Anderson v. Ashe , 99 Tex. 447 ( 1906 )

This is a certified question from the Court of Civil Appeals of the First Supreme Judicial District. The statement and questions are as follows:

"A.R. Anderson, sheriff of Harris County, brought this suit in the district court against John B. Ashe, auditor of that county, to compel him by mandamus to officially countersign a warrant upon the county treasurer for the sum of $225.00, issued to Anderson by order of the commissioners' court of Harris County, for certain items of indebtedness which the commissioners' court had adjudged to be lawful and just and had allowed. It was further alleged in substance that the defendant Ashe was the duly appointed and qualified county auditor of Harris County. It is shown by the averments in the petition that the warrant was regular on its face, was drawn upon the county treasurer, who had in his hands money to the credit of the fund on which it was drawn sufficient to pay it; that it was so presented to the county treasurer of said county, who refused to pay it unless it was countersigned by the county auditor.

"That the law creating the office of county auditor and prescribing his powers and duties requires him to countersign all warrants issued by order of the commissioners' court, and forbids their payment by the treasurer until so countersigned.

"That thereupon the warrant was duly presented to the auditor, with the request that he countersign it; that the auditor refused, on the ground that the claim on which the warrant was based had, in compliance with the law creating his office, been presented to him to be audited and approved prior to its presentation to the commissioners' court for action; that he had investigated the claim, and had refused to approve it on the ground that, in his judgment, the county was not legally liable therefor; that the claim was in fact so presented to the auditor and was rejected by him, but that it was thereafter presented to the commissioners' court, who duly allowed it, notwithstanding the auditor's rejection, and authorized the warrant in question to issue in settlement and discharge of the claim. There were other allegations showing the nature of the items composing the claim on which the warrant was based, and the showing is made that applicant has no adequate remedy at law.

"No relief was sought in the suit except mandamus to compel the auditor to countersign the above described warrant.

"The trial court sustained a general demurrer to the petition, and the plaintiff, refusing to amend, the cause was dismissed. It is before us on the appeal of plaintiff from that order.

"We do not set out the petition at further length because we are of opinion the parts which we have set out in substance are adequate to the purposes of this certificate and the questions hereinafter propounded.

"We respectfully certify for your decision the following questions:

"First. Did the district court have jurisdiction of the cause?

"If it be held that the district court had jurisdiction, then there arises, among several questions necessary to be decided in determining the sufficiency of the petition, the following, which we also propound:

"Second. Did the commissioners' court of Harris County act within its powers in considering and allowing a valid claim against the county which the auditor had audited and refused to approve?

"Third. Had the county auditor, when called upon to countersign the warrant, the right to inquire into the validity of the claim or account in discharge of which it was issued, and to refuse to countersign it if he concluded that the claim, or any part of it, was not a proper charge against the county, or to refuse to countersign the warrant because he had not theretofore approved the claim?"

We answer the first question in the affirmative. The amount of the claim was not in controversy in this case. The relator did not seek any judgment of the court as to the amount or the validity of his claim, but simply to enforce the performance of a ministerial act enjoined by law upon the auditor. Luckey v. Short, 1 Texas Civ. App. 5[1 Tex. Civ. App. 5].

To the second and third questions, we answer that the county commissioners' court had no power to allow the claim after it had been presented to, examined and disapproved by the auditor. The Act of the 29th Legislature, chapter 161, authorizes the appointment of an auditor in any county in which there may be a city of twenty-five thousand population, and provides as follows: "Section 15. All claims, bills and accounts against the county must be filed in ample time for the auditor to examine and approve same before the meeting of the commissioners' court, and no claim, bill or account shall be allowed or paid until same shall have been examined and approved by the county auditor. It shall be the duty of the auditor to examine and stamp his approval therein, etc." (Laws 29th Leg., p. 383). The language quoted is mandatory, and makes the approval of the auditor a condition precedent to the exercise of jurisdiction over the claim by the commissioners' court. 26th Am. Eng. Ency. Law, p. 639; Stayton v. Hulings, 7 Ind. 144; State v. Hilmantel,21 Wis. 574. It follows that the order of the commissioners' court allowing the claim, which was made after the rejection of the claim by the auditor, was void, and the auditor was authorized to refuse to countersign the warrant which was issued under such order.

Art. 790, Rev. Stat., reads as follows: "No county shall be sued unless the claim upon which such suit is founded shall have first been presented to the county commissioners' court for allowance, and such court shall have neglected or refused to audit and allow the same, or any part thereof." It is claimed that the effect of the Act of 1905 was to prevent the commissioners' court from acting upon relator's claim, and, since he can not sue unless his claim be rejected by the commissioners' court, he is denied any remedy. If that were the effect of the law of 1905, we would necessarily hold that part of the act to be void, because the legislature could not take away from a party the right to pursue his remedy in the courts, unless another remedy be provided. We conclude that the rejection by the auditor put it out of the power of the commissioners' court to act upon the claim, and amounted to a rejection by that court, bringing it within the terms of article 790 of the Revised Statutes. Under this view of the statutes, the plaintiff in this case had the right to sue the county of Harris to establish his claim against it. This construction preserves the rights of persons having claims against such counties, and enforces the legislative intent.

The legislature, under art. 5, sec. 18, of the constitution, having the power to regulate the jurisdiction of the commissioners' court, had authority to make their jurisdiction depend upon the approval of the auditor, and, having done so, the courts are not authorized to construe the language so as to defeat the purpose of the legislature.