Looscan v. County of Harris , 1883 Tex. LEXIS 56 ( 1883 )

Walker, P. J. Com. App.

The question is distinctly made on the face of the petition, whether the district attorney may, under the authority conferred on him as such officer, institute this action in the name of “the county of Harris,” without the consent, and against the will even, of the commissioners’ court of said county.

The defendants’ exceptions to the action, so far as they sought to recover back from defendant Looscan the money received on the drafts which were issued to him, were sustained by the court, and the cause has proceeded to trial and a final disposition of it below on the remaining branch of the case, viz., as a bill or petition to enjoin the further issuance or payments of drafts in favor of the defendant Looscan, on account of salary or compensation to him under and by virtue of the order passed in 1877.

The commissioners’ court, presided over.by the county judge, is virtually a council vested with power to manage and direct all such material and financial interests of the county as the laws of the state have confided to its-jurisdiction. The management of the financial affairs of the county have always heretofore been vested in tribunals which have existed at different times under various names and designations, such as county court, commissioners’ court, etc.; they have, however, all been clothed with similar powers, and like duties have been imposed upon them. The • commissioners’ court undoubtedly has the right to cause suits to be instituted in the name of and for the benefit of the county, and except where a concurrent right to do the same thing, or tvhere an exclusive right in a specified case or cases is conferred upon some other tribunal or some other officer of the government, the commissioners’ court- must be deemed to be the quasi executive head of the county, vested with exclusive power to determine when a suit shall be instituted in the name of and for the benefit of the county.

In the case of Colorado County v. Beethe, 44 Tex., 450, Justice Ireland said: “ To the county courts is committed the duty and responsibility of providing for the financial welfare of the several counties. The county courts could not be justly held to a strict accountability, as they should be, if the funds they are required to provide, in order to carry on the affairs of the county, can be used, paid out or in any way disposed of, without the knowledge or consent of these courts.”

With no less force do these remarks apply to the assumption that suits may be brought at the option of a district attorney, or of any other official, in the name of the county, without the knowledge or consent of the county judge and the county commissioners of the county. Expensive and often unnecessary litigation would in many instances occur, inducing financial embarrassments and absolute losses to the county, against which the official guardians of the county’s interest in financial matters would be often rendered impotent to protect. The existence of such a right, in discord and conflict with the powers and duties of the commissioners’ court, would promote confusion, create uncertainty and doubt, and in the end might paralyze the power of that court to efficiently regulate the financial affairs of the county.

Among the evils attendant upon the denial of the exclusive right of the commissioners’ court to authorize suits in the name of the county, would be that suits might be brought and carried to judgment without the knowledge of the commissioners’ court of the existence of litigation, the results of which would be conclusive and effectual against the county. In such cases the county would have been deprived of the benefit of the care and judgment of that tribunal in whom is reposed the duty of guarding the financial interest of the county. Their timely action in such case might have either prevented the litigation wholly, or else have induced a different and more beneficial result. Yet, if suits may legally thus be brought, it follows that the county is concluded by the judgments rendered against it.

In De la Garza v. Bexar County, 31 Tex., 485, where the chief justice of the county instituted the suit in his own name for the benefit of the ■ county,' the court, in the opinion delivered, said: “There is no doubt of the intention that the county should be the real plaintiff herein, but as there is nothing in the record to show that the county authorized the institution of the suit, or took or ordered any measures to prosecute it, it might be considered doubtful whether the judgment rendered could be pleaded as an estoppel to an action that the county might cause to be instituted in its own name.”

Art. 260, R. S., provides that “ when it- shall come to the knowledge of any district or county attorney that any officer in his district or county intrusted with the collection or safe keeping of any public funds is in any manner whatever negléóting' or abusing the trust confided in him, or is in any way failing to discharge his duties under the law, he shall institute such proceedings as are necessary to compel the performance of such duties by such officers, and to preserve and protect the public interests.”

[Opinion approved February 9, 1883.]

The brief of counsel for appellee cites the above article in support of the proposition that this suit was properly brought by the district attorney. We are clearly of the opinion that the cases contemplated by the article above quoted do not embrace the causes of action against Looscan which are set forth and relied on in the amended petitions before us in this record.

We are unable to discover any statute conferring upon the district attorney a right to institute this suit in the name of the county of Harris, nor is the right to do so deducible from the general duties required by the constitution and laws to be performed by that officer, nor from any of the powers conferred upon him as the representative of the state.

The views which we have expressed on the question at issue are not to be confounded with the doctrine which allows private persons, in certain instances, to sue in their own name or names, officers of the county who may be misapplying or wasting the public funds, or doing other acts which injuriously affect the private citizen. “ The jurisdiction of courts of equity to restrain the proceedings of municipal corporations, at the suit of citizens and tax-payers, where such proceedings encroach upon private rights and are productive of irreparable injury, may be regarded as well established.” 2 High on Inj., sec. 1236. See also secs. 1237, 1238, 1239 and 1321.

We conclude that the judgment ought to be reversed, and that the supreme court should render the judgment which the court below should have rendered, viz., a dismissal of the suit. See Hays v. Stewart, 8 Tex., 358.

Dismissed.