamus by W. J. Glover against Henry Albrecht, Clerk of tbe District Court of Harris County, and another. Judgment for the defendants, and plaintiff appeals.
    Affirmed.
    See, also, 156 S. W. 5S6.
    Gibson & Wander, of Houston, for appellant. Andrews, Streetman, Burns & Logue, of Houston, for appellees.
   PLEASANTS, C. J.

This is a suit for mandamus, brought by appellant against tbe ap-pellee Albrecht, clerk of tbe district court of Harris county, and the Houston Belt & Terminal Railway Company, to compel tbe issuance of an execution upon a judgment foi $7,500 in favor of appellant against said railway company, rendered by tbe district court for tbe Fifty-Fifth judicial district on April 19, 1911.

No issue of fact is presented by the record. The following statement, upon which appellant bases his claim to have an execution issued upon the judgment before described, is copied from appellee’s brief and is fully sustained by the record:

“The regular March term, 1911, of the Fifty-Fifth judicial district court of Harris county, Tex., convened on March 6, 1911. Thereupon, it being made known that W. P. Hamblen, the regular district judge of said court, was absent and unable to be present, J. A. Read was duly elected special judge for said term of court, receiving a majority of the votes of the practicing attorneys of Harris county, and the said Read on the same day qualified as special judge of said court.
“On April 19, 1911, in that certain suit entitled W. J. Glover v. Houston Belt & Terminal Railway Company, No. 50189, pending in the Fifty-Fifth district court of Harris county, Tex., tried before J. A. Read, special judge, same being a suit for personal injuries by the plaintiff, Glover, against the defendant the terminal company, judgment was rendered in favor of the plaintiff, Glover, and against the defendant the terminal company, in the sum of $7,-500. On the following day, to wit, April 20, 1911, the defendant the terminal company filed its motion for new trial in said personal injury suit No. 50189, entitled Glover v. Houston Belt & Terminal Railway Company.
“W. P. I-Iamblen, the regular district judge of the Fifty-Fifth district court of Plarris county, Tex., died on April 23, 1911. On April 26, 1911, the defendant Houston Belt & Terminal Railway Company, in the personal injury suit of Glover v. Houston Belt & Terminal Railway ■Company, filed its amended motion for a new trial therein; leave to file said amended motion having been granted by Read, special judge. The order of the court authorizing and permitting the filing of said amended motion for new trial is shown in volume 12, p. 160, of the minutes of the Fifty-Fifth district court for the March term, 1911.
“On April 29, 1911, said amended motion for new trial of Houston Belt & Terminal Railway Company in the personal injury suit of Glover v. Houston Belt & Terminal Railway Company, No. 50189, was in all things granted by the court; said order of the court granting said new trial being shown in the minutes of the Fifty-Fifth district court for the March term, 1911, in volume 12, p. 1.63. The order granting the motion for new trial of the terminal company shows that said motion came on for hearing on April 28, 1911, and was granted on April 29, 1911. In other words, the court held said motion under advisement for one day.
“On April 28, 1911, during the March term of the Fifty-Fifth district court of Plarris county, the Governor of Texas appointed William Masterson judge of said court to succeed the deceased, Judge Iiamblen, and on the same date, at 10 o’clock a. m., Masterson qualified as judge of said court by taking the oath of office.
“It was agreed that it was the custom of all of the district courts and district judges of Harris county, Tex., to sign the minutes of said term of court upon the last day of the term, or upon the day when the term is adjourned.
“Exhibit A of the statement of facts, covering two pages and following page 153 of the statement of facts, shows various orders and proceedings had before Judge Read as special judge after the death of Hamblen, the regular judge, on April 23, 1911, down to the adjournment of said term of court on April 29, 1911.
“Volume 12, p. 170, of the minutes of the Fifty-Fifth district court of Harris county, Tex., for the March term, 1911, were signed in open court by J. A. Read, special judge, and by William Masterson, the regular appointed judge of said court as successor of the deceased Judge Hamblen, on April 29, 1911. It was agreed upon the trial of this case that the 6th day of March, 1911, was the first Monday in March, 1911.”

Upon the first trial of this cause, the court below sustained a general demurrer to plaintiff’s petition, and, plaintiff declining to amend, his suit was dismissed. Plaintiff appealed from that judgment, and the Court of Civil Appeals for the Eighth District reversed the judgment and remanded the cause for trial. The opinion of the court on that appeal will be found in 149 S. W. 1192. Upon the second trial, from which this appeal is prosecuted, the cause was heard by the court upon the facts without the intervention of a jury, and judgment was rendered in favor of defendants.

Appellant’s case is based upon the proposition that the death of Judge Hamblen ended the term of the court and the authority of Judge Read as special judge, and therefore the order of Judge Read granting the motion for new trial was void because made after the term of the court had expired, and also because made by a judge whose authority to act as judge of said court had terminated.

We cannot agree with appellant in his contention that Judge Hamblen’s death ended the term of the court or the authority of Judge Read to further act as judge in said cause. Section 7 of article 5 of the Constitution of this state provides:

“The Legislature shall have power, by general or special laws, to authorize the holding of special terms of the court, or the holding of more than two terms in any county for the dispatch of business. The Legislature shall also provide for the holding of district court when the judge thereof is absent, or is from any cause disabled or disqualified from presiding.”

Acting under this constitutional mandate, the Legislature passed the act which is now article 1678 of the Revised Statutes of 1911, which reads as follows:

“Whenever, on the day appointed for a term of the district court, or at any time before the expiration of the term, or the completion of all the business of the court, the judge thereof shall be absent, or shall be unable or unwilling to hold the court, there shall thereby be no failure of the term, and no failure to proceed with the business of the court; but the practicing lawyers of such court present thereat may proceed to elect from their number a special judge of said court, who shall proceed to hold said court and conduct the business thereof, and shall have all the power and authority of the judge of said court, during such continued absence or inability, and until the completion of any business begun before such special judge.”

Statutes have also been passed fixing the time and duration of the terms of the district courts for the various judicial districts in this state.

The March term of the district court for the Fifty-Fifth judicial district, as fixed by the statute, did not expire until the beginning of the May term on the first Monday in May. It has been said by our Supreme Court that:

“When a court is organized and opened for a regular term, the term continues until it is ended by order of final adjournment, or until the efflux of the time fixed by law for its continuance.” Labadie v. Dean, 47 Tex. 100.

This is unquestionably the general rule, and we can see no reason for holding that the term of a court organized and opened for a regular term by a special judge duly appointed in the manner prescribed by the statute must end upon the death of the regular judge; but, on the contrary, every consideration of public welfare is subserved by allowing the court as organized to continue in session until the end of the term as fixed by law, unless the business begun by it is disposed of before that time. This construction of the statute in no way conflicts with the provisions of the Constitution before quoted.

It may be conceded that appellant’s contention that this provision of the Constitution would not authorize the Legislature to pass an act providing for the appointment of a special judge to hold a term of court, when the regular judge dies before the beginning of the term or dies during the term and before a special judge has been appointed. The Constitution provides that a vacancy in the office of judge shall be filled by appointment by the Governor, and only authorizes the appointment of a special judge when the regular judge is “absent,” “disabled,” or “disqualified.” We do not think any of the above terms should be construed to embrace a vacancy caused by the death of the regular judge, and the Legislature has not authorized the appointment of a special judge in such case. It does not follow from this, however, that, when a special judge has been duly appointed in,the circumstances contemplated by the Constitution and statutes, his authority to complete the business he had begun and was appointed to transact should cease upon the death of the regular judge. The power given the Legislature to appoint a special judge in case of the absence, disability, or disqualification of the regular-judge is incomplete and inadequate to affect the purpose of the grant, unless it embraces the power to authorize the special judge to complete the. business begun by him, and we think such power goes by necessary implication with the power expressly, given. The special judge in no sense derives his power or authority from the regular judge, and the general principle that the death of the donor of a power destroys the power or authority of the donee has no application. While this identical question has not been before our courts, we think the conclusion above expressed finds support in the following authorities: Ellis v. State, 56 Tex. Cr. R. 14, 117 S. W. 978, 133 Am. St. Rep. 953; Edwards v. James, 13 Tex. 53; Harris v. Musgrave, 72 Tex. 20, 9 S. W. 90; Montgomery v. Viers, 130 Ky. 694, 114 S. W. 251; Franklin v. Vandervort, 50 W. Va. 412, 40 S. E. 375.

It follows, from the views above expressed, that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <g=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.'

text:
    McDADE et al. v. VOGEL et al.
    (No. 6898.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 17, 1914.
    Rehearing Denied Jan. 28, 1915.)
    1. Paetition t®^46 — Pasties — Necessary Parties.
    Unless all persons having an interest in the land are parties to the suit for its partition, the judgment will not. be binding on any one.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. <§=»46.]
    2. Partition &wkey;>27 — Jurisdiction—Venue.
    The jurisdiction of the district court of a county over a suit in partition brought by plaintiff entitled to sue in that court is unaffected by a pending suit in another county for the same relief, to which plaintiff was not made a party.
    [Ed. Note. — For other cases, see Partition, Dec. Dig. <&wkey;>27; Abatement and Revival, Cent. Dig. § 105.]
    3. Injunction <&wkey;>143 — Temporary Injunction — Service oe Citation.
    A temporary injunction to restrain the prosecution of a suit in another county may be granted without notice when necessary, though the injunction is not binding until service of notice of its issuance.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 315; Dec. Dig. <5&wkey;143.]
    4. Courts <@=»480 — Conflicting Jurisdiction — Staying Proceedings in Other Court — Statutes.
    Rev. St. 1911, art. 4653, providing that suits to enjoin the execution of a judgment or stay proceedings thereon must be brought in the court in which the judgment was rendered, does not apply to persons not parties to the suit in which the judgment was rendered, and they may sue for an injunction in another court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.]
    5. Courts <&wkey;480 — Staying Proceedings in Other Court — Statutes—Applicability. Rev. St. 1911, art. 4653, does not apply where the injunction sought is only ancillary to the main purpose of the suit.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.]
    Appeal from District Court, Waller County; Sam’l J. Styles, Judge.
    Action by Keet McDade and another against Ettie M. Vogel and others. From an order-refusing a temporary injunction, plaintiffs appeal.
    Reversed and rendered.
    J. D. Harvey, of Hempstead, for appellants. Stewarts, of Galveston, for appellees.
   PLEASANTS, C. J.'

This appeal is from an order of the district court of Waller county refusing a temporary injunction in a suit for partition of lands brought by appellants, Keet McDade and J. D. Harvey, against ap-pellees, Ettie M. Vogel, Pearl N. Laney, and C. H. Urban.

The following: statement of facts, upon which the appeal is based, is copied from ap-peilants’ brief, and its accuracy is not questioned by appellees:

On March 18, 1914, Ettie M. Vogel and Pearl N. Laney executed and delivered a deed to defendant O. H. Urban, by which they conveyed to said O. H. Urban an undivided one-third interest in the lands in controversy, which lands lie in Harris county and Kendall county, Tex. Though not expressed on the face of said deed, such one-third interest was, as a matter of fact, vested jointly in appellants (plaintiffs and interveners) and said C. H. Urban, in the proportions alleged in interveners’ plea of intervention in this suit; and by such deed the title to such one-third interest was taken in the name of said O. H. Urban, to be held in trust by him for the use and benefit of such joint owners. At the time of the execution of such deed it was known to said Ettie M. Vogel and Pearl N. Laney that interveners were thereby vested with shares in the undivided one-third interest in such land, and that O. H. Urban was, by such deed, taking title to a part of such one-third interest to hold in trust for interveners, but they did not then know of plaintiffs’ share in same.
On the next day after such deed was executed, to wit, on March 19, 1914, defendant Pearl N. Laney filed suit for partition in the district court for the Tenth judicial district in Galveston county, against defendants Ettie M. Vogel (a resident of said county) and O. H. Urban, and citation was only served upon each of the defendants therein. In such suit so brought in Galveston county partition of the lands in controversy in this suit was sought, in the proportions of one-third to Pearl N. Laney, one-third to Ettie M. Vogel, and one-third to G. H. Urban. On October 6, 1914, judgment was rendered in such suit directing partition of said lands among said parties in the proportions stated above. None of the interveners and neither of the plaintiffs in this suit were parties to that suit.
On September 11, 1914, plaintiffs herein filed this suit in the district court of Waller county against Ettie M. Vogel, Pearl N. Laney, and 0. H. Urban (the last named being a resident of said county), in which the said -plaintiffs set up an individual one-twelfth interest in such lands and ask for partition. In their petition plaintiffs allege the several interests of defendants Et-tie M. Vogel and Pearl N. Laney to be an undivided one-third interest each; the same interest asserted by each of them in said Galveston county suit. Citation was duly issued and was served on defendant Ettie M. Vogel, but was returned not served as to defendant Pearl N. Laney; she being “not found.”
On October 5, 1914, in term time, the court below, upon proper motion, granted leave to interveners to file their plea of intervention herein, which was duly filed on said date,-and thereupon, on the same date, an alias citation was duly issued for defendant Pearl N. Laney, citing her to appear and answer said plea of intervention as well as plaintiffs’ petition.
“In their said plea of intervention the inter-veners, E. E. Urban and four others, allege the several undivided interests of the parties in said lands to be: One-third to defendant Ettie M. Vogel; one-third to defendant Pearl N. Laney; one-twelfth to plaintiffs; the rest being owned jointly by defendant C. H. Urban and inter-veners in the proportions stated in such plea.
On October 14, 1914, defendant Ettie M. Vo-gel filed her amended plea in abatement herein, alleging as grounds for the abatement of inter-veners’ suit, as well as plaintiffs’ suit: (a) The pendency of said suit in Galveston county, and the rendition of said judgment therein on October 6, 1914; and (b) denying that plaintiffs and interveners have any interest in said lands.
Plaintiffs and interveners, on the same day, filed reply to such amended plea in abatement, in which reply they allege, among other things, the following matters which have not been denied by said defendants, viz.: (a) That G. H. Urban was the repository of the naked legal title to the several interests of plaintiffs and in-terveners in said lands, and had no control over, or power in relation to, such interest; and (b) that such denial by said defendants of the said interests of said plaintiffs and interveners was not made in good faith, but was made in the attempt to interfere with the jurisdiction of said Waller county court, and for no other purpose, by injecting an issue of title herein, with full knowledge that plaintiffs and interveners really owned interests in said land as alleged by them. The hearing of such amended plea in abatement has been continued by agreement, without prejudice, pending this appeal.
On October 13, 1914, plaintiffs and interven-ere applied to the judge of said court for a writ of injunction to issue against defendants Ettie M. Vogel and Pearl N. Laney, restraining them, during the pendency of this suit, from further proceeding in the said Galveston county suit, and from making, or attempting to make, either of such applicants a party to such suit.
On October 26, 1914, after a hearing and consideration of said application, and the affidavit of E. E. Urban supplementary thereto (the statements in which are by such judge found to be true), and of the response thereto of Maco Stewart, Esq., attorney of record for said Ettie M. Vogel, and as amicus curise, together with all the exhibits attached to such response, the judge of said court refused to issue such injunction, for the reason, as stated in such order of refusal:
“That the facts alleged and shown are insufficient in law to support a finding that the jurisdiction of this court has properly attached to the subject-matter and controversy and parties herein; but, on the contrary, they do show that the district court of the Tenth judicial district, Galveston county, acquired jurisdiction herein previous to the commencement of this suit. I therefore find that plaintiffs and interveners, because of the insufficiency of the facts alleged and shown, and the fact that the jurisdiction of said court in Galveston county has acquired exclusive jurisdiction herein, are not entitled to the injunction sought.”

Upon these facts the trial court erred in refusing to grant the injunction.

Plaintiffs and interveners were not parties to the Galveston county suit, and therefore are in no way bound by the judgment rendered in that suit. One of the defendants in this suit being a resident of Waller county, under section 13 of article 1830 of the Eevised Statutes the suit could be brought in the district court of that county. The district court of Galveston county, by reason of the residence of Ettie M. Vogel therein, also had jurisdiction of the suit for partition brought against her and C. H. Urban by Mrs. Laney, but that jurisdiction never attached to plaintiffs and interveners herein, none of whom were named as parties in the petition therein filed. These parties having an interest in the land sought to be partitioned were necessary parties to that suit, and the judgment rendered in the suit to which they were not parties was not even binding upon the other parties to that suit. Ship Channel Co. v. Buly, 45 Tex. 8; Holloway v. McIlhenny Co., 77 Tex. 657, 14 S. W. 240. In these circumstances the well-settled principle that the first of two courts of concurrent jurisdiction which acquires jurisdiction of the parties and the subject-matter of the suit becomes vested with exclusive jurisdiction to hear and determine such suit has no application. Langham v. Thomason, 5 Tex. 127; Cooper v. Mayfield, 94 Tex. 110, 58 S. W. 827; Stark v. Carroll, 66 Tex. 397, 1 S. W. 188; Watson v. Jones, 80 U. S. (13 Wall.) 715, 20 L. Ed. 666.

We think it clear that the jurisdiction of the district court of Waller county to hear and determine this suit was in no way affected by the pendency of the Galveston county suit.

There is no merit in appellees’ contention that the court below was without jurisdiction to grant the injunction because citation had not been served upon defendant Pearl N. Laney. When necessary, a temporary injunction may be granted without notice to the defendant. While such course is not generally approved by our courts, there is nothing in the facts of this case which would justify the trial court in refusing the injunction on the ground that Mrs. Laney had not been served with citation. Of course, she would not be bound by the injunction until she was properly served with notice of its issuance.

Plaintiffs and interveners not being parties to the Galveston county suit, article 4653 of our statutes, which provides, in substance, that suit to enjoin the execution of a judgment or stay proceedings thereon must be brought and tried in the court in which the judgment was rendered, does not apply. Winnie v. Grayson, 3 Tex. 429; Seeligson v. Gifford, 46 Tex. Civ. App. 566, 103 S. W. 416.

This article of the statute is inapplicable for the further reason that this is not an injunction suit; the injunction being only sought as ancillary to the main purpose of the suit. Ry. Co. v. Anderson County, 150 S. W. 239.

The court below having acquired jurisdiction of the subject-matter of the suit, and all of the parties at interest being parties to the suit, with service upon Mrs. Laney, who is a resident of this state, and upon whom service can be readily obtained, a final judgment can be rendered in this suit conclusive upon all of the parties at interest and finally disposing of the subject-matter of the controversy. The judgment in the Galveston county court has not done this, and any further proceedings on that judgment must result in confusion and unnecessary costs. In these circumstances we think the orderly administration of law will be subserved by restraining the defendants from further proceedings in the Galveston county suit.

It follows that the judgment of the court below should be reversed and judgment here rendered granting the injunction as prayed for; and it has been so ordered.

Reversed and rendered.
      <@=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    VON ROSENBERG et al. v. LOVETT.
    (No. 5391.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 2, 1914.
    Rehearing Denied Jan. 20, 1915.)
    1. Counties &wkey;>47 — Commissioners’ Courts —Power of.
    . Under Const, art. 5, § 18, creating commissioners’ courts, and conferring upon them the powers granted by the Constitution and laws, the_ commissioners’ courts are courts of limited jurisdiction, having no authority except such as is expressly or impliedly conferred.
    [Ed. Note. — For other cases, see Counties. Cent. Dig. § 55; Dee. Dig. <&wkey;>47.]
    2. Taxation <&wkey;315 — Tax Ferrets — Powers oe Governmental Functions.
    As the duty to discover and place on the assessment rolls omitted personal property is not placed upon any officer, such duties are not governmental functions and may be performed by individuals.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 521, 831; Dec. Dig. &wkey;315.]
    3. Taxation <&wkey;315 — Assessors — Delegation oe Authority to Assistants.
    A contract, whereby the commissioners’ court engaged individuals to perform the duties of the assessor, is not open to objection that the court could not by contract clothe another with governmental functions, as Rev. St. 1911, art. 7580, authorizes the court, in case of the assessor’s failure, to employ other persons to perform his duties.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §| 521, 831; Dec. Dig. <&wkey;>315.]
    4. Taxation <&wkey;336 — Assessment—Duties oe Assessor.
    As it is the general duty of assessors only to assess property rendered for taxation, an assessor is not bound to search for personal property not rendered for taxation, despite Rev. St. 1911, art. 7566, providing that he shall, upon discovering any personal property not assessed or rendered for taxation, list the same.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 565, 567, 569, 570; Dee. Dig. &wkey;> 336.]
    5. Taxation &wkey;>315 — Assessment—Tax Ferrets.
    As Acts 29th Leg. c. 130, relates exclusively to the taxation of real estate, it does not authorize the commissioners’ courts to engage tax ferrets to discover omitted personal property.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 521, 831; Dec. Dig. &wkey;315.] ■
    6. Taxation <&wkey;315 — Assessment—Tax Ferrets.
    The enactment of Acts 29th Leg. c. 130, authorizing the commissioners’ courts to employ tax ferrets to discover omitted real property, does not show that the commissioners’ courts were without power to employ tax ferrets to discover omitted personal property.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 521, 831; Dec. Dig. <&wkey;>315.]
    7. Taxation &wkey;>315 — Assessment—Tax Ferrets — Power of Commissioners’ Courts— ‘ ‘Inspect’ ’ — “Supervise. ’ ’
    Const, art. 8, § 1, declares that all property in the state shall be taxed in proportion to its value. Rev. St. 1911, art. 7564, provides that the commissioners’ courts shall receive the assessment lists or books of the assessor for inspection, correction, equalization, and approval. Article 7570 makes it the official duty of the board of equalization to supervise the assessment of their respective counties. Final Title, § 3, declares that the rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application, but that the Revised Statutes shall be liberally construed with an effort to effect justice. Held, that the commissioners’ courts, which constitute the boards of equalization, may engage tax ferrets to ascertain omitted personal property; for they are given power to “inspect” the assessor’s books, which means to ascertain whether he has included in his lists all property subject to taxation, and are authorized to “supervise” — that is, to oversee — the assessment.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 521, 831; Dec. Dig. <&wkey;>315.
    For other definitions, see Words and Phrases, First and Second Series, Inspect; Supervise.]
    Appeal from District Court, Travis County ; Geo. Calhoun, Judge.
    Action by W. H. C. Lovett against William Von Rosenberg and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    John E. Shelton and E. C. Gaines, both of Austin, for appellants. Fiset, McClendon & Shelley, of Austin, for appellee.
   Statement of the Case.

JENKINS, J.

The suit arose out of a petition for injunction, and is based on the power of the commissioners’ court of Travis county to make the following contract:

“State of Texas, County of Travis.
“Know all men by these presents: That this contract and agreement, entered into this day by and between the county commissioners’ court of Travis county, Tex., party of the first part, and J. Gregg Hill, W. R. Long and J. W. Maxwell, parties of the second part, witnesseth:
“That said parties of the second part agree to point out to the tax assessor of Travis county, Tex., personal property which the owner or owners, or their legal representatives have either failed or refused to assess their taxes for the year 1912, or years prior thereto and such property is not on the county tax rolls and have never been discovered or found by the said tax assessor of Travis county and placed on said rolls.
“That said parties of the second part further agree to furnish such proof to the said tax assessor that such personal taxes should be legally assessed and taxes collected thereon for 1912 or prior years.
“For and in consideration of the services rendered by the said Hill, Long and Maxwell, as hereunto stated the commissioners’ court of Travis county, Tex., hereby agree to pay the said Hill, Long and Maxwell, parties of the second part, a fee of twenty-five (25) per cent, of the full amount of the county • taxes actually collected on such personal property as has been pointed out by them and assessed as hereinbe-fore stated. >
“And the said Hill, Long and' Maxwell are hereby authorized to file suit in any court of competent jurisdiction in Travis county, Tex., to enforce the payment of any such personal taxes so assessed.
“It is expressly agreed and understood that this contract shall not apply to any assessment of personal property placed on the assessment roll by the tax assessor of Travis county up to the date of the meeting of the commissioners’ court as a board of equalization, but to all personal taxes placed on said roll after said date. It is expressly agreed and understood that the county commissioners’ court shall, have the right to contract with any person or firm for the collection of the taxes on personal 'property not heretofore rendered for taxes where the same is discovered in any other county of this state or any other state.
“This contract shall be in force for two years from the date hereof. Witness our hands at Austin, on this the 13th day of May, 1912,” etc.

Omitting formal parts, appellee’s petition reads as follows:

“Tour petitioner, W. H. 0. Lovett, hereinafter styled plaintiff, complaining of Wm. Von Rosenberg, county judge of Travis county, Tex., Tom Anderson, county commissioner of precinct No. 1, Travis county, Tex., W. L. Dodgen, county commissioner, precinct No. 2, Travis county, Tex., R. E. Darker, county commissioner precinct No. 3, Travis county, Tex., Calvin Hughes, county commissioner precinct No. 4, Travis county, Tex., J. Gregg Hill, W. R. Long, J. W. Maxwell, and E. C. Gaines, hereinafter styled defendants, respectfully represents:
“(1) That the plaintiff is a resident of Travis county, Tex. That the defendant Wm. Von Rosenberg is the county judge of Travis county, Tex., and as such is a member of and presiding-officer of the commissioners’ court of Travis county, Tex. That the defendants Tom Anderson, W. L. Dodgen, R. E. Barker, and Calvin Hughes are county commissioners of precincts Nos. 1, 2, 3, and 4, respectively, in Travis county, Tex., and the said judge and the said commissioners constitute the commissioners’ court of Travis county, Tex.; and they aré sued herein in their said official capacities, together with their successors in office. That all of the defendants herein reside in Travis county, Tex.
“(2) That the plaintiff is, and has been for many years prior -hereto, a bona fide resident and citizen of Travis county, Tex. That he is, and has been for many years, a qualified voter in said county, and owns real estate and other property in said county, upon which he pays state and county taxes in said county, and that he is interested in the subject-matter of this suit and has a right to institute the same.
“(3) That heretofore, to wit, on or about the 13th day of May, A. D. 1912, the commissioners’ court of Travis county, which was then composed of R. E. White, county judge, and the following commissioners, Tom Anderson, W. L. Dodgen, R. E. Barker, and Jack Booth, who were commissioners respectively of precincts Nos. 1, 2, 3, and 4, entered into a certain purported contract with the defendants herein J. Gregg Hill, W. R. Long-, and J. W. Maxwell, whereby the said Hill, Long, and Maxwell agreed to point out to the tax assessor of Travis county, Tex., personal property which the owner or owners or their legal representatives have either failed or refused to assess their taxes for the year 1912, or years prior thereto; such property not being on the county tax rolls and never having been discovered or found by the said tax assessor of Travis county and placed on said rolls. And said Hill, Long, and Maxwell further agreed to furnish such proof to such tax assessor that such personal taxes should be legally assessed and taxes collected thereon for 1912 or prior years, and that, in consideration for such service, the said commissioners’ court of Travis county, Tex., agreed to pay to the said Hill, Long, and Maxwell the sum of 25 per cent, of the full amount of the county taxes actually collected on such personal property as might be pointed out by them and assessed as in said contract provided. And the said Hill, Long, and Maxwell were further authorized to file suit in any court of competent jurisdiction in Travis county, Tex., to enforce the payment of any such personal taxes so assessed. But it.was provided that such contract should not apply to any assessment of personal property placed on the assessment roll of the tax assessor of Travis county up to the date of the meeting of the commissioners’ court as a board of equalization, but to all personal taxes placed on said roll after said date, and, further, that the county commissioners’ court should have the right to contract with any person or firm for the collection of taxes on personal property not theretofore rendered for taxes, where the same is discovered in any other county of this state or any other state, and that said contract should remain in full force for two years from the date thereof; that said contract was attempted to be executed by the said parties thereto and was attempted to be ratified, confirmed, and made valid by an order of said county commissioners’ court, spread upon the minutes of said court on the 13th day of May, 1912, which said order is order No. 868 and a true and correct copy thereof, together with a true and correct copy of said purported contract, are hereto attached, marked ‘Exhibit A,’ and hereby made a part of this petition for all purposes.
“(4) Tour petitioner further says that the defendant herein E. O. Gaines has acquired some right or interest in said purported contract, the exact nature and character of which is not known to your petitioner, but is well known to the defendants.
“(5) That, after the execution of said purported contract, the said defendants, Hill, Long, 'Maxwell, and Gaines, did present certain properties to the said tax assessor and said commissioners’ court, after the date of the meeting of the said commissioners’ court as a board of equalization as provided in said purported contract, which said taxes have been regularly assessed on personal property against residents and citizens of Travis county, Tex., that 25 per cent, of the amount of said taxes so assessed aggregates the sum of $3,064.02, and that of said amount of taxes so assessed there has been collected an amount, 25 per cent, of which aggregates the sum of $827.04, and that said sum of $827.04 has been paid over to the defendants Hill, Long, Maxwell, and Gaines; that the aforesaid present commissioners’ court of Travis county, Tox., recognizes said purported contract as a valid, subsisting, and binding obligation upon said court and upon the county of Travis, and are proceeding to collect the remainder of said taxes, and will, unless restrained, pay over to the said defendants Hill, Long, Maxwell, and Gaines 25 per cent, of such taxes as are collected in compliance with the terms of said purported contract.
“(6) That the said purported contract is absolutely void and unenforceable, in that same was beyond the power of the commissioners’ court of Travis county, Tex., and was illegal, and it was not within the power or jurisdiction of said county commissioners’ court of Travis county, Tex., to make any agreement to pay over to the defendants or any other person any percentage of taxes collected on unrendered personal property, or any other sum in consideration for the services agreed to be performed by said defendants Hill, Long, and Maxwell in said purported contract. But all the duties and services agreed to be performed in said purported contract are duties and obligations by law imposed upon the tax collector, tax assessor, commissioners’ court, and county attorney.
“(7) That, as aforesaid, your petitioner is a bona fide resident citizen, qualified voter, and taxpayer of the said Travis county, Tex., and is interested in the disposition of the county funds and the proceeds of the aforesaid taxes to be collected from personal property. That, if the defendants are not enjoined and restrained from paying out and receiving 25 per cent, of the proceeds.of such taxes as were assesssed as aforesaid under the provisions of said purported contract and have not been paid, then the said sums will be paid out by said commissioners’ court as aforesaid, and said sums will be lost to the said county and the taxpayers thereof, and great and irreparable injury will be done to said county, the taxpayers thereof, and your petitioner in particular, and your petitioner has no adequate remedy at law.
“Wherefore your petitioner prays that a temporary injunction be granted your petitioner, enjoining and restraining the aforesaid county judge and county commissioners in their aforesaid official capacities as members of the county commissioners’ court of Travis county, Tex., from paying over to the said defendants Hill, Long, Maxwell, and Gaines, or any of them, any further sum or sums upon said purported contract during the continuance of this suit, and that upon final hearing hereof said injunction may be made perpetual and said purported contract be declared null, void, and of no force and effect, and that citation issue to the defendants and each of them, commanding them to appear and answer in this cause, and that, in addition to the relief hereinbefore prayed for, your petitioner have such other and further relief, general and special, legal and equitable, as he may appear entitled to, and that he recover his costs.”

The defendant E. O. Gaines filed an answer showing that he had acquired, no interest whatever in said contract, and that his only connection with the same was in the capacity of attorney before the board of equalization, in this suit, for a definite fee, and the defendant J. W. Maxwell filed a disclaimer, and the suit against Maxwell and Gaines was thereupon dismissed.

The other defendants answered by a general exception only, which the court overruled, and declining to answer further, and admitting that the facts were in their legal effect substantially as alleged in the petition, the court entered a judgment perpetuating the injunction as prayed for.

Opinion.

It is the contention of appellants: (1) That the commissioners’ court had express authority to make the contract above set out. (2) That it had implied authority so to do.

The laws of this state bearing most directly, as we think, upon the questions at issue, are:

Section 18, art. 5, of the Constitution, which creates the commissioners’ courts, and confers upon them such powers as are granted by the Constitution and the laws of this state.

Section 18, art. 9, of said Constitution, which constitutes commissioners’ courts boards of ‘equalization for their respective counties.

Article 7564, R. S., which reads in part as follows:

“Boards of Equalization. The commissioners’ courts of the several counties of this state shall convene and sit as boards of equalization on the second Monday in May of each year, or as soon thereafter as practicable before the first day of June, to receive all the assessment lists or books of the assessors of their counties for inspection, correction or equalization and approval. (1) They shall cause the assessor to bring before them at such meeting all said assessment lists, books, etc., for inspection, and see that every person has rendered his property at a fair market value, and shall have power to send for persons, books and papers, swear and qualify persons to ascertain the value of such property and to lower or raise the value on the same. (2) They shall have the power to correct errors in assessments. (3) They shall equalize improved lands in three classes, first class to embrace the better quality of lands and improvements, the second class to embrace the second quality of lands and improvements, and the third class to embrace lands of but small or inferior improvements. The unimproved lands shall embrace first, second and third class, and all other property made as nearly uniform as possible. (4) After they have inspected and equalized as nearly as possible, they shall approve said lists or books and return same to the assessors for making up the general rolls, when said board shall meet again and approve the same, if same be found correct.”

Article 7570, which reads in part as follows:

“The boards of equalization shall have power, and it is made their official duty, to supervise the assessment of their respective counties.”

Other portions of our statute relative, or claimed to be relative, to the issue involved herein, will be referred to in subsequent portions of this opinion.

Commissioners’ courts in this state, as will be seen from the above references to our Constitution, are courts of limited jurisdiction, having no authority, except such as is expressly or impliedly conferred upon them by law. This is true of like bodies, by whatever name called, in all other states of the Union.

The issues presented in this case have not been passed upon by the courts of this state, but the exact or similar questions have been decided by the courts of last resort in other states, under statutes sufficiently similar to ours to constitute such decisions authority in the instant case.

It is conceded by appellee that the decisions of the Supreme Court of Iowa uphold the contention of the appellants as to the implied power of the commissioners’ court to make the contract above set out. See Disbrow v. Board of Com’rs, 119 Iowa, 538, 93 N. W. 585; Shinn v. Cunningham, 120 Iowa, 383, 94 N. W. 941; Wilhelm v. Cedar County, 50 Iowa, 254. To the same effect is Fleener v. Litsey, 30 Ind. App. 399, 66 N. E. 82; Garrigus v. Board of Com’rs, 157 Ind. 103, 60 N. E. 948; Richmond v. Dickinson, 155 Ind. 345, 58 N. E. 260; Wayne County v. Dickinson, 153 Ind. 682, 53 N. E. 929; Martin v. Whitman County, 1 Wash. 533, 20 Pac. 599; Burnett v. Markley, 23 Or. 436, 31 Pac. 1050; State v. Hall, 37 Or. 479, 63 Pac. 13; Blades v. Hawkins, 240 Mo. 187, 112 S. W. 979, 144 S. W. 1198, Ann. Cas. 1913B, 1082; Prothero v. Com’rs, 22 Idaho, 598, 127 Pac. 175; Harris v. Gibbins, 114 Cal. 418, 46 Pac. 292.

As to the public policy of such contracts, the court, in Disbrow v. Com’rs, supra, said:

“The purpose of the contract in question is commendable, to say the least. Its clearly expressed purpose is to aid the county in its search for property which has been omitted from taxation, and to assist in collecting the amount found due on account thereof.”

In Richmond v. Dickinson, supra, the court said:

“Public policy demands that every taxpayer contribute his just proportion to the expenses of government.”

That case was very similar to the instant case, in that the appellee was employed to search out and report to the city clerk, whose functions were similar to those of the tax assessor under our statute, property which had been secreted and omitted from the tax rolls, for which he was to be paid a fee equal to 20 per cent, of the amount of taxes collected by reason of his discoveries. It was denied generally that the city council had the power to make such a contract, and specifically for the reason that the services that appellee was employed to perform lay within the official duties of the tax officers of the city. The law made it the duty of the city clerk to assess property for taxation “whenever he shall discover, or receive creditable information or shall have reason to believe that any real or personal property has, from any cause, been omitted, in whole or in part,” from the tax roll. In construing this statute, the court held that it was not the duty of the city clerk to hunt for the omitted property. The statute of Indiana empowered common councils “to levy and cause to be assessed and collected in each year an ad valorem tax of not more than one per cent, for general purposes on all property subject to state and county taxation.” The court said:

“This general power is worthless, unless it carries with it the right to use means efficient for its enforcement.”

The statutes of Idaho made it the duty of the county commissioners to examine and audit the accounts of other county officers. The commissioners employed an expert accountant to examine such accounts. In upholding this action, the court, in Prothero v. Com’rs, supra, said:

“Power to accomplish a certain result, which evidently cannot be accomplished by the person or body to whom the power is granted, without the employment of other agencies, includes the implied power to employ such agencies.”

To the same effect, upon a similar state of facts, is Blades v. Hawkins, supra. In the latter case Bland, Chief Justice, dissented upon the ground that the services to be performed by the accountant were specifically imposed by statute on the commissioners’ court. Even if he was right in this, it does not weaken the principle announced by the majority of the court. The fact that the commissioners’ court cannot, in the absence of a statute specifically authorizing them to do so, confer governmental functions on any one, does not argue that they cannot, in carrying out the general purposes for which they were created, employ an agent to do those things which are not the official duty of any officer.

The case of Stevens v. Henry County, 218 Ill. 468, 75 N. E. 1024, 4 L. R. A. (N. S.) 339, 4 Ann. Cas. 136, cited by appellee, rests upon the fact that supervision in the matter of assessment of taxes had by statute been taken from the commissioners’ court, called in that state “board of supervisors,” and conferred upon another body, called a “board of review,” composed of the county treasurer and two others selected for that purpose. The contract was not made by the board of review, but by the board of supervisors, who had nothing to do with the supervision of matters of taxation. The court, in the Stevens Case, supra, rejects the authority of Fleener v. Litsey, Garrigus v. Howard County, Richmond v. Dickinson, and Wayne County v. Dickinson, supra, for the reason that they were based “upon a peculiar statute” of Indiana. This statute limits the power of the commissioners’ court to employ any person to perform any duty to be paid for by commission or percentage, which is a legislative recognition that, without such limitation being fixed by statute, the commissioners’ court had the implied authority to make the contracts therein forbidden. The contracts in those cases were upheld for the reason that they were not embraced within the restrictions imposed by the statute upon the powers of the commissioners’ court.

In Coleman v. Fry, 77 Kan. 540, 95 Pac. 392, 16 L. R. A. (N. S.) 477, a contract similar to the one in the instant case w'as held void. But the decision rests upon the fact that the statute of Kansas had “assigned the several steps in the system and procedure to designated officers of the townships and counties of the state. It has imposed upon certain officers the very duties which, by the contract in question, the county commissioners undertook to employ Moir to perform.” In the case of Pierson v. Minnehaha County, 28 S. D. 534, 134 N. W. 212, 38 L. R. A. (N. S.) 261, the Supreme Court of South Dakota similarly construed the statutes of that state. In that state, as in Illinois, the statute (Pol. Code, § 2075) intrusted the assessment of delinquent taxes to certain named officers, and the commissioners’ court appear to have no power of supervision in this matter. The case of Chase v. Com’rs, 37 Colo. 268, 86 Pac. 1011, 11 Ann. Cas. 483, is based upon a statute which imposes the duty and confers the power upon tax assessors to discover, as well as to assess, unrendered property. The court says:

“They are given the power to discover, and furnished with facilities to bring to light, omitted assessable property.”

In House v. Los Angeles County, 104 Cal. 73, 37 Pac. 796, the court said:

“We do not, however, base our decision upon the ground that the duties devolving upon respondent are of such a character as called for the exercise of discretion and judgment, but upon the broader ground that, the statute having confided those duties to officers specially designated by law for their discharge, the supervisors have no authority, express or implied, in the premises, and hence that the contract was beyond the jurisdiction conferred upon the board.”

In Grannis v. Blue Earth Co., 81 Minn. 58, 83 N. W. 496, wherein a contract similar to the one here in question was held void, the court said:

“The Legislature has provided officers whose duty it is to levy all taxes, officers to cause all property to be properly assessed and placed upon the tax rolls, and officers for the collection of such taxes. The county commissioners, as officers and agents of the county, have no authority over any of these officials with respect to the performance of their duties.”

In Platte County v. Gerrard, 12 Neb. 244, 11 N. W. 298, wherein a contract for services to enable the commissioners’ court to place upon the tax list certain lands, which had been erroneously omitted therpfrom, was held void, the court said that the services contemplated in the contract were within the duties imposed by law upon the commissioners’ court. The decision in Frederick v. Douglas County, 96 Wis. 411, 71 N. W. 798, wherein the appellant was employed to perform the duties incumbent upon the district attorney, announces the same principle.

In other words, these cases hold that the statutes of the several states in which these opinions were rendered conferred no express authority upon the respective commissioners’ courts to deal with the subject-matter of the contracts involved, and therefore there was no implied power to make such contracts. In the other line of cases above cited, the effect of the decisions therein is that, the power to deal with the subject-matter having been conferred upon the commissioners’ court, it would he implied that the Legislature intended to grant them whatever authority was necessary to enable them to properly discharge their duties. In the instant ease we hold, for reasons hereinafter stated, that express power is conferred upon commissioners’ courts of this state to deal with the matter to which the contract pertained.

¥e also hold that the duties to he performed under sai'd contract were not such as were specifically required of any officer, and therefore were not governmental functions.

We now proceed to apply the principles annunciated in the cases cited to the statutes of our state.

It is the contention of appellants that the commissioners’ court had express authority to make the contract involved herein, by virtue of article 7560, R. S., wherein the commissioners’ court are authorized, in the event the assessor fails to perform any of the duties required of him by law, to employ some other person to perform such duties. If it be the official duty of the' assessor to perform the services provided for in said contract, the objection that the commissioners’ court could not by contract clothe another with such governmental functions would not apply, for the reason that in such event they would be specially authorized by statute so to do. But we do not think that the services to be performed under the contract are a part of the official duties of the tax assessor. His duty, generally speaking, is to assess property rendered to him for taxation. Article 7566, R. S., requires:

“If he shall discover in his county any property belonging to a resident of the county and (any) personal property which has not been assessed or rendered for taxation every year for two years past he shall list and assess the same,” etc.

The services provided for in the contract are shown by the evidence to require that the records of Travis and other counties in the state be searched, involving much labor. We find nothing in the statute requiring the tax assessor to do this work,' and no provision made for paying him therefor.

Nor do we agree with appellant that express authority to make the contract is conferred upon commissioners' courts by chapter 130, Gen. Laws of the 29th Legislature, p. 318, for the reason that said act relates exclusively to the taxation of real estate.

Appellee argues that the passage of said chapter 130, empowering the commissioners’ court to employ assistants in discovering unrendered real estate, is a legislative construction of our statute, that without such statute no such power existed, and that, if no such power existed as to real estate, it should be held, in the absence of special statute, that it does not exist as to personal property. What the Legislature thought about the matter does not appeal to us with much force, as it is well known that Legislatures frequently enact laws that are simply declaratory of the common law. This is often done for the purpose of making certain the law, which everybody is presumed to know, but which in fact few do know. It may also be said that this chapter is a declaration on .the part of the Legislature that it was not, and had not theretofore been, the duty of the tax assessor, nor of the commissioners’ court, to do the work therein specified, and, if not as to real estate, it is not as to personal property. The official duties of the tax assessor and of the commissioners’ court are enumerated with much detail and particularity, but nowhere in the statute is, it made the duty of either of them to ferret out and place, or cause to be placed, upon the tax rolls, unrendered personal property; and, in view of the well-known proclivity of owners of this character of property not to render the same for taxes, it is necessary that this work be done by some one, in order to carry our tax laws into effect. The great variety of duties and the labor involved in the discharge thereof precludes the idea that the commissioners’ court are expected to do this work.

In view of the fact that the Constitution authorizes the Legislature to intrust the business affairs of the counties to commissioners’ courts, and has created no other body to exercise such management in the general business of counties, section 3 of the Final Title of our Revised Statutes appeals to us with peculiar force when dealing with the implied powers of commissioners’ courts. Said section is as’follows:

“The rule of the common law that statutes in derogation thereof shall be strictly construed, shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this state respecting the subjects to which they relate, and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.”

What is “justice” in the matter of taxation? It is that all property shall bear its just proportion of taxes. In the language of the Constitution that:

“All property in this state, whether owned by natural persons or by corporations, * * * shall be taxed in proportion to its value.” Article 8, § 1.

It is the “object” of our tax laws to carry into effect this constitutional provision, which accords with the dictates of justice. This cannot be done if the tax dodger is permitted to escape. It has not been made the express duty of any officer to hunt him out. Neither the tax assessor, nor the commissioners’ court, nor any other official, is clothed with inquisitorial power in this matter, as is the case in some other states. Has the commissioners’ court implied authority to secure the assessment of personal property which the owner has failed to render for taxation? We think so.

Article 7564, supra, provides, among other things, that commissioners’ courts shall receive the assessment lists or books of the assessor “for inspection, correction, equalization and approval.” Inspection implies the ascertainment of whether or not the assessor has included in his lists all property subject to taxation. As reasonable men, the commissioners are presumed to know what is known by all men, that, unless the assessor has done more than his official duty, a considerable amount of personal property subject to taxation will not appear upon his books. If they have used no means to ascertain and locate such property, the books being otherwise correct, they must of necessity approve the same, though they do not believe them to be correct. The statute makes it their duty, if needs be, to have the assessors’ books corrected, and this to the end that the tax laws of the state shall be enforced. As information with reference to unrendered property is necessary to enable them to perform this duty, and as no other means has been provided by law to enable them to obtain such information, we believe that they have the implied power, under this article of our statutes, to employ some one to ferret out and report the personal property which would otherwise escape taxation. Upon such report being made to the assessor, it would become his duty to assess such property. Article 7566, R. S. And the commissioners, by examining such report in connection with the assessor’s boohs, could determine whether they ought to be corrected, or approved as submitted. The employment of some one to perform the services required under the contract herein is a reasonable means to enable the commissioners’ court to discharge the duties imposed upon them by said article 7564, for which reason we hold that they had the implied power to make said contract.

We think that they also had such implied power under article 7570, which makes it the official duty of the board of equalization (commissioners’ court) “to supervise the assessment of their respective counties.” To supervise does not mean to do the work in. detail, but to see that it is done. It means to oversee, with power of direction. To oversee the assessment of taxes is first to ascertain whether or not the assessment has been correctly made, which includes the assessment of all property subject to taxation in the county, and, if any has been omitted, to direct that the same be placed on the books of the assessor. To discharge this duty, they have the power to employ some one to search out and report the personal property subject to taxation, which has not been rendered for taxation. Without this, no other means being provided by law for the ascertainment of such fact, they cannot discharge their duty as supervisors of the assessment of taxes. When the law requires the performance of a duty by any one, it impliedly grants him the power to do the things reasonably necessary to discharge such duty. It would be a vain thing to impose upon any one a duty, and deny him the means whereby he could perform such duty.

For the reasons stated, the judgment of the trial court is reversed; and, as it is admitted that the facts are substantially as alleged in the petition, judgment is here rendered for appellants, dissolving the injunction and dismissing the case.

Reversed and rendered.
      (&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      ©s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    BEAUMONT IRRIGATING CO. v. DE LAUNE.
    (No. 6719.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 23, 1914.
    Rehearing Denied Jan. 14, 1915.)
    1. Trespass to Try Title <&wkey;50 — Costs and Fees — Surveyors’ Fees.
    Under Rev. St. 1911, art. 7747, providing, relative to actions of trespass to try title, that the presiding judge may appoint a surveyor who shall survey the premises, the surveyor should be allowed reasonable compensation to be taxed as costs against the party cast in the suit.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 80, 81; Dee. Dig. <&wkey; 50.]
    2. Costs &wkey;>209 — Taxation by Clerk — Effect.
    Under Rev. St. 1911, art. 3714, providing that, after the adjournment of every district or county court, it shall be the duty of the clerk thereof to tax costs in every case in which the final judgment has been rendered against the party liable therefor, under the judgment, and to issue execution for the enforcement of such judgment and the collection of such costs, while the better practice would be for the court to fix the amount that should be allowed a surveyor in trespass to try title, if this is not done, and the clerk enters the charge in his fee book from memoranda in his office or otherwise, or if the clerk, before the execution is issued, taxes, as costs, any other charges which are properly costs and reasonable in amount, the amount taxed stands as a judgment against the party cast in the suit, until such time as the court, upon motion of the party complaining thereof, shall adjudge that the items so taxed are improper, or that the amounts thereof are too large.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. § 789; Dec. Dig. &wkey;>209.]
    3. Bimitation of Actions &wkey;>28 — Collection of Costs — Execution.
    Where a judgment in trespass to try title awarded costs to the successful party, the limitations of two and four years did not apply to their collection by execution, as those statutes are applicable only where the party entitled to costs, instead of availing himself of the writ of execution, as provided by the judgment for their collection, brings an independent suit against the party liable for the costs.
    [Ed. Note. — For other cases, see Bimitation of Actions, Cent. Dig. §§ 134, 135, 142; Dec. Dig. <®^>28.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by A. De Baune against the Beaumont Irrigating Company. From a judgment striking items from a bill of costs, defendant appeals.
    Reversed and remanded.
    Bipscomb & Bipscomb, of Beaumont, for appellant. H. G. Robertson, of Dallas, for appellee.
   McMEANS, J.

This is a proceeding by motion of appellee, plaintiff below, to retax costs in cause No. 2658, styled A. De Baune v. Beaumont Irrigating Company, tried in the district court of Jefferson county. He alleged that certain items of costs taxed by the clerk were not properly taxable as costs and never constituted any portion of the cost of suit; but, if such items were in fact costs áccruing in the case, they were not taxed by the clerk within two years nor within four years next after the judgment was rendered, and were therefore barred by the statute of limitation of two and four years. The motion was sustained by the court, and all the items of costs complained of were stricken from the bill of costs. From this action of the court the defendant has appealed.

A sufficiently full statement of the case and the facts proved is made in the findings of fact by the trial judge, which is here copied in full:

“The original suit between the plaintiff and defendant in this cause involved the title to 230 acres of land out of the J. Gerish league in Jefferson county, Tex. A final judgment was rendered in the district court in said cause on the 12th day of March, 1904, and on the 12th day of January, 1905, the said judgment was affirmed by the Court of Civil Appeals for the First Supreme Judicial District, at Galveston, and by the judgment of said courts the costs were adjudged against the plaintiff. The total costs at the time of the rendition of the final judgment by the Court of Civil Appeals amounted to the sum of $79.55, and was paid by the plaintiff, excepting the sum of 87 cents. At the time of the payment of said costs, and at the time of the entry of said final judgment, the items of cost complained about in the motion now under consideration did not constitute any part of the costs which the plaintiff paid, nor were any of the items at that time entered up against said plaintiff on the clerk’s fee book, or’ docket, nor did they constitute any part of the bill for costs rendered to the plaintiff.
“On or about the 27th day of May, 1909, the clerk of this court, at the instance and request of defendant’s counsel, and without notice to the plaintiff or his counsel, entered upon the cost or fee docket in the clerk’s office, under the head of miscellaneous cost, the following items, to wit:
To J. A. Pelt. $ 16 00
To J. A. Pelt, witness fee. 8 00
To Stinson, court surveyor. 99 55
To L. J. Kopke. 35 95
To Stinson, witness fee. 25 00
To Reynolds, deputy. 12 40
To J. Hatcher. 10 08
To Stinson, witness fee. 45 00
To L. J. Kopke. 40 00
To surveyor’s fee. 91 00
Total . $383 18
“Thereafter, on or about May 81, 1909, defendant’s counsel, acting for and on behalf of the Beaumont Irrigating Company, sued out a writ of scire facias, and duly served plaintiff with same on the 1st of June, 1909. Thereafter, on the 8th of October, 1909, judgment was entered in the district court, reviving the original judgment in cause No. 3658, and also adjudicating the said items of cost as entered by the clerk, at the instance of the defendant company as aforesaid and holding the plaintiff, A. De Laune, liable for same, and ordering execution to be'issued therefor.
“Thereafter an appeal was taken from the decision of the district court on the writ of scire facias, and on or about the 20th of .March, 1911, the Court of Civil Appeals, in an opinion rendered on that date, affirmed the decision of the lower court, reviving the judgment in said cause No. 2658, but held said judgment erroneous in so far as it undertook to adjudicate and determine the items of cost complained of in this motion.
“When the original suit was tried in the district court; said court, by order duly entered, appointed a surveyor to survey the lines of the tract of land in controversy in said suit. A. B. Doucette made the first survey of said land under said appointment. There was also another cause pending in said court at the time of the appointment of Mr. A. B. Doucette, as surveyor, being styled A. De Laune v. W. B. Dunlap, and being No. 2657,. on the docket of said court, in which he was also appointed to make a survey. The orders of appointment do not specify the apportionment of the cost of said surveys. Mr. Doucette made his surveys and filed his reports, and for the same charged the sum of $91. On the 6th day of April, 1903, the Beaumont Irrigating Company, by its check No. 335, paid Mr. A. B. Doucette the sum of $91 for said surveys. Said sum was voluntarily paid by the said Beaumont Irrigating Company without any action of the court upon said claim, and the whole sum of $91 entered as a cost item by the clerk against the plaintiff in cause No. 2658, as above stated.
“Thereafter another order was entered by the court in original cause No. 2658, appointing Mr. L. J. Kopke, a surveyor selected by the plaintiff, and Mr. A. Stinson, a surveyor selected for the defendant, to make a joint survey, which they did, and filed their report in said cause. Thereafter the defendant, without any previous action of the court upon the claims for such surveys and incidental expenses connected therewith, hereinafter enumerated in detail, voluntarily paid such amounts, taking a receipt therefor, to wit:
“On September 22, 1902, the defendant, Beaumont Irrigating Company, paid J. A. Pelt the sum of $16 for ‘services as chainman with Mr. Stinson in the De Laune Case.’
“On September 23, 1902, Beaumont Irrigating Company also paid J. A. Pelt $8 for ‘expenses of Mr. Pelt in witness attendant in the De Laune Case.’
“On September 23, 1902, Beaumont Irrigating Company paid A. E. Stinson the sum of $99.55 for ‘survey and expenses incurred in making the survey of the Gerish and adjoining lands, as follows: Twelve days for himself, at $10, $120; three trips Houston to Beaumont and return, $15;' one trip to Beaumont to China and return, $.90; expenses trip Houston to Austin and return, $17.55; 8 days chain-man, at $2, $16 — total $169.55, less amount paid by cash, $70, balance due, $99.55.’
“On September 24, 1902, Beaumont Irrigating Company paid L. J. Kopke the sum of $35.95 for ‘services in the De Laune suit on Gerish league and expenses incurred.’
“On December 15, 1903, Beaumont Irrigating Company paid A. E. Stinson $25 as follows: ‘To court attendance, two days at $10, $20; railroad fare Houston to Beaumont and return, $5 — total, $25.’
“On January 20, 1904, Beaumont Irrigating Company paid C. R. Reynolds $12.40 for taking the deposition of Stephen Hatcher, Sr., a witness in said cause.
“On January 23, 1904, the Beaumont Irrigating Company paid J. Hatcher $10.08 for ‘court expenses De Laune Case.’ The clerk of the district court on the 23d day of January, 1904, issued to said J. Hatcher a certificate for witness fees, showing that the witness had traveled 34 miles to be in attendance on the court as witness, for which he was entitled to $8.04.
“On January 23, 1904, Beaumont Irrigating Company paid A. E. Stinson $45 as follows: ‘For four days attendance De Laune Case, $10 a day, $40; and for railroad fare Houston to Beaumont and return, $5 — $45.’
“On January 17, 1905, Beaumont Irrigating Compány paid L. J. Kopke, a surveyor, the sum of $40 as follows: ‘For attendance at district court as expert witness in case of A. De Laune v. Beaumont Irrigating Company, September 17, 22j and 23, 1902, December 15, 1903, and January 20, 21, 22, and 23, 1904, and also eight blueprints of maps in said cause.’
“There is no order or judgment of any kind made by the district court trying said cause allowing any portion or part of any of the claims herein enumerated, as fees to surveyors, chain-men, expert witnesses, etc., nor was there any action of any kind by the district court in reference to any of said items in allowing same as part of the costs in the trial of the original suit.”

We think it apparent from the judge’s findings that what he meant by the statement that “the total costs at the time of the rendition of final judgment by the Court of Civil Appeals amounted to the sum of $79.55” was that the total costs taxed at that time amounted to said sum.

To the judge’s findings we add that it appears that no execution or writ" of possession had been issued prior to the time the clerk taxed the items of costs complained of. Upon the facts found by the judge he based his conclusions of law, which are as follows:

“None of the items entered by the clerk at the instance of defendant’s counsel were ordinary fees or charges in this case, excepting the costs of taking the deposition of Hatcher, Sr., $12.40, and the witness fee to the witness Hatcher in the sum of $10.08.
“The other charges could only have become costs in this cause by due allowance of the court, on proper showing that the same were reasonable, and by judgment duly. entered,. allowing the same as costs in said original suit.
“There was therefore no authority, for taxing said items’ excepting the two herein stated, as was done in this case by the clerk at the time of doing so, without an order of the court allowing such items as costs, and the same should be stricken from the fee docket.
“I further conclude that all of said items, including the claim for taking the deposition of the witness Hatcher, Sr., and also the claim for witness fees to the witness Hatcher, were barred by the two years’ statute of limitation. A revival of the judgment after the period of limitation had expired on the claims as. above enumerated would not and could not in any way destroy the intervening right of the plaintiff to defeat the collection of said claims under the two years’ statute of limitation.”

By its first assignment of error appellant asserts that plaintiff failed to affirmatively show that the items of costs were improperly taxed or erroneous, and that therefore the court erred in granting the motion. It contends in this connection that, when a defendant in a suit of trespass to try title is successful and obtains judgment for costs, the judgment certainly includes reasonable fees advanced by it in paying for the services performed by surveyors appointed by the court in surveying the land in controversy, including their expenses and loss of time in attending court; and, if the opposing party would object to the items thereof taxed in the cost bill, it is incumbent upon him to show wherein they were improper.

Article 7747, Revised Statutes 1911 (old article 5264), provides for the appointment by the presiding judge of a surveyor to survey lands in controversy. While the statute makes no provision for compensating the surveyor for such services, there is no doubt that reasonable compensation should be allowed him therefor, to be taxed as cost against the party cast in the suit; and such has been the uniform practice. The better practice would be for the court to fix the amount that should be allowed the surveyor before the clerk enters the same in his fee book; but the fact that this is not done, but that the clerk enters the charge from memoranda in his office, or otherwise, does not the less make the fees for such service a proper item of costs to be taxed by the party against whom the costs are adjudged. The matter of taxing the costs in any case is imposed as a duty upon the clerk alone (article 3714); and when he, at any time before the issuance of execution, has taxed the costs that accrued in the case, the amount stands as a judgment against the party cast in the suit until such time as the court trying the case shall, upon motion of-the party complaining thereof, adjudge that the items so taxed are improper or that the amounts thereof are too large. In Patton v. Cox, 97 Tex. 253, 77 S. W. 1025, it is stated that the taxing of costs is not an adjudication by the clerk of the items specified, nor of the amount, but is simply the performance of a ministerial duty, which, if erroneous, may be corrected by the court upon a motion made for that purpose.

It may be well to state just here that where the successful party to a suit has paid any costs of suit either before the rendition of final judgment, or after such time and before the issuance of execution, he is entitled to be reimbursed therefor, provided such charges are properly costs and reasonable in amount; and, if the clerk has taxed such costs against the party cast in the suit, execution may be issued to collect the same, unless the court, on motion of the losing party, shall decree that such items are not proper or are not reasonable.

Looking now to the court’s fact findings, it will be seen that during the progress of the suit certain surveyors were appointed to survey the land in controversy, and that they performed that duty. The expense of this work was properly costs incurred in the suit which, by the judgment against De Laune, he was decreed to pay. The court also found that these costs, together with other expenses incident to making the surveys, were paid by the Beaumont Irrigating Company, and receipts therefor taken. These items of costs were not taxed as costs in the ease until more than four years after the rendition of the judgment, but were so taxed by the clerk before the issuance of execution. The court also found that the order appointing the surveyor Doucette directed the surveyor to make survey of the land involved in this suit as well as land involved in another case; and it appears that the charges made by the surveyor for all this service was $91, which was taxed as cost in this case and paid by the Beaumont Irrigating Company. Having reached the conclusion that, as a general rule, the expenses of making surveys and other expenses incidental thereto are costs of court chargeable to the party east in the suit, and further that in this case certain amounts charged therefor had been taxed as costs, and that, having been so taxed, they were included in the judgment for costs, we think that the court should have determined from the evidence, upon the hearing of the motion, whether the services for which the charges were made were performed in this case, and, if found to Lave been performed in tins case and another, the proportionate part of the costs to be charged for the service rendered in this case, and also should have determined whether such charges were reasonable, and, if found not to be reasonable, should have determined what a reasonable charge would be, and in this way correct the cost bill as taxed by the clerk.

Upon the question of limitation we hold that, inasmuch as the costs which had been taxed were included in the judgment that awarded execution for their collection, the statutes of limitation of two and four years do not apply. These statutes are applicable only in instances where the party entitled to the costs, instead of availing himself of the writ of execution as provided by the judgment for their collection, brings an independent suit against the party against whom they were adjudged to establish his demand; and all the cases cited by appellee on this issue were of this character.

As we have not the evidence before us from which we can determine the proportion of the services performed by the surveyors in other cases and charged as costs in this case, nor facts upon which we can arrive at the reasonableness of the charges for services rendered by the surveyors in this case, we are unable to render here such judgment as should have been rendered in the court below, and therefore the judgment must be reversed, and the cause remanded; and it has been so ordered.

Reversed and remanded.
      <g=^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes