*1 collision; physical visibility nor dan- plain do or facts gerous proximity train, duty stop, nor make him an consequences requirement insurer of a collision.
stop liability is not the as same for an he failed to accident. If stop behind, any because car ran another into him from good reasons, justified of countless other in his technical he is violation of the statute. any event, foregoing
In authority represented by applied cases and the two Indiana federal decisions which law, eminently weight respectable, Indiana while has little point numbers, conceivably may yet turn out to be a minority applied as like view statutes and situations those us, do, think, now us. It before need not control if I we points way. better reason the other
Opinion May delivered 1956.
Rehearing ,1956. July overruled
Roy Graham, A. Al Scott Et v. Marshall P. Et Al.
No. A-5618. Decided June 1956. Rehearing July overruled (292 324) 2d Series *2 Scott, Christi, Roy petitioners. Corpus A. of holding Appeals The this suit Court Civil erred in judgment was a attack the commissioners collateral Bourgeois Mills, ordering payment of such funds. v. 76; Stovall, 129 60 Texas Shivers 363; Court, 281 Commissioner’s Wallace Margaret Corpus Christi, Brown,
Howell B. Ward respondents. delivered the of the Court.
Mr. Justice Walker denying temporary injunction trial court order respondent, Marshall P. to restrаin the $600.00 Graham, by for services rendered Dis- the latter as Assistant Attorney trict Nueces affirmed Court Appeals. of Civil 2d 443. hold that We necessary part suit, temporary to the and that the refusal of a necessary parties, when there is an who absence of might suit, readily joined cannot deemed abuse of discretion. 13, 1954,
On appointed December Assistant Attorney District temporary of Nueces aon basis Todd, Jr., D. Attorney. Honorable J. who District was then approved appointment Commissioners and entered fixing respondent’s salary an order per day at work “$25.00 pay Respondent reappointed exceed total was not $600.00.” *3 Jones, when Honorable January 1, Attorney Sam L. on Jr. became District January 31, 1955, respondent 1955. On subitted his claim days for services rendered for at $687.50 27% per day, and about a week later the Commissioners $25.00 entered Court directing
an order paid that he for his be serv- $600.00 ices. days later,
A petitioner, Scott, few Roy A. instituted this court, suit in the district on behalf of himself and other tax- paying County, praying citizens of Nueces that the order of the authorizing- payment respondent Commissioners Court the adjudged effect, restraining void and of no and that a order and temporary injunctions permanent prevent and issue to such payment. Respondent, Treasurer, County County Judge, and County Commissioners named as defendants were in an amended petition prior hearing temporary injunction. filed to the on the party corporate Nueces was not made a in its name. A temporary restraining issued, hearing order but after a petitioner’s application temporary same for a was dissolved and denied. was determine, So as we have able to this court far been has not expressly county necessary party a decidеd whether is to an county action of this character. It has held that will by, necessary party to, and hence en be affected suit to join Wilson, sale the issuance and of its Texas bonds. Prowse v. (no App., writ) ; Snelson, 2d 791 Miller Civ. 203 v. Texas S.W. (affirmed App., 364, 504 126 2d 133 129 Civ. S.W. Texas S.W. Although 288). Appeals 2d Civil affirmed, pointed ques case was we out that the Snelson county necessary party was a not tion whether was before 100 re- the motion
us, preserved in point not because the was hearing lower court. appeals v. holdings civil in Allison
The of the courts of writ; Ellis, 814, Estes App., no Texas 248 S.W. Civ. App. of Hood Texas Civ. Commissiоners Court Wildenthal, writ; and Davis v. 2d no county n.r.e., that App., wr. ref. Civ. 241 S.W. per- necessary party restrain is a to an action to executory contracting parties any of the formance officials, are county its contract made in the name of the undoubtedly case, has As stated in the Allison sоund. right officers to which its in at the death of contract it, in a determined suit bound and its interests cannot be have to however, present case, party. In the which it fully performed seeks county funds. restrain the also case holds that Wildenthal necessary party transfer its to an action to restrain the con- general funds to the fund and the stitutional disbursement general application thereof demands of the fund. The ruling. complain of this writ of error in case did proposed transfers ex- illegal, penditures clearly rule an- were and that under Middleton, App., in Terrell Texas Civ. nounced refusеd, and followed writ *4 360, 709, Harrington, 144 2d in Cobb v. Texas 837, necessary party county not a suit to A.L.R. the a to enjoin the same. Reed,
In Harris Tax Assessor-Collector v. Civ. reversed, Ass’n. App. 2d Texas Automotive Dealers 225 S.W. it was held v. Harris 149 Texas 229 S.W. supra, authority Harrington, of that the coun- the Cobb v. county ty necessary against part and is not a action state judgment declaring purchasing a that dealers officials to obtain filing exempt applications are motor vehicles for resale from paying certificates title and the for transfers of licenses and of might argued penalties connectiоn It fees and in therewith. holding implicit is in our of approval this affirmance that case, did judgment the trial court in that but we the proper question it to consider the same the and think is discuss this time. at by that an a tax- and cases hold action
The Terrell Cobb illegally payer against restrain the latter from state officials to disbursing declaring public that funds, or a to obtain plaintiff subject particular tax, the suit is not to a not a state is against immunity suit. the the its from state within rule of County cases, In the appellate intermediate and the Wildenthal Harris apparently re- courts that an action to reasoned if against illegal expenditure strain the funds not a of state is suit enjoin improper state, a then suit disbursement county county against county is not a the the funds suit hence —and necessary party a is not thereto. This assumes that (1) principles same factors and control determination of: against its whether an action is the person within the rule state immunity, legal proceeding. (2) necessary party a is and whether to a assumption. And this not a valid opinion Harrington, supra, in makes it Cobb clear against that whether a suit is its the state within the rule of immunity by sought is determined nature of relief against рerson the state and its officials. is a Whether neces- sary party subject is determined his interest in the matter Thomason, and outcome suit. As in stated Veal v. persons 159 S.W. 2d all or who have claim a object subject direct in interest and matter of the suit and necessarily by any judgment whose interests will affected may only proper parties, therein, be rendered are but necessary indispensable parties. are and county clearly necessary It is our indispensable party Although petitioner to this suit. sues his right taxpayer, county own has an more direct even subject interest in matter thе case. Its outcome presence corporate required before the in its name finally interest, because of its but also to the court enable dispose controversy proceeding*. of one Without judgment against county, nothing prevent there will be making its future officials from which enjoin. now seeks to provides Rule 33 of our Rules Civil Procedure that suits against corporate shall be in its name. A *5 party by joining is made suit to a the commissioners and parties. having other officialsof the as Petitioner failed county party, subject to make the suit is his dismissal at the any time. it Under these circumstances cannot said that refusing grant trial court its discretion in abused the tem- porary injunction. 102 the may any
Since amend at time and make party, questions which should other we consider number of controversy proceeding. have raised in amount this The expense small, litigants and may thе saved the and thus be delay appeal. of another argues
Respondent that of order the Commissioners approving aside or respondent’s not been set Court claim has from, appealed adjudicata and res the matter. We stands as acting ju agree. do not An order of the Commissioners dicially judgment on a matter its discretion within subject record attack and is not collateral which may only appeal in a action for which on direct be reviewed 442, Gaines, County 163 purpose. v. 139 Texas Yoakum to en and And a suit authorities cited therein. S.W. join than the enforcement court other brought regarded generally one in as a which action is Rea, judgment. collateral 220, on 106 attack See Cotton v. 2; rule latter does Tex. Jur. Sec. always apply, however, proceeding in equitable dis to an enjoin trict an order of com court to actiоn authorized court. missioner’s
Art. Sec. of our in 1891 to Constitution amended give super- “appellate jurisdiction general the district court and visory Court, control over with Commissioners such regulations exceptions may prescribed and under as such language Substantially law.” the same is found in Art. Legislature рrescribed Texas Rev. has Civ. Stat. 1925. no procedure exceptions, appealing and has established relating orders commissioners court certain matters. 7880-18, not, It has See Art. Ann. Tex. Civ. Stat. Vernon’s however, procedure by statute established the method and invoking appellate jurisdiction supervisory and control of all court, the district court over actions of the commissioners suggested appropriate has been method of re- Certiorari Farmer, App. 39, view. McDonald Civ. See writ; Nacogdoches Typewriter 555 no Underwood Co. App., 37 2d 278 no writ. Texas Civ. equitable proceeding
It settled a direct is well district court, purpose is to set and effect which review or aside court, power comes within the an order of commissioners statutory granted provisions by the constitutional above order, to, has effect of a direct attack the prоcedure referred Legislature prescribed at least where
108 appealing Hale, such Texas from order. Haverbekken v. 109 1162; Phillips 204 Dis- J. R. Investment Co. v. Road App., trict No. 18 of Limestone Texas Civ. 172 S.W. powers equity present 2d 707 writ refused. The suit invokes payment prevent by of the district court to allegеd illegal. opin- purpose funds for It is our direct, ion that rather than a the same should be treated as a collateral, upon attack the order of the commissioners authorizing payment such made. to be illegal proposed payment
Petitioner contends that be by it cause exceeds amount Art. authorized amended, applies Rev. Civ. Stat. which Coun Nueces ty. provisions The relevant of this statute are as follows: “* * * * * * Attorney, appoint District may exceed- eight ing Attorneys, Assistant District two of whom shall re- a salary Fifty ceive not to exceed Four Two Thousand Hundred ($4,250.00) рer each; Dollars annum of whom shall re- two a salary ceive Thirty-six not to ($3,600.00) exceed Hundred per each; Dollars salary annum four of whom shall receive a exceed ($3,000.00) per Three Thousand Dollars annum * * * * * * assistants, each. paid The salaries of all shall be such monthly by general by uрon said counties warrant drawn * * funds thereof. “per The words annum” as used in to the statute refer this period during held, employment which the or office payment. Thomas, Ky. 786, to the time See Talbott v. 286 Legislature provided 1. has thus salaries employees appointed of the officers and under the statute stipulated year shall not exceed a amount for each of service. separate requires paid monthly. A sentence that the salaries provisions clearly contemplate monthly compensation These equal salary, an amount of an one-twelfth authorized annual ceiling applicable by which cannot exceed the established precludes payment statute. It is our that the statute applicable stipulated than amount of more one-twelfth of employment therein for each month the office is held. Respondent’s aрpointment was on December 13th made expiration eighteen days term
terminated later Attorney appointed him. of the District Sparks, Terrell v. who See held Since month, appears position less than a it $600.00 maxi- exceeds the ordered Commissioners Court statute, mum there- amount authorized and the order is fore void. *7 argues
Respondent trial in court’s no event would grant temporary refusal to constitute an abuse can, a discretion, after because is solvent and merits, any compelled repay trial he was on the be amount might merit not entitled contention have somе to receive. This money after it if could institute suit to recover brings paid. taxpayer has an to restrain been a action When illegal money by expenditure the commissioners tax subject court, matter he sues for and his interest in the himself money support But sufficient to action. when the belongs spent, recovery already been an action for the alone, county private and cannot be citizen. maintained money Davis, If the Hoffman 94. paid might suit in the and the institute officials who so, recovery there will name of the for its elect not do legality payment. It judicial no of the be determination of character, necessarily taxpayer’s follows that in suit of this against person pay to whom the the fact that a collected, be should not considered ment will made could be be determining enjoin payment. whether to Appeals judgment of the is affirmed. Court of Civil sitting.
Associate Justice McCall not delivered, Opinion 1956. June dissenting. Griffin, joined by Mr. Justice Culver Justice Stat., agree I do not that Art. Vernon’s Ann. Civ. paying prohibits the an Commissioners from assistant engaged attorney appointed temporary district duty for and on greater thirty days, monthly aat than not to exceed rate regularly permits employed yearly aon the statute for one basis. investigation grand jury an of certain decided that attorney at the re-
county affairs made should be grand Attorney appointed an as- quest jury District Court, ap- approval sistant with Commissioners being thirty days period and fоr pointment limited to expected compensation be not to exceed It $600.00. normally period month of a would employment yearly monthly employment on a rate for more than not exceed its my did In the Commissioners Court basis. authority enjoined making from the order and should per- paying compensation the services have where formed.
Opinion June 1956. delivered
Rehearing July 1956. overruled Payne Maudy King Laudine Et Al Elmo Et Al. Collier No. A-5815. Decided July 11, Rehearing overruled July 25, 1956. *8 (292 331) S.W. 2d Series