author: MOURSUND, J.

text:
    LASATER et al. v. LOPEZ, County Treasurer, et al.
    (No. 6002.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 27, 1918.
    On Motion for Rehearing, May 8, 1918.)
    1. Counties &wkey;>149 — Inbebtedness — Restrictions and Limitations.
    Const, art. 11, § 7, providing no debt for any purpose shall be incurred by a county unless provision is made at the time of creating the same for levying and collecting a sufficient tax to pay the interest thereon and provide at least 2 per cent, as a sinking fund, is a restriction and also a limitation on county debts, for, if unauthorized to levy a tax which could be used to pay^the debt desired to be incurred, no power to incur it would exist.

      2. Counties <&wkey;149 — “Debt” — Restrictions and Limitations.
    A sum contracted to be paid a contractor for work on roads, to be paid for in interest-bearing warrants, is a “debt” within Const, art. 11, § 7, restricting and limiting county debts.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Debt.]
    3. Counties &wkey;>164 — Indebtedness — War-bants.
    The commissioners’ court of a county can, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2241, subd. 8, empowering such court to settle and direct payment of accounts, issue interest-bearing warrants maturing annually in future years, limited only by Const, art. 11, § 7, in spite of articles 605-610, relating to bonds.
    4. Counties &wkey;>164 — “Establish” Roads — Powebs oe Commissioners’ Court.
    In view of other general statutes, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2241, providing that the commissioners’ court can “establish” roads, empowers the commissioners’ court of county which has not adopted article 6966 to build a road and create an indebtedness to be paid by interest-bearing warrants in future years, although a bond issue under articles 605-610 for such purpose has been voted down in an election; the latter act not taking away the power of the court in such respect.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Establish.]
    5. Highways <&wkey;113(2) — Building Roads— Conteacts.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6966, relating to road contracts, has no application to counties which have not adopted it by appointing a road superintendent.
    6. Counties &wkey;>166 — Wabeants—“Bonds.”
    Instruments reciting that they are warrants issued to contractor for labor and material, and constituting orders upon the county treasurer to pay such contractor, and intended to be warrants, are simply warrants, and not “bonds,” within statutes regulating issuance of bonds, although they are camouflaged by insertion of numerous provisions for the benefit of the holder, and they cannot be made negotiable by the commissioners’ court.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bond.]
    7. Trial t&wkey;232(2) — Submission oe Case.
    Where the court submitted a case on special issues, it did not err in refusing to give a charge which would make the verdict one partly general and partly on special issues.
    8. Trial <&wkey;349(l) — Special Issues — Saving Objections.
    Where facts are undisputed, no special issues' relative thereto should be submitted, but motion should be made, asking the court to pronounce judgment required by law upon such undisputed facts.
    9. Highways &wkey;>113(4) — Debts—Powers op Commissioners’ Court.
    Although contract between commissioners’ court and road contractor made estimates of a certain engineer binding, such court was not precluded from setting aside the estimate as grossly erroneous and unfair to the contractor.
    On Motion for Rehearing.
    10. Highways i&wkey;113(2) — Improvement oe Roads — Contracts.
    Statutes authorizing the use of road hands cannot be held to affect or limit the powers given by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2241, to the commissioners’ court to improve roads by contract.
    11. Counties &wkey;>149 — Roads — Contracts— Indebtedness.
    That the Legislature has provided means for procuring a road fund does not impliedly prohibit the commissioners’ court from going into debt to build roads under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2241.
    12. Counties <&wkey;23 — Improvements—Necessity-Commissioners’ Court — Powers—Review by Courts.
    Courts cannot go into the question of the necessity for improvements made by the commissioners’ court, under Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 2241.
    13. Counties <&wkey;166 — Bonds—Warrants.
    That warrants for county improvements recited that the work had been done did not add anything to them, or estop the county from the defense that it had not been done, or turn the warrants into bonds within statutes regulating their issuance.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Suit by Ed. C. Lasater and other taxpayers of Duval County against Alonzo Lopez, county treasurer, and others, to have a road contract declared void and warrants canceled and their payment enjoined. Austin Bros., a corporation, intervened. Judgment for defendants, and intervener and plaintiffs appeal.
    Affirmed.
    John C. North, of Corpus Christi, Geo. D. Anderson, of Beaumont, and Terrell & Terrell, of San Antonio, for appellants. L. Broe-ter, of Alice, W. M. Harris, of Dallas, and Hicks, Phelps, Dickson & Bobbitt, of San Antonio, for appellees.
   MOURSUND, J.

This suit was instituted' on December 18, 1916, by Ed. C. Lasater and seven other taxpayers of Duval county against the county treasurer, Alonzo Lopez, A. W. Tobin, the county judge, G. A. Parr,, the county commissioners then in office, and ■Marshall White. By amendment, the successors of said county commissioners were-made parties. The object of the suit was. to have declared void a certain road contract of Duval county with Marshall White, and to procure the cancellation of all warrants issued by the county in payment for work done under said contract, and in the alternative that said warrants be canceled to the-extent of their alleged-illegality, and also-for an injunction against the county treasurer to prevent him from paying said- warrants or any interest upon them. Austin, Bros., a corporation, as the holder of $5,-230 worth of such bonds, intervened, and the defendants duly answered. The petition is lengthy, and contained allegations of " fraud, as well as attacks upon the legality of the contract and proceedings of the court. The jury found in favor of defendants and intervener upon all issues submitted to them, and judgment was rendered, declaring the ■ warrants valid, and that plaintiffs take nothing by their suit. The plaintiffs in their motion for new trial confined themselves to» certain specifications of error, and it will not be necessary, for the purpose of disposing of the same, to give a full statement of the pleadings. A short statement of the facts deemed material to the disposition of the assignments of error has been filed. The pleadings justified proof of such facts, and raised the issues presented in appellants’ assignments of error. Should it become necessary to consider the pleadings further, it will be done in discussing the assignments.

The undisputed facts material upon this appeal, quoting from, the statement of facts, are as follows:

“On September IS, 1915, the commissioners’ court of Duval county, without advertising for, or receiving, bids, entered into a contract with Marshall White to construct and repair certain roads and bridges in Duval county, Tex., and agreed to pay him therefor $60,000 in warrants of said county. At the time of the making, of the contract and at no time since its execution has there been enough money in the treasury of said county to pay the costs of the construction of said roads, or any considerable part thereof, nor was it contemplated by the parties to the contract that any part of the contract price should be paid in cash when the roads were completed. The warrants were for $500 each, payable in yearly installments extending over a period of 16% years, and attached to the warrants were interest coupons representing the semiannual interest at 6 per cent. No election was held to determine whether or not the indebtedness should be created either in the form of warrants or bonds, or to determine which roads should be constructed or which bridges built.
“The contract provided that the warrants should be issued upon the approval of estimates of the engineer as the work progressed; the article X thereof provided: ‘It is further agreed that the contractor shall have the right to sell, assign and transfer to any person, firm or corporation any and all of the warrants herein provided for upon their delivery to the contractor, and also sell, assign and transfer all claims, rights, demands and liens against the county of Duval, arising out of and accruing by virtue of this contract and all of such rights shall be exercised by the owners of said warrants. The delivery of said warrants or any of them to the contractor, his assigns, or transfers, shall in their hands, or the holder of any of said warrants for value be conclusive evidence of the performance by the contractor of the proportionate part of his entire obligation under this contract, as represented by the amount of warrants so delivered, and the said delivery of said warrants shall be a waiver by the county and county officials of all defense of whatsoever nature which said county, or officials, or other persons may interpose to the payment of any of said warrants, or the county’s right to levy a sufficient tax and make sufficient appropriation for the payment of the same, and said county declares and agrees that when said warrants are issued and delivered to the contractor, the same shall be in every way valid and binding obligations on the county, and special revenue created and pledged for their payment.’ ”
“The contract further provided that the debt should always be regarded as a general obligation upon the county, and a first lien upon the road and bridge fund, and the county agreed not to levy or appropriate any part of said tax for any other purpose until a sufficient amount thereof should have been first levied and appropriated in each year for the payment of said warrants and interest, and also •agreed that the warrants might be paid out of the general fund not otherwise appropriated. The warrants were payable at the option of the holder at the Hanover National Bank in New York, and provided: ‘That all or any part of said warrants should be receivable for all dues and taxes as provided by law; by the terms of said contract it was further provided that in the event of litigation the county of Duval agreed to hold the owners of said warrants harmless as well as the contractor, and agreed to pay a reasonable attorney’s fee to the respective holders of such warrants, and to pay all costs of suit.’
“The commissioners’ court, without any election to authorize it, levied for the years 1915 to 1932, inclusive, and for each succeeding year during which any of the principal or interest warrants might be outstanding and unpaid, a direct, continuing annual tax. At the time the contract was entered into J. B. Stewart was appointed county engineer of Duval county to take charge of said work and make estimates on behalf of said county. Marshall White began work under said contract, and had performed a large part thereon when on January 1, 1916, by mutual agreement, the amount of work to be done thereunder was reduced from $60,000 to $25,000, and a supplemental contract was entered into to that effect by the commissioners’ court and Marshall White, dated January 1, 1916, which contract provided for. a reduction of some of the prices fixed in the original contract and that all warrants pro--vided for in the original contract, except Nos. 1 to 50, should be surrendered, canceled, and destroyed, and it was agreed that Fred M. Percival should be the supervising engineer in charge of said work; that his estimates should govern; that the estimates previously allowed were subject to correction and revision by said Percival, and that the contractor should abide by his measurements, and that the price provided for in said contract should be reduced and should apply to all work previously done, as well as to the work to bo done thereafter, and that Percival’s estimate of all work previously done should govern as well as to all work thereafter.
“On or about February 15, 1916, Fred M.' Percival presented to the commissioners’ court an estimate for all work done under the original' contract and the supplemental contract up to that date, of $16,360.89, and Marshall White disputed said estimate, and contended that the amount of work done up to that time under the. prices fixed by the supplemental contract amounted to $25,000, and a hearing of the contested matter came before a new commissioners’ court, which had been appointed by the district judge, in the place of the four commissioners who had originally made the contract, they having, been removed from office by reason of certain, charges filed against them, and the new commissioners’ court heard evidence on said issue, and called in J. B. Stewart, who was still act-' ing as county engineer, to give testimony in regard to the amount of work done, and upon a full hearing of the matter Fred M. Percivalj increased his estimate to $18,931.83, stating, that he did so in a spirit of compromise and to avoid litigation, but not conceding error, but White refused to accept same as a cprrect estimate, and still contended that he had done $25,000 of work, and in the heading' it developed that J. B. Stewart had been on the work at all times since it had been begun by Marshall White, and that Percival had only seen tho work after 65 per cent, of it had been done, and White contended that Percival could not know the quantities which had been handled by him for that reason. After a full hearing on February 15th, the commissioners’ court approved the estimate of J. B. Stewart as the correct estimate of the amount of work done,' Stewart’s figures being $25,000, and the commissioners, ordered the balance of the warrants to the ex-' tent of $25,000 to be delivered to, Marshal^ White, and they were delivered, hut after their delivery to him a part of them were transferred to the intervener herein, Austin Bros., a corporation organized under the laws of the state of Texas, having its principal office and domicile in Dallas, Dallas county, Tex. No bridges were built or repaired under said contract.
“The taxable values of Duval county and the unappropriated amount of tax which could be levied for road and bridge purposes under the law were amply sufficient to permit the commissioners’ court to issue $60,000 of warrants for road and bridge purposes at the time the original and supplemental contracts hereinbe-fore mentioned were made, provided said warrants could be legally issued.”

The contract and supplemental contract between White and the commissioners’ court were made a part of the statement of facts, and one of the warrants, which had been paid, was attached to and made part of the statement of facts. The contracts bound White to provide material and do worlr in constructing and repairing roads and bridges in Duval county to be designated by the commissioners’ court. The specifications of the nature of the work to be done show that the object of the contract was to improve the roads by grading the same, con.•struction of culverts and repair and con.struction of bridges. In fact, no bridges were built or repaired under the contract. Was the commissioners’ court authorized to incur indebtedness for the purpose and to the extent provided in the contract as finally made with White, and to issue, as evidence ■of the indebtedness, the instruments therein stipulated for?

In section 7, art. 11, of the Constitution it is provided that no debt for any purpose shall be incurred by a county unless provision is made at the time of creating the same for levying and collecting a sufficient tax to pay the interest thereon and provide at least 2 per cent, as a sinking fund. This is a restriction and also a limitation, for if unauthorized to levy a tax which could be used to pay the debt desired to be incurred no power to incur it would exist. The meaning of the term, “debt,” as thus used has been explained in the case of McNeal v. Waco, 89 Tex. 83, 33 S. W. 322, and other cases. The sum contracted to be paid White was a debt within the meaning of such constitutional provision, and the ■court complied with such provision at the time it created the debt. The framers of the Constitution did not see proper to prescribe any other limit to the indebtedness of ■counties or to prescribe any method for evidencing the indebtedness. The Constitution (section 18, art. 5) created a tribunal to be known as the “county commissioners’ court” which should “exercise such powers and .jurisdiction over all county business” as is • conferred by the Constitution and laws of the state. The Constitution left it to the Legislature to define the powers of such ■court with respect to the ordinary affairs of the county, including the creation of debts. The Legislature in article 2241, subdivision 8 (Vernon’s Sayles’ R. S.) empowered such court “to audit and settle all accounts against the county and direct their payment.” This provision had its inception in the act of March 16, 1848 (Acts 2d Leg. c. 98), creating “the county court,” and the language contained in said subdivision 8 was originally followed by the words “in such manner and at such times as may meet the public interest.” In the act of July 22, 1876 (Acts 15th Leg. c. 55), organizing commissioners’ courts, the provision was first written as it is now expressed in said subdivision 8. In the case of San Patricio County v. McClane, 58 Tex. 243, construing the act of 1848, it was held that the “county court,” being authorized to provide courthouses and jails, and to audit and settle all county accounts, and direct their payment in such manner and at such times as may meet the public interest, had the power to issue interest-bearing warrants to a contractor for building a courthouse and jail. In the case of Davis v. Burney, 58 Tex. 364, the same court held that interest-bearing warrants for refunding prior indebtedness issued under order' of the commissioners’ court in 1878 were valid. The court discussed at length the power of commissioners’ courts,' calling attention to the rule that municipal corporations can only exercise such powers as are expressly given by legislative act and such implied powers as are necessary to carry into effect those expressly granted, and stating that by explicit legislative enactments the power is conferred on commissioners’ courts to audit and allow claims against the county, and to provide the means by way of taxation to pay same. The fact that the provision' considered in the case of San Patricio Oounty v. McOlane expressly stated that the court could direct the payment “in such manner and at such times as may meet the public interest” does not affect the authoritative value of the opinion in this case, for the provision considered in the Davis v. Burney Case, and now constituting said subdivision 8 of article 2241, must be given the same construction, for the power to audit and settle necessarily implies the power to fix the time for payment. The cases discussed have been followed by many others, and it is well established that the commissioners’ court has the power to incur indebtedness, not only to the extent of the revenues of the county during the terms of office of such commissioners, but also to the extent of contracting away revenues which will be collected during many years, and to evidence the indebtedness by interest-bearing warrants. Mitchell County v. Bank, 91 Tex. 361, 43 S. W. 880; Ault v. Hill County, 102 Tex. 336, 116 S. W. 359; Stratton v. Commissioners’ Court of Kinney County, 137 S. W. 1170) Allen v. Abernethy, 151 S. W. 348; Rogers Bank v. Marion County, 181 S. W. 884; Broussard v. Wilson, 183 S. W. 814; Brazeale v. Strength, 196 S. W. 247.

It is also established by the Stratton y. Commissioners’ Court Case that such power, in so far as it relates to building courthouses, is not affected by articles 605 and 610 ‘ (Vernon’s Sayles’ Statutes), relating to the issuance of bonds for certain purposes, including the erection of a courthouse and improving and maintaining public roads. This holding is based on the proposition that the acts relating to issuance of bonds are not so worded as to expressly or by implication limit the court to the use of bonds in making the improvements mentioned in the bond laws. The acts were passed to supply a power held ,tn the case of Robertson v. Breedlove, 61 Tex. 318, not to exist by implication, and not for the purpose of affecting any powers which had been granted to the court. The Legislature did not authorize the issuance of bonds for the improvement and maintenance of public roads until April 28, 1903 (Acts 28th Leg. [1st Called Sess.] c. 4), and when it did so, no attempt was made to abrogate powers then existing. It follows that if the commissioners’ court was authorized by other laws to improve the public roads by contract, it had the power to issue warrants to evidence the indebtedness, and such power was not affected by the passage of the act authorizing the same purpose to be accomplished by means of a bond issue. Had there been statutes forbidding the commissioners’ court to issue warrants except to the extent of the current revenues for the year, the court would perhaps have held in the Breedlove Case that the power to issue bonds was necessarily implied from the provision directing the erection of courthouses. In appellants’ brief the doctrine that the commissioners’ court can accomplish by means of warrants what the voters have refused to permit them to accomplish by means of a bond issue is assailed in a very forceful manner. The only answer we can make is that it is a matter which should address itself to the Legislature. It may be that debts which will exhaust the revenues for years to come should only be created by bond issues, but the Legislature has not seen fit to say so, and it has had many opportunities to do so, since it has been authoritatively established that the laws did not so provide.

As it is within the power of commissioners’ courts to issue interest-bearing warrants maturing annually for many years to evidence indebtedness legally created, it remains only to be determined whether the court was authorized by law to incur the indebtedness to White, and whether the instruments delivered to him constitute warrants. The Constitution in article 11, § 2, provides that “the laying out, construction and repairing of county roads, shall be provided for by general laws,” and in article 16, § 24, directs that the Legislature shall make provision for working public roads, for the building of bridges, and for utilizing fines, forfeitures, and convict labor to all these purposes. In article 8, § 9, a tax of not exceeding 15 cents for roads and bridges is authorized, and by amendment to said section it was provided that the Legislature may authorize an additional tax not exceeding 15 cents for the further maintenance of the public roads, and that the Legislature may pass local laws for the maintenance of the public roads and highways. It is interesting to note, in this connection, that the tax of 15 cents authorized by the Constitution for roads and bridges is not a current tax for maintenance purposes, and may therefore be used to be applied to the principal and interest of a debt. Dodenheim v. Lightfoot, 103 Tex. 639, 132 S. W. 468.

The Legislature passed the necessary laws to give effect to the tax provisions, and passed many laws relating to the public roads. In article 2241, which constitutes the general grant of power to the commissioners’ court, it is provided that said courts shall have power, and it is their duty, “to lay out and establish, change and discontinue public roads”; “to build bridges and keep the same in repair”; and “to exercise general control and superintendence over all roads, highways, ferries and bridges in their counties.” The controversy in the briefs relates chiefly to the proper construction to be given to the words, “lay out and establish,” appellants contending that no power is therein given to “build” roads, while appellees contend it would be wrong to restrict the word, “establish,” to a meaning which would only authorize the designation of a road on a map and the making of an order stating that it was established. We’ think it is clear that the word, “establish,” should be construed to mean “make, create or found permanently.” Macdonell v. Railway, 60 Tex. 590. In the cited case the court had under consideration the charter power of a city to establish ferries, and stated that the power to establish ferries carries with it the power to do all such acts as may be necessary to construct permanent ferries. In this connection it is interesting to note that the language, “lay out and establish, change and discontinue public roads and highways,” now found in. article 2241, was first used in the act of May 13, 1846 (Acts 1st Leg. p. 333) and that in the same act the county court was empowered to “establish ferries and the rates of tolls to be charged at such ferries.” This language was afterwards changed to read, “To establish public ferries wherever the public-interest may require” (Rev. Civ. St. 1911, art. 2241), and this court in the case of Burrows v. Gonzales County, 5 Tex. Civ. App. 232, 23 S. W. 829, held that such language gave the.power “to create and operate a public ferry” while the Supreme Court, in the case of Tugwell & Madison v. Perry Co., 74 Tex. 480, 9 S. W. 120, 13 S. W. 654, held that such language gave a grant as full as the Legislature could make it. It is true that the word, “establish,” is sometimes used to express the effect of an order of the court declaring certain described right of way to be a public road, but as roads are intended to have permanency and it is one of the functions of government to establish and maintain the same, the grant by the state to the commissioners’ courts to establish the same should be held to be as full as the Legislature could make it, and to carry the power, not only to create roads by passing the necessary orders and removing obstructions and doing other work so as to make the road fit for use, but also to keep up and improve the roads. In other words, to do all such acts as may be necessary to construct permanent roads. It is also perhaps worthy of mention that if the statutes are to be liberally construed, as provided in section 3 of the Pinal Title, Statutes of 1911, with a view to effect their objects, the power given the commissioners’ court in article 2241 should be construed to be a substantial one, such as would authorize that body to provide and maintain good roads. Our statutes relating specially to roads tend strongly to show that the duty imposed and power granted by article 2241 should be construed as we have herein construed it, and in themselves constitute a grant of power to the commissioners’ court to improve the roads.

Article 6872 provides for clearing roads, and that all causeways shall be at least 16 feet wide. Article 6884 authorizes the court to establish and classify roads and order the opening out of the same. Article 6901 provides that the county commissioners shall supervise roads and make reports stating what bridges, culverts, or other improvements are necessary to place the roads in good condition and the probable cost thereof, which reports are to be spread on the minutes of the court to be considered in improving public roads and determining the amount of taxes levied therefor. Article 6903 provides that such reports, together with all contracts made by said court for any work on any road, shall be submitted to the grand jury. Article 6919, makes it the duty of certain male persons “to work on, repair and clean out the public roads,” and article 6923 provides that such persons may purchase exemption at the rate of $1 per day. Article 6928 authorizes overseers to call out hands at such time as may be deemed best by commissioners’ court “for the better improvement of the public roads.” Articles 6934 and 6935 provide for taking timber and earth for building bridges and causeways, and for cutting ditches to drain water from roads. Article 6936 authorizes overseers to exchange labor of hands for use of wagons, plows, or scrapers and necessary teams. Article 6901 requires overseers to apply money coming into their hands to the improvement of their roads in an impartial manner by repairing or building bridges, hiring hands or teams, or in such other manner as they may deem best. Article 6944 provides that all moneys appropriated by law, or by order of the commissioners’ court, for working public roads or building bridges, shall be expended under the order of the court, except when otherwise provided by law. Article 6949, referred to by appellants in their brief, prescribes the duty of the court in expending the road and bridge fund, and stipulates that in expending money “in building permanent roads” the same shall be used only on certain roads. Article 6950 authorizes the court to make rules and orders for working and repairing roads and to utilize money to be expended thereon, not in conflict with law, and to purchase or hire all necessary road machinery, tools, or teams and such labor as may be needed in addition to the labor required of citizens “to build or repair the roads.” The last-mentioned two articles are part of an act authorizing the appointment of road commissioners and further defining the powers and duties of the commissioners’ court. Acts 1889, p. 134.

These provisions were in force prior to the passage of the law authorizing the issuance of bonds for road improvements, and at the time the contract was made with White. The commissioners’ court, being invested with the duty and power to create and maintain adequate roads, could legally contract for the work and material embraced in the contract with White, and having, in the discretion vested in it by law, determined that it was necessary to make improvements to such an extent as to require it to fasten an indebtedness upon the county, it could legally do so and issue warrants to evidence the same; there being no statute which expressly or by implication limited such court to the making of improvements which could be paid for by current revenues.

Appellants quote article 6966. Said article is part of an act which only applies in counties which adopt it by appointing a road superintendent, and has no application in determining the power vested in the commissioners’ court of Duval county, and the article is only referred to by appellants for the purpose of deducing therefrom a legislative opinion that the power to construct and improve roads by contract had not theretofore been given. It has no value for such purpose in view of other articles which clearly give such power, and, even if there was doubt, would be of little value, for the Legislature frequently passes laws that are simply declaratory of the law as it already exists under other statutes or the common law. Von Rosenberg v. Lovett, 173 S. W. 508.

The next question is whether the instruments issued to White are warrants or bonds. The instrument in evidence is designated on its face as “Road and Bridge Warrant Certificate,” and in the body of the instrument it is continually referred to as a “warrant.” It recites the county’s indebtedness to Marshall White, contractor, in the sum of $500, and orders the treasurer of the county to pay such sum to 'Marshall White, his assigns or bearer, and is signed “County of Duval, Texas, by G. A. Parr, County Judge,” and attested by the clerk. There is no doubt that it was sought to make the instrument appear attractive to buyers of securities, by giving it an imposing appearance, and inserting numerous provisions for the benefit of the holder, as well as representations that the labor had been performed and material furnished for which the instrument had been issued. However, it is after all only a warrant, and no amount of camouflaging can make it anything else. It is subject to defenses by the county, as was pointed out in the case of Allen v. Abernathy, supra, and any attempt on the part of the commissioners’ court to make it negotiable is futile and void. In the ease of City of Tyler v. Jester & Co., 97 Tex. 344, 78 S. W. 1058, the court was called on to determine whether the city had issued notes or bonds. It had the power to issue either. The court mentioned that the obligations recited that they were notes, and said:

“The obligations in suit have some of the characteristics of bonds, but they are more like promissory notes. It is evident that the parties to this transaction intended to issue notes, and, having power to do so, their intention must be given effect. The instruments are not bonds within the meaning of the statutes regulating the issuing of bonds.”

The instruments involved in this suit recite that they are warrants issued to a contractor for labor and material; they constitute orders upon the treasurer to pay such contractor, each being due at a different date; they are not bonds within the meaning of our statutes relating to the issuance of bonds. There is no ground for holding them to be bonds. Graves v. O’Neil, 189 S. W. 778.

It is further contended that the court erred in refusing to instruct the jury that the commissioners’ court was required to settle with AVhite on the estimate of Percival, and, having failed to do so, the payment of White to the extent of the excess over Percival’s estimate was unauthorized, and to find the warrants to the amount of the difference between Percival’s estimate and $25,-000 were illegally issued to White. The court submitted the case on special issues, and did not err in refusing to give a charge which would have made the verdict one partly general and partly on special issues. Dallas Hotel Co. v. Fox, 196 S. W. 652; Calvin v. Neel, 191 S. W. 791.

If the facts are undisputed, no special issues relative thereto should he submitted, but by proper motion the court should be asked to pronounce the judgment required by law upon such undisputed facts. We are of the opinion, however, that if the question could be held to have been properly raised, we would be compelled to overrule the contention that plaintiffs are entitled to have the bonds enjoined to the extent of the difference between $25,000 and Percival’s estimate. Appellants’ theory is that the commissioners’ court could legally contract to make Percival’s estimate binding upon the county, but that it could not legally agree to relinquish any rights it might have by reason of the estimate having been made, and that, regardless of the fact that Stewart’s estimate was correct, and its correctness established by verdict of the jury in this case, the court should have set aside the judgment of the commissioners’ court to the effect that the county was indebted to White in the sum of $25,000, and have declared the warrants void to the extent of the difference between Percival’s estimate and the sum of $25,000. In other words, that the county by virtue of the estimate became entitled to exact from White work to the extent of the difference between Percival’s estimate of $16,360.89 and $25,000, even though he had already furnished work to the extent of $25,000, and that the action of the commissioners’ court in entering a judgment which released White from the furnishing of the $8,639.11 worth of work was void. The matter of the estimate was inseparably connected with White’s claim. The agreement for such estimate was part of the contract, and the law reads into the contract the proposition that no estimate made by an arbitrator can stand if it be shown that such gross mistake was made as to necessarily imply bad faith, or a failure to exercise an honest judgment. The court had jurisdiction to pass on White’s claim and in doing so to pass upon his attack upon the estimate. It heard evidence, and became convinced that White had a legal claim against the county for $25,000. It was not required to subject the county to the expense qf a suit it could not win. In passing upon all claims it has a discretion to determine the correctness thereof. In this case the jury found there was no fraud, and that in fact there was a mistake in Percival’s estimate, which undoubtedly would be characterized as a gross mistake. If the district court under the supervisory powers granted it with respect to proceedings of the commissioners’ court was authorized to investigate its judgment on this matter, it is clear that the facts fail to show such abuse of discretion as would justify the district court in setting aside the judgment.

The judgment is affirmed.

On Motion for Rehearing.

The first part of our opinion was devoted to the power of the commissioners’ court with respect to fixing the time of payment of debt and issuing interest-bearing warrants to evidence the same, and not to the power of the court to incur indebtedness. Appellants construe our opinion as virtually holding that the power “to audit and settle accounts and direct their payment” gave unlimited power to incur indebtedness. We trust the opinion is not subject to that construction, for we intended to clearly separate the discussion of the two questions, one relating to the power of the court, in cases where it was legally authorized to incur indebtedness, to evidence the indebtedness by interest-bearing warrants maturing throughout a long series of years, and the other, the power of the court to incur indebtedness for road improvements.

The cases of McClane v. San Patricio County and Davis v. Burney were relied upon as pioneer cases on the subject of warrants, and, together with the other cases cited in the first part of our opinion, were believed sufficient to establish the proposition that, if the court had the power to incur indebtedness for road improvements to the extent of the contract with White, it had the power to issue the warrants' involved in this suit: We do not regard appellants’ discussion of the McClane v. San Patricio County Case as accurately stating the issues or effect of the decision, but regard it unnecessary to further discuss the first question above stated, except in so far as it is necessarily involved in the discussion of the courthouse cases, which we believe have a material bearing on both questions.

Appellants state that they think the court had power to issue warrants to build courthouses and jails before the passage of the act of 1881 (Acts 17th Leg. c. 9), authorizing issuance of bonds, but that they had no such power thereafter, ánd state that- no court ever so held prior to the decision in the Stratton Case. In the case of -Cresswell v. Roberts County, 27 S. W. 737, in which a writ of error was denied, the court held that the bond legislation was intended to confer on the court an additional power, and not to take away, by substitution or otherwise, that which already existed. The case did not involve the validity of warrants, but it is significant that the court construed the original bond statutes just as they have been construed in the Stratton Case. Before passing to the Stratton Case, appellants discuss the case of Allen v. Abernethy, 151 S. W. 348, decided by this court, and indulge in the following vigorous criticism:

“That any court should ever hold that, after an election has been held to determine whether or not bonds shall be issued to build a courthouse, and their issuance defeated, the commissioners’ court could, within one month thereafter, issue warrants for the very same purpose, and in a greater amount, is to us almost unbelievable, and that such is the law is to us unthinkable.”

The theory thus advanced by appellants is without merit. It amounts to a contention that, even though the bond laws do not take any power from the commissioners’ court to build a courthouse and issue warrants in payment, still if the court submits to the voters a bond proposition, and the same is voted down, then the court has no power to build a courthouse and issue warrants to pay for same. The vote of the people did not change the rules of law applicable to the power of the court, and if the cases of Stratton v. Commissioners’ Court and Cowan v. Dupree, 139 S. W. 887, are correctly decided, and the Supreme Court refused writs of error in both, then the decision in the case of Allen v. Abernethy is undoubtedly correct.

Appellants take issue with us in regard to what we said concerning the purpose for which the bond laws were passed, and contend that they were passed “for the express purpose of curbing the power which has arisen under the decisions of courts.” As the courts had held that the commissioners’ court had no power to issue bonds unless expressly authorized by statutes, it is evident that when the statutes authorizing the issuance of bonds were passed, the purpose was not to curb any power which had arisen under decisions of the courts. When the subsequent laws were passed which regulated and restricted the issuance of bonds, the purpose might be said to have been to curb the commissioners’ court in the exercise of the power given by the previous statutes, but if there was any intention to curb any powers other than the one to issue bonds, the Legislature wholly failed to express such intention. In fact, appellants’ contention, as stated further on, is that the original statutes authorizing the issuance of bonds by implication restrict the commissioners’ court to the use of bonds to derive the necessary funds to build courthouses, when there is not sufficient cash on hand, and thus impliedly prohibit the commissioners’ court from making a contract unless a bond issue has been voted. They say that:

“Where the statute directs the performance of certain things in a particular manner it forbids by implication every other manner of performance.”

That principle has no application to our bond statutes. They are obviously intended to supply a power held not to exist, and not to forbid the court from exercising powers then existing. The Legislature did not provide that the question whether a contract for a courthouste should be entered into should be submitted to the voters, as well as whether bonds should issue, as it did in article 2253 with reference to certain bridges.

In their attack on the Stratton Oase appellants undertake to show that the case of Mitchell County v. Bank, 91 Tex. 361, 43 S. W. 880, cited in the Stratton Case, instead of being authority supporting the decision, is really authority adverse thereto. Mr. Justice Brown, who wrote the opinion of the court in tlie Mitchell v. Bank Case, was a member of the court when it refused the application for writs of error m the Stratton and Dupree Oases, and was in a better position than any one else to determine whether the decisions in said cases were in accord with the decisions of the Supreme Court. 'The particular portion of the opinion in the Mitchell v. Bank Case relied on by appellants is the following sentence:

“It is quite too plain for argument that if the laws of 1881 and 1884, or similar laws, had never been passed, Mitchell county would have had no authority under the Constitution to contract the debts represented by the bonds, nor to levy a tax for the payment of the interest and sinking fund on such debt; the power to do so could be derived from the Legislature only.”

When the sentence is read in connection with its context, and it is borne in mind that the court was discussing bonds, payable to bearer, issued for the purpose of raising money, it is evident that by the words, “contract the debts represented by the bonds,” the court meant that in the absence of the Bond statutes the county could not borrow money and issue negotiable instruments to evidence the debt thus incurred, and that it had no reference to a debt incurred by making a contract with some one to erect a courthouse.

We are convinced that the courthouse cases were correctly decided. They establish the following propositions: (1) That the power to provide courthouses includes the power to go in debt for the purpose, not exceeding the constitutional limit. (2) That interest-bearing warrants, issued pursuant to the contract with the contractor, evidencing the debt thus incurred, even though payable during a long series of years, are valid. (3) That the laws authorizing the issuance of bonds are not a limitation upon the power of the commissioners’ court to incur an indebtedness for the purpose of building a courthouse, but confer power to raise funds by borrowing money on the credit of the county and issuing negotiable paper to evidence the debt thus created.

We pass now to the question of the power of the commissioners’ court with reference to roads. Appellants say in their motion:

“The commissioners’ courts were authorized to improve public roads by contract, but the amount which they could spend was limited and properly so. They had the right to use any revenue on hand for the purpose, but even then they were required to let the contract to the lowest responsible bidder, and require a bond. Not so in the case of warrants. If they used cash, the law required that the contract should be let to the lowest bidder and a bond required, while in this case the court holds that, if they were building roads on a credit, they could dispense with such senseless formality.”

This statement is not supported by any reference to the statute, and the brief of appellants contains no reference to any statute which might be construed as so providing except article 6966, R. S. 1911, which is part of a law applying only to counties which adopt it by appointing road superintendents in accordance with its provisions. That law has never been adopted in Du-val county, and has no application to this ease. • If there is a similar statute which applies to the state generally, it has not been pointed out, and we have not found it. The references thereto do not serve to aid in deciding the question at issue, but, on the contrary, tend to confuse.

The statutes which do apply to this case have been referred to in our original opinion. As appellants have failed to point out others, we may assume that we have considered those which are material. We have pointed out the constitutional provision which prohibits the incurring of debts beyond the boundaries marked out by the taxing power, and appellants admit that such provision has been complied with. There is no statute which states that commissioners’ courts cannot go in debt to build roads, or which makes further restrictions than the one made in the Constitution, and there is no statute which expressly authorizes the court to incur debts for such purpose. There are only the statutes which make it the duty of the court to establish roads and which authorize the court to improve roads by the use of road hands or by contract. The statutes authorizing the use of road hands cannot be held to affect or limit the powers given to improve roads by contract. There is, as stated, no statute expressly limiting contracts to funds on hand, or funds to be derived during the current year. There is no statute which by implication creates such a limit, unless it be statutes which provide a fund. Such statutes contain no statement from which such limit can be implied, and therefore, if deducible, it must be based on the mere creation of the road and bridge fund.

Can it be held that because the Legislature has provided means for procuring a road fund, it impliedly prohibited the commissioners’ court from going in debt, that is, contracting for improvements in excess of the amount of money to be derived for road purposes during the current year? If so, then it must be held broadly that the commissioners’ court has no power to contract debts, for the law authorizes the collection of funds to be applied in carrying out all the powers of the court, the exercise of which involves the expenditure of money. If it can be held that there is no power to incur debts, the decisions in the courthouse cases are wrong, and it should be held that courthouses must be built with cash on hand, and the taxes to be collected during the current year, or else by money derived from a bond issue. We are unable to see any sufficient ground for holding that a different rule applies with reference to incurring debts for roads than for courthouses. We do not believe the courts can go into the question of the necessity for making the improvements without invading the discretion Vested in the commissioners’ courts; and therefore no distinction between the courthouse eases and this case can be predicated upon a theory that there may be a greater necessity for the exercise of the power as to courthouses than as to roads.

In the argument it is contended, as a reason for holding the instruments issued by Duval county to be bonds, that the county, after having recited'that the work had been done, could not make the defense that it had not; and it would be immaterial to the holder of the instruments whether or not the work had been done if the warrants recited that it had. In other words, the theory is that the commissioners’ court made the warrants incontestable on the theory of estoppel, and therefore they became Just as good as bonds, and therefore should be held to be bonds. The case of Nolan County v. (State, 83 Tex. 183, 17 S. W. 823, is relied on. That was a case relating to recitals in bonds. We call attention to Mr. Dillon’s discussion of warrants in sections 856 and 857, in fifth edition of his work on Miunicipal Corporations. The order of the court for the issuance of warrants contains, expressly or impliedly, a finding that the work has been done for which the warrants are issued. If this judicial determination is insufficient to protect a purchaser of warrants, it is inconceivable that a recital that the work has been done, made in the warrant, would enlarge his rights.

We see no reason for changing our conclusion that the instruments issued are warrants.

The motion for rehearing is overruled.
      ^mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    BARTLESVILLE ZINC CO. et al. v. COMPANIA MINERA YGNACIO RODRIGUEZ RAMOS, S. A.
    (No. 811.)
    (Court of Civil Appeals of Texas. El Paso.
    April 11, 1918.
    Rehearing Denied May 9, 1918.)
    1. War <@=>14^-Military Seizure — Question eor Jury.
    In a suit for damages for conversion of ears of ore, where the defense was that the ore had been seized within the Republic of Mexico as a military necessity by Gen. Villa, being taken and sold by his fiscal agent, and there were circumstances showing- the agent’s private use as well as military use of the ore, the question was for the jury.
    2. Trover and Conversion <@=347 — Damages —Measure of.
    The measure of damages for ore converted is its value at the time and place of conversion.
    3. Trial <@=>208 — Instructions—Excluding Evidence from Consideration.
    An instruction submitting the true measure of damages for conversion of ore, but not excluding inadmissible evidence of value of the ore at times other than the date of conversion, is reversible error, where it cannot be determined whether such evidence influenced the verdict.
    4. Appeal and Error <@=>1050(2) — Harmless Error — Evidence—Admissibility.
    In a suit for damages for conversion of ore, where the inquiry was whether or not the ores were confiscated and sold for military purposes of the army of Gen. Villa, the introduction of evidence of his mistreating prisoners, killing women, children, and Chinamen, etc., was prejudicial error.
    5.' Trial <@=>208 — Instructions—Excluding Evidence from Consideration.
    The court did not err in charging the jury not to consider the decree of Gen. Carranza confiscating ore, the conversion of which was the subject of the suit, where at such time he and Gen. Villa were acting together, and when the ore was converted they • were contending with each other, and the defense claimed they were seized by Villa.
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Suit by the Compania Minera Ygnacio Rodriguez Ramos, S. A., against the Bartlesville Zinc Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed, and remanded.
    R. O. Walshe and U. 6. Goen, both of El Paso, Ed. F. Harris, of Galveston, and Julian B. Beaty, of New York City, for appellants. Davis, Goggin & Harrington, of El Paso, for appellee.
   HARPER, C. J.

The Compania Minera Yg-nacio Rodriguez Ramos, S. A., brought this suit against the Bartlesville Zinc Company, American Metals Company, Limited, the Com-pania Minera de Penóles, S. A., and Com-pania de Minerales de Metales, et al., for damages for the conversion of 48 cars of ore, alleging that same was taken from plaintiff in the Republic of Mexico by unknown parties, and shipped to El Paso, where it was unlawfully appropriated by defendants. The defense is that it was seized and confiscated by Francisco Villa as a military necessity— sold to parties in Mexico, from whom it was by defendant American Metals Company purchased in good faith.

The plaintiff in reply denied that the ore was taken or confiscated by any act of a sovereign state, so as to constitute it booty of a conquering army, or was taken to be used in the course of military operations, or under circumstances where danger was immediate and impending, or necessity urgent for the maintaining of the army, or the necessities of war. The cause was submitted to a jury on special issues, and upon the verdict judgment was rendered for plaintiff for $75,-902.14, from which this appeal.

The jury found that a civil war existed in Mexico during the time the ore sued for was taken, and that armies of soldiers led by Francisco Villa were opposed by the armies of Venistiano Carranza; that the cars of ore sued for were not taken by any force or government in possession and control of the-territory where plaintiff’s mine was, or by any agent of such force or government, acting by authority of such government or force. Nor was it taken- by Francisco Villa, or any ■of his agents or officers acting by his authority or directions; nor were the proceeds thereof intended for the benefit of the faction dominated by Villa.

The appellant contends that the uncontra-■dicted evidence shows that the ore was taken under confiscation by the officers and agents of the Villa government for the use of the army. The evidence is uncontradicted that the ores were purchased from Hipólito Villa; that he was the financial agent of Gen. Villa, but we find no positive statement that these ores were taken for the use of the army. There are circumstances tending to show that they were taken for his own private use, as well as circumstances indicating that they were taken by him as the representative of Gen. Villa for the army. For this reason, we conclude that this is properly a question for the jury to determine.

The first, second, and third assignments urge that the court erred in admitting testimony of first, the highest market value of the ore between the date of alleged conversion and the date of trial, and testimony of the aggregate value, and as to a price agreed upon in another contract for similar ores. The measure of damages for -conversion is the market value of the property at the time and place of conversion. San Antonio & A. Pass Ry. Co. v. Smith, 171 S. W. 282; Grimes v. Watkins, 59 Tex. 133. The court submitted the true measure of damages to the jury, but did not exclude by the charge testimony of the value of the ores at other times, between the time of taking and the date of trial. The evidence complained of being inadmissible, and not having been excluded, and we not being able to determine whether in fact the jury considered the improper evidence in arriving at the amount fixed as the value, these assignments must be sustained.

The fourth and fifth assignments complain that it was error to permit witnesses to testify to acts of Villa, such as mistreating prisoners, killing women and children, and Chinamen, etc., upon the ground that it had no bearing upon the issues involved, and tended to inflame the minds of the jury against a confiscation by the Villa officers and agents. This is also well taken.

The jury made the finding that a state of war existed in Mexico at the time the ore was taken, and that Francisco Villa was at the head of a contending faction, so it became a material inquiry whether or not the ores were confiscated and sold by his (Villa’s) officers or agents as such, for the reason that under the settled law of the United States a sale by such would convey title; so it became important that the minds of the jury be free from bias or prejudice, on account of any collateral matters in evidence, and we cannot say that such testimony did not have an improper effect upon their minds.

The court did not err in charging the jury not to consider the decree of Carranza confiscating this and other property, for the reason that it was promulgated at a time when he and Villa were acting together, and at the time this ore was charged to have been seized and confiscated they had divided and each had taken the leadership of a faction, contending against each other; so it had no probative force in determining whether the ore was confiscated in fact by Villa, or his officers.

For the reasons assigned, the cause is reversed and remanded for a new trial.
      other oases see same topic and KEY-NUMBER in-all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    WESTERN UNION TELEGRAPH CO. v. BROWN.
    (No. 1913.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1918.
    Rehearing Denied Feb. 28, 1918.)
    Courts @=395(1) — State Courts — Conflicting Decisions — Negligence in Delivery of Telegram — Recovery for Mental Anguish.
    In applying the laws of another state as to recovery for mental anguish in case of negligence in delivery of a telegraph message, sent from that state to Texas, and following the rule that the law of the state from which the message is sent must govern as to damages, a decision of the Supreme Court of Texas that Congress has not, as to interstate messages, superseded state laws authorizing recovery for mental anguish, directly conflicting with a decision of the Supreme Court of such other state, will be followed, and recovery for mental anguish allowed.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by B. H. Brown against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Chas. S. Todd, of Texarkana, and Albert T. Benedict, of New York City, for appellant. Mahaffey, Keeney & Dalby, of Texarkana, for appellee.
   HODGES, J.

On December 21, 1915, the following message was sent from Bessemer, Ala., to the appellee at Nash, Tex:

“Father died at 12:30 p. m. to-day of pneumonia. [Signed] A. C. Boyd.”

The testimony showed that A. C. Boyd was the brother of Mrs. B. H. Brown, and the purpose of the message was to notify her of the death of her father. This message reached Nash, Tex., early in the morning of the 22d of December, but was not delivered until some time the next day. The evidence further showed that the failure to deliver the message earlier was due to the negligence of the agents of the appellant, and that had they used reasonable diligence the message could have been delivered in time to enable Mrs. Brown to attend the funeral of her fattier. This suit was filed by her husband, B. H. Brown, for damages in the sum, of $1,000, based upon the mental anguish suffered by his wife as a result of the negligence charged.

The issues presented in this appeal are mainly questions concerning the law relating to mental anguish as an element of actual damages. It is contended that, this being an interstate message, the measure of damages must be governed by the laws of the United States and the rules of decision applied in the federal courts, and that under those laws and rules mental anguish- alone is not an element of actual damages. The facts are strikingly similar to those involved in the case of W. U. Tel. Co. v. Bailey, 184 S. W. 519, decided by this court at a former term, and which was approved by the Supreme Court of this state in 108 Tex. 427, 196 S. W. 516. The questions of law are also the same, and it is unnecessary to again discuss them. We feel constrained to adhere to our former ruling.

' The appellant, however, contends that under the laws of Alabama in force at the time this suit was filed mental anguish was not recoverable, and that under the rule which applies the lex loci contractus in measuring the damages the appellee was not entitled to recover for mental anguish. To support that contention it offered in evidence a decision by the Supreme Court of Alabama rendered in November, 1916, in W. U. Tel. Co. v. Hawkins (Ala.) 73 South. 973. The first paragraph of that opinion is as follows:

“The decisive question in this case is whether, under the interstate commerce law [Act Feb. 4, 1887, c. 104, 24 Stat. 379], as amended by the act of Congress of June 18, 1910 [36 Stat. 539, c. 309], * * * state laws regulating the contract, obligations, and liability of common carriers of interstate telegrams have been superseded and annulled by the provisions of the federal law.”

After quoting from the law referred to, the court proceeds with a discussion of the question stated, and concludes that the act of Congress does supersede state laws, and that the measure of damages for negligence in failing to transmit ‘and deliver interstate telegraphic messages must be governed by the rule of decision prevailing in 'the federal courts^ Appellant contends that, had this suit been brought in Alabama, no damages could have been recovered for mental anguish. From that as a premise, counsel argues that the law of Alabama upon that subject no longer permits the recovery of mental anguish. It is evident from the opinion referred to that the Alabama court was not attempting to declare the law of that state, but was announcing what it regarded as the law of the United States which had superseded the state law of Alabama. It .was merely construing an act of Congress, and declaring the consequences when found to be applicable to the state of facts then being considered. The law as there an-' nounced, which it was held must control in such cases, is the federal law, whic-h the state of Alabama is powerless to modify. That decision is in direct conflict with the later one rendered by the Supreme Court of this state in W. U. Tel. Co. v. Bailey, 108 Tex. 427, 196 S. W. 516. Suppose the route of the message in the present case had been reversed ; that it had been sent from this, state to a point in Alabama, and had been attended with the same results. In a suit in that state the Alabama courts, if they followed the rule announced in W. U. Tel. Co. v. Hawkins, would be compelled to deny a recovery for mental anguish, but upon the ground that the message, being an interstate contract, the federal law controlled, and not the law of the state where the message originated. Negligence in failing to deliver telegraphic messages is often regarded as only the breach of a contract, and the measure of damages is regulated accordingly. But in the case of W. U. Tel. Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457, such negligence was treated as a common-law tort. Since Congress has not attempted to prescribe the consequences of such torts, or to in any manner fix the measure of compensation, courts are justified in still treating such misconduct as a matter within the police powers of a state.

Appellant cites several authorities from other states which support its contention. These, however persuasive, are iu conflict .with the established rule of this state.

The judgment will he affirmed.
      other cases see same topic and KEY-NUMBER in all .Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    RAMSEL v. MILLER et al.
    (No. 6019.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1918.
    Rehearing Denied May 8, 1918.)
    1. Costs <§=^144, 145 — Execution Against Surety on Cost Bond — Action.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2051, the justice court final judgment must expressly recite the liability of the sureties on the bond given for costs, in order to support execution levied on the property of the sureties; otherwise, a distinct action on the bond by the officers is the proper remedy.
    2. Execution <®=»171(1) — Relief Against— Injun otion.
    In a suit for conversion in unlawfully seizing property on an execution, to support which there is no judgment, a writ of injunction may issue to prevent the sale of the property prior to final determination.
    3. Courts <&^>121(3) —Jurisdiction—Texas— District Couet.
    The district court is without jurisdiction of an action for conversion, based on seizure of property valued at $175 under an invalid execution, for exemplary damages in sum of $50, and for an injunction restraining sale; the amount involved being within the exclusive jui-isdiction of the county court.
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.

      Suit by Harmon P. Ra'msel against Will Miller and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    John A. Jones, of Sinton, for appellant. W. S. Vawter, of Sinton, for appellees.
   SWEARINGEN, J.

This suit was brought by appellant in the district court against ap-pellees for damages for the seizure and conversion of a mule, of the value of $175, and for $50 exemplary damages, as well as the reasonable value of the hire of the mule, alleged to be 75 cents a day from September 26, 1917. Application was also made for a temporary injunction to restrain the sale of the mule pending the determination of the suit. A temporary injunction was granted; but upon a trial of the case the temporary injunction was dissolved and the cause dismissed.

It was alleged that appellees had seized the mule under claim of an execution issued by a justice’s court to force the payment of costs awarded against certain defendants in the cause tried in the justice’s court. It is further alleged that the judgment was not rendered against the appellant herein; that this appellant was a surety on a bond given to secure the costs of the justice’s court case, but that the judgment rendered by the justice’s court was against the defendant in that case alone, and not against the sureties on the cost bond, for which reason there is no judgment against the appellant herein, and therefore an execution, by virtue of that justice court’s judgment, was wrongfully levied upon appellant’s mule.

There is no question about the correctness of this contention. Under article 2051, Y. S. R. T. C. St., the judgment must expressly recite the liability of the sureties on a bond given for costs in order to hold them liable for the costs adjudged. The fact that the sureties signed and filed the bond is not of itself sufficient to make them liable. Glameyer v. Hamilton, 60 S. W. 471; Bodeman v. Reinhard, 54 S. W. 1051.

A suit could be brought by the officers of the justice’s court to enforce the obligation of the cost bond against the sureties, and such suit would be an entirely distinct suit .from the justice’s court suit, wherein the amount of the costs was incurred. Bodeman v. Reinhard, 54 S. W. 1051.

In this case the execution could not lawfully be levied upon appellant’s mule, because there was no judgment rendered against appellant. The seizure was therefore unlawful, and appellees are liable for the damages caused by the wrongful seizure.

In aid of this suit for conversion, a writ of injunction is the proper procedure to prevent the sale of the mule prior to the final determination of this suit for conversion.

However, the district court had no jurisdiction of this cause, because the amount alleged in the petition as sued for is over $200 and does not exceed $500, of which causes the county court has exclusive jurisdiction. The district court, being without jurisdiction of the cause, properly dismissed the cause. Constitution (Ann. by Harris) art. 5, § 16, note 2; Jesse French Co. v. Clay, 40 Tex. Civ. App. 638, 90 S. W. 682; Aquilla Bank v. Knight, 60 Tex. Civ. App. 221, 126 S. W. 893; Brown v. Young, 1 White & W. Civ. Cas. Ct. App. § 1240; Day v. Mercer, 175 S. W. 764; Dean v. State, 88 Tex. 298, 30 S. W. 1047, 31 S. W. 185; De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882; Johnson v. Hanscom, 90 Tex. 321, 37 S. W. 601, 38 S. W. 761; Railway v. Butler, 102 Tex. 322, 116 S. W. 360.

The judgment is affirmed.
      (g^jFor otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    STEPHENS v. MILLER.
    (No. 843.)
    (Court of Civil Appeals of Texas. El Paso.
    April 4, 1918.)
    1. Appeal and Error @=499(4) — Assignments op Error— Supficienct— Statute.
    Assignments of error showing written objections to the court’s charge, but not showing that they were presented to the court before the charge was read to the jury, as required by Acts 33d Leg. c. 59, are insufficient, and particularly where objections filed in the lower court are not the same as those presented on appeal.
    2. Appeal and Error @=499(4) — Record — Sufficiency — Special Instructions.
    The action of the trial court in refusing a special instruction cannot be reviewed in the absence of a showing that the charge was requested in the manner prescribed by Acts 33d Leg. c. 59, requiring presentation to counsel in reasonable time after main charge is submitted for examination.
    3. Appeal and Error @=679(2) — Exceptions to Answer — Record — Setting Out Answer.
    Assignments directed against the overruling of exceptions to defendant’s answer, which was filed in the justice court, cannot be reviewed where the answer does not appear in the transcript.
    4. Appeal and Error @=5548(5), 553(1) — Assignments — Sufficiency.
    An assignment against the overruling of a motion to strike out certain evidence will not be reviewed where the record shows no bill of exceptions to such action; the detailing of alleged reasons why the court erred in admitting the evidence and the statement that plaintiff excepted being wholly insufficient as a basis for consideration of the assignment.
    5. Appeal and Error @=5733 — Assignments of Error — Sufficiency—Definiteness. .
    Assignments of error questioning the sufficiency of the law and evidence to support the verdict and judgment which do not undertake to point out or show the insufficiency are not entitled to consideration. .
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Suit by Fred L. Stephens against J. R. Miller. Verdict and judgment for defendant, and plaintiff appeals.
    Affirmed.

      W. E. Ponder, of Sweetwater, for appellant. J. T. Thomson, A. W. Loveland, and O. E. Dubois, all of San Angelo, for appel-lee.
   HIGGINS, J.

Stephens brought this suit against Miller upon the latter’s promissory note given to cover the purchase price of perfumes, etc., bought by Miller from the Donald-Richards Company, to whose order the note was made payable. Defendant pleaded a failure of consideration, and fraud practiced in the procurement of the note. Stephens claimed to be a bona fide purchaser of the note, for value, before its maturity. Upon trial before a jury, verdict was returned and judgment rendered for defendant.

The first and third assignments complain of the court’s charge. We find in the record some written objections to the charge, but there is nothing to show that these objections were presented to the court before the charge was read to the jury, as required by chapter 59, Acts 1913. Railway Co. v. Dickey, 187 S. W. 184; Commonwealth v. Bryant, 185 S. W. 979. Eurthermore, the written objections filed in the lower court are not the same as those presented here. These assignments are therefore overruled.

The second assignment complains of the refusal of a special instruction. The record fails to show that this charge was requested in the manner prescribed by the act above mentioned. In the absence of such showing, we cannot review the action of the trial court in refusing same. Shipley v. Railway Co., 199 S. W. 661; Hawks v. Longbotham, 188 S. W. 734; Floegge v. Meyer, 172 S. W. 194; Railway Co. v. Jones, 175 S. W. 488.

On October 2, 1916, plaintiff filed in the county court a supplemental petition which contained some special exceptions directed against defendant’s answer filed in the justice court. The overruling of these exceptions is made the basis of an assignment. The answer against which these exceptions were directed does not appear in the transcript, and we therefore cannot tell whether the exceptions were well taken. All of the written pleadings of defendant shown by the transcript appear to have been filed in the county court direct, and subsequent to October 2d.

Error is assigned to the overruling of a motion to strike out certain evidence. We can find no bill of exception to the action of the court in overruling this motion. The only thing to be found is some so-called bills of exception' which simply detail the alleged reasons why the court erred in admitting the evidence, and state that plaintiff excepted. They are wholly insufficient as a basis for the consideration of this assignment.

The remaining assignment questions the sufficiency of the law and the evidence to support the verdict and judgment. Neither the assignment or supporting propositions undertake to show the insufficiency. They are not entitled to consideration, but it seems to us that there is no merit anyway in the assignment, so it is overruled.

Affirmed,
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text:
    KING v. MARION COUNTY.
    (No. 1910.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1918.
    Rehearing Denied March 8, 1918.)
    1. Taxation <@=3549(1) — Tax Collector — Fees—“Record.”
    The word “record,” as used in Acts 34th Leg. c. 147, fixing the compensation of the tax collector for preparing a delinquent tax record at “five cents each and every line of yearly delinquency entered on such delinquent record,” is not synonymous with “book,” “volume,” or “copy,” and the collector is not entitled to double the fee where he copied the compiled matter into a duplicate book.
    [Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Record.]
    2. Evidence <@=>387(10) —Parol Evidence — Contracting Oeeicial Records.
    In view of Rev. St. 1911, art. 2276, where tax collector sues county for fees for preparation of a delinquent tax record, under an order of the commissioners’ court, parol evidence that the order did not correctly describe the contract is inadmissible, as contradicting the record.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Action by J. T. King against Marion County. Judgment for plaintiff for partial relief, and he appeals.
    Affirmed.
    T. D. Rowell, of Jefferson, for appellant. Armistead & Benefield, of Jefferson, for ap-pellee.
   HODGES, J.

The appellant sued Marion county for the recovery of $3,445.00 as fees due for making a delinquent tax record in compliance with the act of April 3, 1915, and other provisions of the general law. See Acts of 1915, p. 250. He appeals from the judgment in his favor for only $1,516.56. This sum he claims was less than he was entitled to under the law which fixes his compensation. The following are the provisions upon which he relied:

“The tax collector shall, in addition to the compensation and costs now allowed by law, be entitled for making up the delinquent record or supplement thereto where necessary under this act the sum of five cents for each and every line of yearly delinquencies entered on said delinquent record or supplement, such compensation to be paid out of the general fund of the county upon the completion of said record or [said] supplement.” Acts 1915, p. 252.

The court found that the appellant had prepared a duplicate record in accordance with law, which contained 34,450 lines, which at 5 cents each amounted to $1,722.50. From this sum he deducted $205.94 allowed as an offset at tlie instance of the county, and rendered a judgment for the remainder. In estimating the total amount due the court made no allowance for the separate entries in the copies or duplicate records. Appellant contends that such was not the correct construction of the law. He claims that he was entitled to 5 cents per line in each of the two copies of the record, which would have made twice the amount allowed by the court. The word “record,” as here used, is not synonymous with “booh,” “volume,” or “copy,” but means the compiled matter which is entered in the book or volume. Having made the preparation of duplicates, or two exact copies, compulsory, there was no occasion for requiring that a copy should be taken into consideration in estimating the amount of the fees earned.- Since the same-data must be entered twice in every instance in order to complete the record required, the use of the singular form of “said delinquent record” is very significant. The Legislature intended to adjust the compensation to the labor which the tax collector was required to perform. This, we know, consisted mainly in the search for and collection of the necessary data preparatory to making the entries. The latter is comparatively a small part of the legal duty imposed. We think the trial judge correctly construed the statute.

Appellant further objected to the action of the court in deducting the sum of $205.94 from the amount found to be due. This deduction was based upon a finding that the appellant had retained that sum from the amount of taxes previously collected by him which should have been paid into the county treasury. The appellee offered in evidence an order of the commissioners’ court showing that at a former date it had entered into a contract with the appellant for the preparation of a delinquent tax record which was to be used by the county attorney in bringing suits for delinquent taxes, and that the appellant was to receive a certain percentage of the delinquent taxes collected by him as his compensation. This order had been entered upon the minutes at the date named. The appellant admitted that he had not made the delinquent tax record described 'in this order. He claimed, however, that the order did not correctly describe his contract with the county, and offered to testify to an oral agreement materially different with which he claims to have complied. The court, we think, properly refused to hear this parol contradiction of the record of the commissioners’ court. Gano v. Palo Pinto Co., 71 Tex. 99, 8 S. W. 634; Brown v. Reese, 67 Tex. 318, 3 S. W. 292; Polly, etc., v. Hopkins, 74 Tex. 145, 11 S. W. 1084. Article 2276 of the Revised Civil Statutes requires such matters to be entered of record.

The judgment of the trial court is affirmed.
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author: WILLSON, C. J.,

text:
    DEWBERRY v. GEE.
    (No. 1905.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1918.
    Rehearing Denied Feb. 28, 1918.)
    Appeal from Hopkins County Court; T. J. Tucker, Judge.
    Action by L. E. Gee against J. S. Dewberry. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. A. Dial, of Sulphur Springs, for appellant. C. E. Sheppard, of Sulphur Springs, for appel-lee.
   WILLSON, C. J.,

This was a suit by appel-lee against appellant for damages for a breach by the latter of his undertaking to sell the former 10,000 bushels of peaches at 40 cents a bushel. The peaches were to be of the Mamie Ross and Elberta varieties. Those of the Mamie Ross variety were to be delivered at Sul-phur Springs, and those of the Elberta variety were to be delivered at Crush or Como, stations on the Missouri, Kansas & Texas Railway, 6 and 10 miles, respectively, from Sulphur Springs. The appeal is from a judgment in appellee’s favor for $500.

As we view the record, the debatable question presented by the assignments is the one as to the sufficiency of the testimony to prove the market value of the Elberta peaches at Crush and Como at the time they should have been delivered there by appellant. The conclusion reached, after careful consideration, is that the testimony was sufficient.

The judgment is affirmed.


text:
    TEXAS & P. RY. CO. v. BAUSLEY.
    (No. 1918.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 14, 1918.)
    Appeal from Harrison County Court; W. H. Strength, Judge. '
    Action by H. D. Bausley against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. Bibb & Bibb, of Marshall, for appellee.
   HODGES, J.

This apneal is from a judgment in favor of the appellee for the sum of $200 as actual and exemplary damages for false imprisonment. There are no new issues of law involved, and the facts, we think, sustain the judgment ; and it is therefore affirmed.