*1 617 PER CURIAM. 274, thе 2d 349 S.W. Blalack, Tex. Civ Williams v. was privilege sustaining plea
judgment trial court a Relator, ap- was who Appeals. affirmed the Court Civil Supreme Court cause, presented pellant to now has to petition writ of mandamus motion for his for leave to file a ques- certify Appeals require the Justices of Civil the Court deci- ground tions on the conflicts their decision appeals. of this sions Court and other Courts of Civil Stat., 1821, amended Article Ann. Civ. Vernon’s Tex. provide deprive Supreme nothing
1953
should
therein
jurisdiction
falling
the terms of
Court
case
within
1728,
1
Article
either
2 of
Vernon’s
Subdivision
Subdivision
Stat.,
brought
Tex.
Court of
Ann.
which was
Civ.
Appeals
appealable judgment
court.
from
the trial
Appeals
If the decision of the
of Civil
mentioned above
prior
of Civil
does conflict with
decision of another Court
by relator,
Supreme
the Su-
Court as contended
jurisdiction
preme Court
writ of error
of the case.
See
Co.,
607,
706;
Brown v. Gulf Television
306
2d
157 Tex.
S.W.
Hammonds,
207,
Hammonds v.
155 Tex.
285
2d
State
S.W.
Wynn,
v.
Tex.
301
76.
will
157
Mandamus
require
questions
issue
certification of
a case which can
Joseph
Archer,
us
reach
of error.
Zukin of
writ
California
file
Pritchard & Abbott Et McKenna,
Patrick Et Al H.
No. A-8297 Decided October Rehearing Denied November 2d 333 *2 Jeer, Fulbright, Freeman, Houston, JaworsJci, Croo Bates & Bradshaw, Houston, firm, B. J. with above & Pritchard Abbott others.
MarJewell, Stubbs, Dalehite, Galveston, Graves, DeeJeer & Austin, Dougherty Gee, County & for Galveston and others. Urbani, Galveston, Brewer, Tramonte & and Leo San An- tonio, McKenna, Patrick et al. H.
CULVER, Justice. tax- other certain brought McKenná This suit was con- that a certain County praying paying citizens of Galveston aсting County between Galveston tract entered into through Prit- partnership its Commissioners firm, Abbott, appraisal declared void chard & enjoined from thereof be member Court and each might money that sums paying Pritchard & Abbott held the The trial of the contract. due under the terms prayed for. injunction as null contract and void and issued affirmed, hold- The Court of Civil entering this con- into ing (1) that the Commissioners Court functions, prerogatives usurped duties tract therefore that the Assessor and Collector Court; (2) that powers of the Commissioners ultra vires the *3 provide employed to Pritchard & Abbott were under 7264a, by Article defined “a for the Tax Assessor” as Statutes, since the contract Annotated Civil and Vernon’a required joined by Comptroller approved as the State by that article it is invalid.
Admittedly expressly clothed Court is not the Commissioners authority statutory to contract constitutional or with authority agreement, think that services detailed in this but we granted expressly implied powers that have from the been body by imposed upon and the duties this law. V, Constitution, provides part: Article State
Section County chosen, County Judge with the Commissioners so “The officer, County presiding compose the shall Commissioners as jurisdiction Court, powers and all which shall exercise such over by county business, this is conferred Constitution as State, may prescribed.” The be hereafter or as laws equal provides that “Taxation shall be also Constitution by State, property in whether owned natural All this uniform. municipal, cоrporations other than shall be taxed persons or value, which shall be ascertained as its proportion to County Com- by Article VIII. The provided law.”' Section equalization as a constituted board Court is missioners VIII, County. Article Constitution. State Section County Equalization heavy Board a places upon the The law given necessity it must be considerable and of responsibility charged carry responsibility. The Board is out power to correction, equalization approval inspection, with assessments made pressly is ex- Assessor. The Board require production authorized books of relevant papers persons and to examine them under summons oath in property order to ascertain the value of the taxable to raise or lower the Article 7206. same be warranted. requires The statute when the Court con- court, venes as a board of in- each member of the cluding County Judge, shall faith- take an oath that he will fully perform imposed upon prop- duties him see that all erty subject to taxation the tax shall stand on rolls at its true value, any cash market Article and if member of that knowingly Board shall fail refuse to fix the value of compliance rendered for taxation in with the laws of State that failure or refusal shall constitute malfeasance in office shall be cause for his removal. Article 7216. say
Respondents taking the contract calls for and results in over the Tax functions of the Assеssor the Commissioners Court and that this in- conclusion is borne out the evidence troduced case:
So far as the consideration of the evidence introduced think, the rectly Appeals, case is concerned cor the Court we provisions being reviewed the of the contract as clear ambiguity. being validity free of I’hat true its vel non to be from inspection determined of that document alone without any taking the aid of other evidence and without into account parties attempting comply acts and conduct agreement. following of this *4 terms cases cited Court of Civil not hold do otherwise. Lone Star Gas Company X-Ray Company, Tex. Gas Company Exploration Gulf Coast v. Hamman Com- Water pany, City App., refused, Civ. 160 S.W. 2d writ of and Tex. Andrews, Athens v. Civ. re- S.W. 2d writ fused. fully respondents pointing out, with in
We are accord they do, County County the that Commissioners synonymous they quite not nor are one the are and same. We agree County charged the not that Commissioners Court is County’s management and of all of the control the af- business officials, including of the various elected fairs. Each sessor-Collector, the As- delegated sphere has the that is to him law may and which the Commissioners Court not within interfere or say usurp. But not to that the functions that of the Board are so diverse the Equalization of and of Assessor-Collector those obtained lawfully and contracted that information not be of aid to be Equalization likewise Boаrd because it duty It performance his duties. in the of the Assessor taxable all well to determine value Assessor as property county.; in the statutory is that procedure outlined Article 7206 convene as board Court shall year Monday May or at least before
on the second of each bring before day is to that first June. At time Assessor inspection if and correction Board his assessment list for the necessary. ap- examined, After Board has corrected list, proved prepares the tax roll and the Assessor the Assessor’s Collector, Comptroller and copies furnishes to the Tax State County Clerk. to the
Many pieces property of real are located Galves- thousand including structures of ton residential business kinds, lands, facilities, properties vacant oil various harbor types. expert other installations and Without assistance begin carry out its functions sworn obli- Board could thorough appraisal of all taxable is a gations and a necessarily preparation. would months of We task that involve called for work it is of no moment think prior meeting Equalization done to the Board and to be presentation up to the Board of the made to the assessment list by the Assessor. opinion
The contract is set out full in the the Court Actually duplicated. Appeals and will not here be paragraph of the contract sets forth the opening substance by Pritchard as the to be rendered & Abbott as well the services County gained from those follows: services as benefit WHEREAS, County “That, Galveston, State acting by through Court, Texas, its Commissioners’ necessity for, ais will there determined generally, of said and its to the best interest citizens experts, appraisal employ skilled valuation of producing gas properties, properties, industrial oil and/or *5 buildings, make and to record of lands buildings the prop- within so that all lands and all properly may purpose valued for the be of taxation erties equalized.” thereof and values
Respondents seem to that if re- concede this contract were stricted appraisal gas to the properties oil and other required special experiencе possessed skill “not the ordinary person” the contract would would not be invalid. This true, they say, necessity” be because as a matter of in “sheer appraisers employed. agree that field skilled with that do not must be We reasoning. required appraise The matter skill degree. different appraisal kinds of is one of only requires gas, function expert not in of oil the field expert but may ordinary also an in field of the what be said be person” ordinary qualified real estate values. “The is no more to value gas real than he properties. estate is to value oil and requires special training, experience Each qualifications. may qualified experts fact that there be in more the field ordinary real producing prop- estate in values than oil determining erties and installations cannot be material in the power of Equalization expert the Board of to retain To advice. say may experts that the hire in in Board one field but an- not by logic other is borne out neither nor the authorities. Roper Hall, Tex. Civ. no writ history, implied power the Commissioners Court was held to have compilation to contract with an for its individual data use sitting determining while as a board of tax- gas county. properties able value oil The court held “The services contracted to be rendered called for informa- experience ordinary possessed person. tion and not So they discovery, assеssment, far affected and valuation of they properties, performed oil unrendered by could not have been possessed extraordinary unless he in- Assessor along required experience Respondents formation and lines.” say this rule should not be extended so as to all of cover county. apparently theory real estate This is on based always qualified the Tax Assessor is considered as a expert properties. run real premise as to the usual Even if this not, Equalization which it Board be true not bound by the no matter expert values fixed Assessor how he why independent fail to see the Board not be. We seek property, forms of expert information as to all taxable other- position the members of the Board would wise to revise Assessor’s but would be correct the Tax list derelict in their Roper nothing duty. case to There is indicate that appraisal such contract to the intended to limit of oil gas interests.
623 are some- authorities question us the As to the exact before meager wholly what and not decisive. State, App., Royalty Company
In Tex. Civ. Federal taxes recover 670, brought by of Texas to 2d suit the State was gas lands. royalty and interest oil foreclose tax lien on and was company ground assessment that The defended on the County had Assessor. because not made void inform- employed expert furnish to it an therefore secure equaliz- county for use in gas properties in ation as to oil and Assessor that ing The court concluded both assessments. such information that Board could make use of this
and the ques- passing upon In practice did the assessment. not void “where, tion, by way dictum, that probably the court observed authority given employ State, express such in this no as expert expedience aid, implied, to do so is Court.” doing of the Commissioners so is within discretion company not contend that that case did It is evident the illegal. rendered less author- The decision is affirming did not discuss that this court itative also because royalty holding in- matter, that the disposed case but question real estate.1 was taxable as terests 378, State, the Com
In
155 Tex.
282
2d
Whelan v.
S.W.
arriving
employed
expert
аt
missioners Court
to assist
setting
gas properties.
producing oil and
aside
value of
expert
assist
that “the enlistment
assessments we observed
condemned.”
are further
in such
is not to be
We
matters
ance
the Commissioners Court
in our conclusions that
reinforced
expert
proviso
implied power
contract for
services
Legislature set out in that article
Article 7212. The
contained in
evidence,
hearing
shall
Court “after
the Commissioners
evidence
property in accordance with the
the value of such
fix
Article,
preceding
in the
provided
and as
so introduced
final; provided,
or
shall be
how
in such case
cases
their action
any county
Court of
who con
ever,
if the Commissioners’
individual, firm,
any
corporation to
employs
tracts
individual,
data,
compensation for such
compile taxation
proa
from
corporation,
paid on
rata basis
each
firm or
receiving
derived from such valuation.”
county
taxes
fund
think, that the “evidence” referred
patent, we
implication is
paid
expert advice contracted and
include
article
authority of the Board.
within the
that such
State,
Company
Royalty
Tex.
2d 1021.
S.W.
1. Federal
Respondents
argument frequently cite
in their brief and oral
heavily rely upon
Marquart v. Harris
the decisions in
dismissed,
writ
Civ.
McGill,
They single out
White v.
131 Tex.
ment the contract between Galveston not entered into in connection with the Pritchard & Abbott was delinquent reason not rе- collection of taxes and so for that did approval Comptroller. Consequently quire the of the State Marquart County decisions in v. Harris v. McGill are White point. in opinion subparagraph paragraph 1 In our 2 of of the con- It tract is not so as to vitiate the whole. reads as fol- invalid lows:
“Analyze review the record card Party, bring compiled appraisals heretofore First so as to January 1, 1959, adding to current condition thereon as (due extraordinary growth County dur- Galveston operations Party therein) ing period of of First all new changes in properties, construction and necessitated January 1,1959, thereby ownership supplying to Second land, Party permanent record cards for eaсh lot or tract of location, together diagram showing description with a its land, improvements on located each lot or tract of of all building, showing square feet or cubic each reproduce buildings, per square these or cubic foot to cost value, taking age, depreciated into consideration the economic, features. The card will show the and obsolescent land, price front tract of the unit foot on of the dimensions property located acreage on of all real lots and values tracts card, marked Texas, copy of such in Galveston part hereof.” ‘A’, made a being hereto and Exhibit attached by that sub- imposed upon The duties Pritchard & Abbott only рurpose of the are incidental aid objective namely: properties contract, that all “So thereof properly values purpose valued taxation to con- equalized.” authorized If the Court is County expert assistance tract for and on behalf of the any arriving property appraisals at correct to be of substantial they benefit, supplied in such form must be to the readily new construction accessible to include changes necessary informa- and detailed ownership and other provides. summary subparagraph tion. all that furnish purport It is not a “tax ferret” contract nor does it Equalization information that would not be aid performance This contract would Bоard in the of its duties. placed merely not be rendered void because this information *8 may by in a the Board for so that it be used form year the current and in the as well. future opinion subparagraph provide are of 2 not We the that does “system contemplated Article for such a for assessors” as require joinder Comptroller in the 7264a so as to the of the State case, employment contract of in this of Pritchard and Abbott mainly adjustment Article This has to do with the and collec delinquent taxes, reading tion of 1 follows: Section thereof adjust hereby Policy
“It is of the to declared the State delinquent taxes, errors, in correct to eliminate conflicts surveys land, delinquent, occupation, and to сollect the Taxes, in to clear this State franchise and Ad Valorem order taxes, possible, errors and conflicts at earliest date of such assessors, provide to a for in order to eliminate appear on the tax each the numerous errors that now rolls year.” recurring provides meeting expense 2
Section of the Article for provides delinquent It that the cost the collection also taxes. system” installing plat tax or of delinquent “the shall not exceed 15% part: 4 Act taxes collected. Section reads “This change any regarding to law now in effect intended taxes, delinquent but to to the officials in collection of be aid * * duties, discharge nothing of their *.” There is in the 626 and set down
сontract to information furnished indicate that the or to be on the assessor record card is for the of the benefit contrary, the services turned over him To to for use. his Moreover, para- county. supplied cards are to be to necessary being graph part, of the “and contract recites provided records herein maintain and correct the basic basis, a reliable on current furnish in order the same guide for tax classes of properties of all purposes County.” system provided for Galveston eliminating “the purpose of Article is for the stated 7264a recurring appear on tax rolls each numerous errors year.” Also, now system” plat provides that this “tax or Article conflicts, errors, by any county up to clear installed delinquent paid percentage of the unknown owners and percent. character of taxes collected not to exceed system emergency language used also indicated as follows: clause Article was enacted which this delin-
“The let state taxes become fact that officials have dollars, twenty quent approximately million the amount by adjustment can collected and CORREC- most which ERRORS, counties where further fact that TION OF appear land cause of dollars conflicts millions exist, FACTS show on the tax does not rolls WHICH necessity system, the state the further fact for a tax emergency money, create an are in need of their and counties suspension of the necessity requiring the public exists and a ” * * * Legislature, 42nd Constitutional Rule Laws p. 5. ch. Section
Furthermore, subparagraph obligation in- upon Pritchard and Abbott the impose did not *9 only analyze system,” and review plat stall “a tax or but compiled system and make such correc- theretofore record card necessary. might be tions and additions as put on record cards to be furnished The information wholly appraisals of concerned and Abbott was Pritchard furnishing support properties data of real the value plat appraisals. not a as described Sec- It was those ordinarily indicate a Article which would series tion of the county. maps of the argue if respondents that even the Commissioners Court question, authority to make the contract nevertheless
had the court upheld the district because cannot the Commis- “general supervisory over control” exercise of its the matter. down, and that should end sioners Court struck it has “The provide that 8, does Section Article the Constitution V general su- jurisdiction appellant district court shall have Court with pervisory control over regulations may prescribed exceptions such under such * * by the by law; provision construed This has never been super- empowered to courts court is to mean the district body to sub- or intend the deliberations and decisions in de- judgment for Commissioners Court stitute its that of the Possibly best, advantageous. termining prоper what regula- Legislature might exceptions” and “such enact “such power but tions” as would clothe the district court with has fit do seen so. not Hale,
In 109 Tex. Haverbekken S.W. considering given the extent of to the control district that section of the Constitution said: we
“* * * power supervise Court the District gave proceedings Commissioners’ Court here involved injunction upon the proceedings suit the character of a direct those attack Mc
rather
than a collateral one.
Crawford
Donald,
permitted
88 Tex.
This
full
So that the is limited to a determination as proceeded whether not Commissioners Court ac- cording arbitrarily or acted its to law abused discretion. only question only
this case the before the district court and the entering one or not here is whether the Commissioners Court in authority. contract acted within its lawful are into We propriety not with the of that action concerned nor was the dis- Shivers, trict court. also Stovall v. 129 Tex. See 2d 363.
Being opinion of the that the therefore ultra powers of the Commissioners Court vires the but lies within the authority, judgments scope of its trial court *10 the of judgment are here ren- reversed and denying sought by respondents dered the all of relief trial court.
CALVERT, Justice, (dissenting). Chief my disagreement majority The net effect of is probably petitioners’ more philosophical than it real as affects right recovery, of philosophical is more but it real than legal on principles bears involved. I would hold the con- tract subparagraph invalid I paragraph because of of the con- court, ultra powers tract is vires the recovery of but the commissioners permit by petitioners would reasonable value services materials furnished for which the commissioners power court had to contract. contract,
One crucial issues case is whether it, part powers is vires the of the ultra commissioners proper A court. of that resolution issue does turn on whether by contracting the commissioners peti- for the services usurped statutory power has tioners the constitutional and duties assessor and collector of taxes. The for contract usurp powers services and not at all materials and duties yet may of the tax assessor but be ultra vires. question can any part
There be no if but that of the contract is provides invalid entire contract must fall. The contract payment petitioners $86,500.00, installments, all and materials services $26,500.00 furnished. The first installment paid.
has been The contract is indivisible. There portion is no on can basis which a certain of the consideration allocated services materials for which the commission- power portion ers court has to contract and certain to services and materials for which the court being no contract. That true, if sub-paragraph I of is vires, entirety. Sylvan is invalid ultra its Sanders Scurry County, 709, 710, Co. v. Civ. writ Contracts, refused; 428-431, 13 Tex. Jur. 2d 12 Am. Jur. § Contracts, 739-740, 221. § general
A commissioners court not a court of or unlimited jurisdiction/ By provisions of 18 of Article Section V “powers jurisdiction all Constitution its over the State county only “as is conferred this Constitu- business” such Moreover, powers tion and laws of the its when act- State.”
629 Legislature only “The ing equalization are those as a board of VIII, Texas. 18, of provide.” Article Constitution shall Section par- to enter into of a commissioners Thus the given by or it must be expressly contract must be statute ticular imposed discharge reasonably necessary of duties implied to a as by law; otherwise, ultra the contract vires. Clark the court on County 171, 343, 346-347; v. Finley, Mills v. 93 Tex. 403, 40 Childress Lampasas 90 Tex. S.W. 1011, 1016; County State, 2d Canales 127 Tex. 92 S.W. 451, 453; 15 Tex. Jur. 2d
Laughlin, Counties, 261, 317, 92. §§ by petitioners un- performed
The were to be services which sub-paragraph der 2 were to system
“Analyze permanent record card and review Party, bring by appraisals compiled so as to heretofore First 1, 1959, adding January as of thereon to current condition extraordinary County (due growth dur- Galveston Party ing operations therein) period of of First all new changes properties, necessitated construction 1959, thereby Jаnuary 1, supplying to ownership Sec- Party permanent record cards for each lot or tract ond * land, descriptive to contain certain information. The cards were expressly authorizing a commissioners I can find no statute provided type of services sub- court to contract for the majority to I do not understand the sustain 2. validity express portion on the of that basis remain, therefore, authority. only questions are which impliedly portion of authorized implied power. whether that pursuant to the court’s was executed whether analysis suggest a careful record I that on basis of negative. questions be answered us both should before ambiguity provisions agree no quite that there is I performed type relating to the to be sub-paragraph services ambiguity hand, there is much petitioners. the other On sub-paragraph refers. to which the What the other matters system” compiled First therefore “permanent record card the Party? compiled? purpose was it For whom and for what When questions These completed and delivered? cards were the must be say answered before we can the further services relating system to the reasonably necessary card were to a dis- charge commissioners court of its duties as a board court, therefore, and that implied power had contract for such services. testimony in the record discloses that
Court of petition- Galveston entered а contract into ers about prepare 1955 to con- record card taining substantially the provided same information sub- *12 evidence, 2. The 1955 in contract was not introduced testimony but the of the Tax Assessor and Collector of Galveston County and his chief deputy, and of Truett Pritchard and one petitioners’ of employees following the uncon- leaves matters troverted: A separate lot, card to each prepared was be for parcel or tract of rolls; land listed on the was no card assessor’s to prepared be rolls; appearing for lot or tract not on the there cards; would be a approximately 100,000 total of Pritchard provide Abbott were to the steel cabinets for tax as- office, capable containing 120,000 sessor’s cards, of in which the cards were filed; to be the to tax cabinets delivered the were 1959; completed they assessor’s office in when the cards were were to be cabinets; filing delivered in to the tax for the steel assessor they per-
when so delivered a and filed were to become manent record in office; they the assessor’s were to be used the appraising tax property figuring assessor in as a basis for presented equaliza- assessed to valuations to of future boards tion; completed the cards had been contract of not when the executed; 1959 was parties con- to 1959 contract did not templаte completed until cards would be available after the board of had its work for the concluded year completed of the cards had been when suit not October, in was filed and had not been when this delivered sample case A in was tried. card is the record. testimony quite undisputed
From the here summarized system” “permanent clear that record card to in referred subparagraph type permanent property new record assessor, primarily to be constructed for the office tax for discharge statutory system his in use of his duties. That equaliza- have been some incidental value the board reviewing in assessments made tion assessor does not permanent fact. All in alter that records the assessor’s office equalization. value the board of are some While the valid- ity directly validity here, of the 1955 contract in issue its com- deciding whether determined, incidentally, in must be further services for to contract authorized court was missioners contract. product of that revising reviewing the work in records types expressly provide The statutes him aid a tax assessor must, may, provided which court must commissioners discharging his official duties. keep a record must he books which furnish the assessor with county which he must show surveys and in of all of land Arts. 7195 thereof. value the land whom is rendered furnish the assessor must also The court V.A.T.S. keep required a record make and he is books which with villages, cities, show- towns and of all bloсks subdivisions V.A.T.S. thereof. ing and values the owners Art. mandatory form prescribing the exact referred to are
statutes addition, con- commissioners of these records^ Comptroller, preparation joinder tract, of the State 7264a, types system.” No other plat Art. V.A.T.S. “a tax or law. authorized Petitioners are records held, “permanent majority record insist, have they system” to construct and deliver to the were which card type is not and Collector Galveston Tax Assessor *13 by They plat system” authorized Art. 7264a. must “tax or contend, contract would be void for otherwise their since so suggested. by Comptroller even approval is not For the State majority I shall assume are correct of this dissent purposes sustaining The net result is that that the Com- contention. petition- contracted with of Galveston missioners type of an in the construction extensive for services in 1955 ers office which permanent property record for the tax assessor’s by law, expressly impliedly. either That is unauthorized better, might far type prepared be far more record to be by law, useful, any not make the does contract than authorized legal. power types The to determine what by kept furnished to and tax assessors is con-
records shall be Legislature on the Constitution not on com- ferred If 1955 or on court. the contract of courts this missioners clearly 7264a, contemplated type of contract Art. not the court, powers subpara- vires the the commissioners ultra graph providing 2 of I for further services contract, Comp- completion unapproved the 1955 State rights troller, ultra vires. The of the under parties is likewise the 1955 here and need not and contract are not issue cannot be decided.
632 foregoing petitioners conclusion not mean does recovery should be denied a for their services for which the com- power missioners court had to contract. The trial court refused to admit services, evidence of the reasonable value of those held, that court and the Court of Civil aas matter of law, petitioners quantum cannot recover on on meruit their cross-action for services mаterials furnished. my opinion holding is erroneous. parties agree recovery quantum can there be no on
meruit for municipal services or corpora materials furnished a tion corporation under contract power which the has no make. See County, Nunn-Warren Pub. Co. v. Hutchinson Tex. App., 651, refused; Civ. County, 45 S.W. 2d writ Aldrich v. Dallas App., 560,
Tex. Civ. dismissed; 167 S.W. 2d writ Noel City Antonio, App., 263, San Tex. Civ. writ S.W. refused; County, 480, Baldwin v. App., Travis Tex. Civ. 88 S.W. They recovery may writ agree refused. also that a be had on quantum meruit for municipal services or materials furnished corporation corporation under a power contract which the has to make but which City is invalid for other reasons. See Finn, 111, Houston v. 139 Tex. 161 S.W. 2d West Audit Co. v. Yoakum App., Tex. Com. 35 S.W. 2d Sluder v. City Antonio, 841; City of Sаn Tex. Com. S.W. 2d French, San Antonio v. 440. No cases have parties, none, been cited I dealing directly and have found right quantum with the to recover on meruit for services and materials municipal corporation furnished for which a has power when requires to contract therefor also furnishing of corporation services and materials for which the no to contract. County Ducie,
Petitioners do cite Galveston 91 Tex. authority. That right case involved of a *14 physician damages for to recover breach Galveston two-year prisoners of contract to render medical aid to paupers inquests agreed compensation and attend for an per to question month. answer a certifiеd $80.00 we held county power that the had the to make the contract for services paupers prisoners power no to but had to contract for the inquests; physician’s attendance at and we further answered physician damages could and held recover for breach reasonably less the contract what his services would be worth attending inquests. for analysis of Galves- an from Whatever be said otherwise just result that a County Ducie,
ton must admitted proposition cited All of hereinbefore reached. the cases ato furnished materials that one recover for services it has which contract municipal corporation an invalid under By justice. holding equity make, to rest their Finn, 161 way City examрle, of Houston v. said in this court illegal under discussion “In the instances 777: contrary, agreement contract. To is not enforced as a The contract illegal agreement at all. not enforced as such is justice implies, because the law is enforced is one to receive permitted municipality shall not be demands that a paying the agreement without and retain the benefits reasonable value of such benefits.” power to County had the
In the case instant Galveston to be furnished all and materials of the services for the inclusion required sub-paragraph 2. But those save not be void. All of the contract would of that subparagraph parts required under all other materials services and County hаs had been furnished and Galveston contract have county pay requires that the should Justice the benefit them. permitted recover reason- for them. Petitioners should be under furnished value of all rendered materials able services contract, provisions of the exceed all of the $86,500.00, less the value of services reasonable consideration sub-paragraph 2 the sum of performed and less under paid. heretofore $26,500.00 judgments the trial court the cause be remanded reversed and should
Appeals should be proceedings this further consistent with trial court for opinion. join and Norvell dissent. Justices Smith
Associate Savings Association Gibraltar Banking Falkner, Commissioner of Texas J. M. 15, 1961 A-8286. Decided November
No. 2d 534