West v. Burke

| Tex. | Oct 15, 1883

Opinion by

Delaney, J.

The act of August 23rd, 1876, Sec. 6 (Laws 1876 p 286) aftter fixing the fees of the county judge for certain services, provides that he shall receive “for presiding over the county commissioners court, ordering elections and making returns and transacting all other county business not otherwise provided for, such sum as shall be allowed by the county commissioners court.” In February 1877 the commissioners court of Dallas county made an order allowing to appellant as county judge, $900. per annum for the services above mentioned. On the first day of December following, three of the county commissioners assembled at a special term, revoked the preceeding order by an order entered of record. Appellant complains of this second order, and his counsel have argued here that it is invalid : 1st, because the commissioners’ court having once made the order, could not revoke it during appellants term of office; 2nd, because the three commissioners who made the order of revoking, were not a court within the meaning of the law, and henoe the latter order is null and void. We prefer not to determine the first of these questions, as it *336is one of some interest, and its determination is not necessary to the decission of the case. The constitution (Art. 5, Sec. 18,) provided that the four commissioners, with the county judge as presiding officer, shall constitute the county commissioner’s court. (Laws 1876, p. 53, Sec. 12), provides that any three members of the court, including the county judge, shall constitute a quorum.

From Sec, 11 of the act we conclude that the court may meet and transact business in the absence of the couty judge, and in that event some other member of the court may preside. (See also R. S. 1510.) Section 13 provides that the judge or any three of the commissioners may call special terms; but there is no intimation in the law, that in the absence of the judge, any member of the commissioners, less than the whole, shall constitute a quorum for the transaction of business. We conclude that the three members who made the order of December 1st, 1877, were not a court within the meaning of the statute, and that the order was void. Our opinion is that the judgment should be reversed, and the cause remanded.

The report of the commissioners of appeals examined, their opinion adopted and the judgment reversed and the cause remanded.

WILLIE, C. J.