action of any business, except that of levying a county tax.'

99

being absent) and that the account of petitioners was at said session, after being duly considered and audited, allowed, and the is- Counsel for appellants have discussed, with suance of the warrants of the county for the much learning and force, the question as to amount, $6,811.02, directed and authorized. the proper construction of the articles above, It is shown that the contract between peti- particularly article 2238, and we agree in the tioners and the county provides for the sign- main with the views expressed, and would ing of such warrants by the county judge and construe the statute as appellants contend county clerk, and that said contract in con- it should be, if we regarded it as an open nection with the order provides for all other question. When one looks at article 2238, details with reference to the amounts, due standing alone, there can be no doubt that dates, rate of interest, etc., of such warrants, it is somewhat ambiguous, but when considand that petitioners have requested and de- ered in connection with the preceding article manded the execution and delivery thereof, we think the meaning and intention reasonbut that the said Dies, county judge, and ably clear. Prior to the enactment of these Bevil, county clerk, have refused and still provisious, the commissioners' courts in each refuse to comply therewith. The other mem- county of the state had been created by the bers of the commissioners' court of Hardin Constitution to be composed of four commiscounty, J. N. Newman, G. A. Anderson, J. L. sioners and the county judge (Const. art. Flowers, and J. S. Jackson, are made parties 5, § 18), and the county judge was made defendant, also the county of Hardin, as a the presiding officer. No provision was made body corporate, and the petition contains a in the Constitution as to what number of prayer for certain other relief, with allega- members, less than the whole, might contions pertinent thereto, which will be noticed stitute a quorum for the transaction of busiand considered later on in this opinion. The ness, and it would seem, in the absence of defendants answered by general demurrer, this, the presence of all members would be and numerous special pleas and denials. The necessary. To remedy this no doubt, was justness and correctness of the claim of peti- the matter uppermost in mind when the stattioners against Hardin county was stoutly utory provisions before mentioned were enactdenied and contested, and it was shown that ed. There is no provision, other than article at a session of the commissioners' court, with 2238, expressly saying what number of memall members present, subsequent to the one bers of the court may constitute a quorum, referred to in the petition, the former order and it is clearly contemplated by the precedallowing the account was by unanimous vote ing article, 2237, that the county judge may rescinded and the account allowed for a much not always be present and that the court less amount, which action it seems, though, may transact business and enter valid orders was taken without notice to Cobb & Gregory, in his absence. The opening clause of article but it is not necessary to notice these defen- 2238, "Any three members of said court" sive pleadings in detail. The general demur- would clearly include the county judge who rer to the petition as sustained by the trial is already mentioned as a member of the judge, and petitioners having refused to court, but confusion is injected by the unceramend, the suit was ordered dismissed, from tain nature of the clause immediately folwhich judgment an appeal has been per- lowing, "including the county judge." fected. think this should be treated as an explanaThe first and main contention of appel-tory nonrestrictive clause, or a mere loose lants is that any three members of a county repetition of what had already been implied. commissioners' court, one of which three It appears to have been the purpose on the may or may not be the county judge, constitutes a quorum for the transaction of any business except that of levying a tax, and that therefore the order entered on August 7, 1916, allowing the claim against Hardin county and ordering the issuance of warrants, is a valid and binding order, and must be observed. This calls for a construction of articles 2237 and 2238, of our statutes, relating to the organization of county commissioners' courts, which read as follows:

We

part of the draftsman to again repeat or emphasize the fact that the county judge is a member of the court just as much so as any one of the commissioners, and may be counted as one of the "any three members" necessary to constitute a quorum. However this may be, we have before us the case of West v. Burke, reported in 60 Tex. 51, wherein the court construes sections 11 and 12 of the act of 1876 (Acts 15th Leg. c. 55) the language of which is now embodied in articles 2237 and 2238, before quoted, with only slight and immaterial change of verbiage, as meaning that three members of a commissioners' court, one of whom must be the county judge, may constitute a quorum, and in "Art. 2238. (1534) (1511) Three Members the absence of the county judge the presence Constitute a Quorum, except, etc.-Any three members of the said court, including the county of all four commissioners is necessary to a judge, shall constitute a quorum for the trans- quorum. The opinion is short, and relates

“Art. 2237. (1533) (1510) Court Composed of Whom and the Presiding Officer Thereof.-The said commissioners, together with the county judge, shall compose the commissioners' court, and the county judge, when present, shall be the presiding officer of said court."

to only this one point, and we think it well, ness is no isolated matter, but is a questo quote what is there said:

"The Constitution (article 5, § 18) provides that the four commissioners, with the county judge as presiding officer, shall constitute the county commissioners' court. The act to organize the commissioners' court (Laws 1876, p. 53, § 12), provides that any three members of the court, including the county judge, shall constitute a quorum. From section 11 of the act we conclude that this court may meet and transact business in the absence of the county judge, and in that event some other member of the court may preside. See, also, R. S. art. 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 number 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 1, 1877, were not a court within the meaning of the statute, and that the order was void."

tion of very general interest and almost daily concern throughout the state. These articles have been permitted to stand unchanged, with the construction placed upon them in West v. Burke, supra, for 34 years, during which time there have been some 18 regular sessions of the Legislature, not to mention numerous special sessions, and we must assume that this is the meaning intended for them. In the case of Rowe v. Spencer, 70 Tex. 78, 8 S. W. 60, the Supreme Court goes so far as to hold, referring to one of its prior opinions dealing with a statute involved in that case, that:

"A session of the Legislature having occurred since the decision was made, without any change in these articles being enacted, we must infer that this construction is that which the Legislature intends they shall receive in the future."

[1] The opinion is by Judge Delaney of Before leaving the point, will say that we the Commission of Appeals, and is shown have considered the case of Racer v. State to have been approved and adopted by the (Tex. Cr.) 73 S. W. 968. The opinion is by Supreme Court on June 19, 1883. Comment- Judge Davidson, rendered in 1903. The ing on this case, counsel for appellants refer order of the commissioners' court there reto the fact that the case was decided by the ferred to was entered with four commissionold Commission of Appeals about 34 years ers present, the county judge being absent, ago, and that while it is true it appears to and was upheld as valid. It will be seen have been approved by the Supreme Court, that the result of the ruling is not necessathey express serious doubts "if the manner rily in conflict with that in West v. Burke, in which the decision was arrived at was and the case was not referred to; but the investigated very closely by the Supreme language of the opinion makes it rather Court at the time," etc., and urge that the clear the court was of the opinion that any conclusion as to construction of the statute three members of the commissioners' court, being against the very obvious meaning there- one of whom might or might not be the counof, this court should disregard it. Although ty judge, was sufficient, for a quorum. we believe that the conclusion there reached may be that the rule as indicated by the as to the construction to be placed on the language of this decision will be followed statute in question was incorrect at the time, whenever the question comes up in a crimistill we cannot see our way clear to under-nal proceeding, but that is a matter outside take to upturn that construction now.

[2] The opinions of the Commission of Appeals, when approved and adopted by the Supreme Court, as was authorized by the law existing at the time of this opinion, became as authoritative as the decisions of the Supreme Court proper. Wooters v. Hollingsworth, 58 Tex. 371. But further than this, it must be borne in mind that since this construction has been placed on this statute, there have been two revisions of the laws of this state, in 1895 and again in 1911, in both of which the provisions in question have been re-enacted and brought forward with no material change. It is generally held, under such circumstances, that it will be conclusively inferred that the lawmaking body intended that the same construction should be placed on the language of the statute in future. G., C. & S. F. Ry. Co. v. Ft. W. & N. O. Ry. Co., 68 Tex. 98, 2 S. W. 199, 3 S. W. 564; Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Scott v. State, 6 Tex. Civ. App. 345, 25 S. W. 338; 36 Cyc. pp. 1153, 1154.

The question as to what number of members of a commissioners' court should con

of our province.

It

It follows from what has been said that we do not think the petition showed good grounds for a mandamus against Dies, as county judge, and Bevil, as county clerk.

There is a prayer for relief, in the alternative, and the allegations of the petition in that connection will be stated very briefly, as follows: That the petitioners, on or about December 13, 1915, made a contract with Hardin county for the grading and constructing of certain roads in said county, and in accordance with said contract have done certain work, as described and set forth in the petition, for which there is a balance due them of $6,811.02. That petitioners have from time to time for several months past presented their claim to the commissioners' court of Hardin county while said court was in regular or special session, and have asked and demanded the settlement of said account; that at all times three commissioners and members of the court, namely, J. N. Newman, G. A. Anderson, and J. S. Jackson, have been in favor of allowing and paying the account, and have been ready and

[3] We think the conduct upon the part of the commissioners' court of Hardin county with reference to the claim of petitioners against the county, according to the facts set forth in the petition, if true, constitutes such neglect or refusal to audit and allow the claim as is contemplated by the above article and operates to give to Cobb & Gregory the right to institute an ordinary suit against the county for the amount alleged to be due. Williams v. Bowie County, 58 Tex. Civ. App. 116, 123 S. W. 199; Smith v. Wise Co., 187 S. W. 705.

[4] The parties, therefore, having another plain and adequate remedy, will not be permitted to resort to a mandamus. Hogue v. Baker, 92 Tex. 58, 45 S. W. 1004; R. C. L. vol. 18, Mandamus, pars. 44, 47.

county judge, and J. L. Flowers, commissioner, for the purpose of evading and preventing action by the court on said account, have constantly and steadfastly refused to remain present at any session of said court long enough to enable the petitioners to present their claim and secure action thereon. It is set forth that at the date of the purported order of the commissioners' court, before referred to, and immediately preceding the entry thereof, and while the court with all members thereof present, was in session, the said claim of petitioners was presented, and that Dies, county judge, and Flowers, commissioner, withdrew from the courtroom and refused to attend the court, and that they will so refuse to attend and remain present at any session of said court in future when the claim of petitioners against the county is presented. It is then asked in the event the relief first prayed for is denied: "That the court issue at once its writ of mandamus, directing, ordering, and requiring said Chief Justice HIGHTOWER, and AssociW. W. Dies as county judge, and J. L. Flowers as commissioner, and each and all the members ate Justice KING, being disqualified in this of the commissioners' court of Hardin county, case, the Governor appointed George ChilTex., herein named, at the next first special ton, Esq., and A. L. Calhoun, Esq., of the session or its next regular session, to remain Beaumont bar, to sit in the case as special present and keep the court open and give plaintiff and his counsel an opportunity to present plaintiffs' claim as set forth and to give the members of said court an opportunity to make a motion and secure a second to allow said claim or reject it, and that the said W. W. Dies, as judge, be required to place all motions that may be made and seconded concerning said matter either in favor of or against it, before the court, so that the members thereof may have an opportunity to vote yea or nay."

With reference to the question here arising, appellants in their brief present the proposition that:

"Any party having a claim against any county is entitled to have a legal quorum of the commissioners' court of said county, either allow or reject the same, and to enable the party to secure said right, a writ of mandamus should be issued, requiring and compelling the members of the commissioners' court to remain present at a special or regular session for a reasonable length of time until such party can present to them his claim and secure a vote upon it."

We conclude that the trial court did not err in sustaining the demurrer to the petition, and the judgment is therefore affirmed.

Justices.

WHITE et al. v. TEXAS MOTORCAR &
SUPPLY CO. et al. (No. 5995.)

(Court of Civil Appeals of Texas. San Antonio.
April 10, 1918. Rehearing Denied
May 15, 1918.)

In an action for damages for refusal to deliver possession of automobiles plaintiff had stored in defendant's garage, a writ of sequestration, issued before petition was amended so as to sue for possession, was properly quashed; Rev. St. 1911, arts. 7094, 7095, specifying cases in which property will be sequestered, authorizing no writ in an action merely for damages. 2. SEQUESTRATION 12 JURISDICTION NATURE OF ACTION.

does not confer jurisdiction to issue the writ, and amendment of petition after issuance of writ does not cure defect.

Since Rev. St. 1911, art. 7096, requires the filing of a petition before a writ of sequestraCounsel for appellants have not cited any tion can issue, where the petition seeks damages authority under this proposition, and the alone and not possession, the nature of the action is to be determined thereby, and an averpoint was not mentioned in the oral argument in the affidavit that possession was sought ment at the submission of this case, and we naturally assume that they do not put any great faith in the right to such an order, under the facts here shown. We do not doubt that the writ of mandamus may be availed of under proper conditions to require a court to act upon matters before it, but we do not find it necessary to go into the question, as this phase of the matter can be disposed of upon another ground. Article 1366, Rev. Stat. 1911, provides that:

"No county shall be sued unless the claims 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."

3. SEQUESTRATION 12-LANGUAGE OF AFFIDAVIT COMPLIANCE WITH STATUTE.

The words, "will make use of its possession of said property to injure said property," in plaintiff's affidavit for writ of sequestration, were a substantial compliance with Rev. St. 1911, art. 7094, providing that the writ may issue where plaintiff fears that defendant "will injure such property.'

4. APPEAL AND ERROR 1043(1) — SEQUESTRATION-HARMLESS ERror.

Where the court properly quashed the writ of sequestration on the ground that there was no jurisdictional power to issue the writ, its ruling in erroneously sustaining exceptions to sufficiency of plaintiff's affidavit for writ was harmless.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

10. BAILMENT 18(2) - CHANGE OF POSSES-tition and for judgment in the sum of $3,000

also alleged the proceedings with regard to the, storage of said automobiles, and had a simisequestration and replevy of the automobiles, lar account of his own. He asserted a lien and that they had depreciated in value to the thereon for such accounts, and alleged that extent of $1,450 each. He prayed for judg- the automobiles were not of value sufficient ment for the possession of the automobiles, to pay his debt, and prayed for foreclosure for his special damages against defendant and judgment against plaintiff and the Weland the sureties on the replevin bond, and in ders. The various parties filed supplemental the event the automobiles could not be de- pleadings. The court sustained the motions livered, for judgment against defendant and to quash the sequestration, and instructed the sureties for the value thereof and his the jury to return a verdict in favor of plainspecial damages, interest and costs. On tiff against defendants Welder individually October 23, 1916, defendant filed an amended and as trustees of the Texas Motorcar & Supmotion to quash the sequestration proceed- ply Company, and the intervener, Saunders, ings. On June 15, 1917, plaintiff filed a third for the possession of the automobiles, subject amended original petition, making R. H. to the lien of Saunders for storage; also for Welder, J. J. Welder, Jr., and W. A. Saun- Saunders in the sum of $200.00 with lien on ders parties. In addition to allegations the cars to secure the amount; also in favor previously made he averred that the Texas of defendants Welder individually and as Motorcar & Supply Company, on May 4, trustees against plaintiff and intervener on 1915, filed its voluntary certificate of dissolu- their claim for money judgment; also in tion, at which time R. H. Welder and J. J. favor of plaintiff against the claim of the Welder, Jr., were sole directors, officials, and intervener. The verdict was returned, and stockholders thereof; that R. H. Welder at judgment entered in accordance therewith. that time was indebted to the corporation in Plaintiff and intervener, Saunders, perfected the sum of $5,250, and J. J. Welder in the sum appeals, but Saunders abandoned his appeal, of $500, said amounts being due for stock and filed briefs, replying to the brief of plainsubscribed for, except one share, which was tiff. owned by J. J. Welder; that at the time of its dissolution the corporation had assets of the value of more than $10,000 in excess of its liabilities, which were converted by R. H. Welder to his use and benefit; that said R. H. Welder and J. J. Welder, being sole stockholders and directors, upon the dissolution of the corporation became and were trustees for the creditors thereof, and as such trustees succeeded the corporation, and after its dissolution as individuals, unlawfully retained and held, and still unlawfully retain and hold, the possession of said automobiles, to plaintiff's damage as thereinbore set forth. He pleaded that Saunders was asserting a claim for storage on the cars and a lien to secure such claim; that in truth Saunders had no claim or lien, but if it should be held that he did have, then that same was incurred by Texas Motorcar & Supply Company and defendants R. H. and J. J. Welder, and plaintiff is not liable therefor, but if it should [3, 4] We find ourselves unable to sustain be held that Saunders has a claim against the ruling of the court on the additional plaintiff or a lien on the automobiles, then ground urged in appellees' second counter that plaintiff have judgment over against proposition, namely, that the language, "will the Welders for such amount as should be make use of its possession of said property decreed to be paid by plaintiff established to injure said property," did not constitute a as a lien on the automobiles. Defendants substantial compliance with the statute relatWelder filed a motion to quash the sequestra- ing to sequestration of personal property, tion proceedings on the same grounds urged which uses the language, "will injure such by Texas Motorcar & Supply Company. Sepa- property." As the court was correct in quashrate answers were filed, containing general ing the sequestration, he did not err in susand special exceptions, general denial, and taining exceptions to the pleadings of plainspecial answers. R. H. Welder, however, tiff seeking to recover on the replevy bond. pleaded that the corporation was indebted to The propositions urged under appellants' him at the time it was dissolved. Saunders, so-called third assignment of error raise the by petition in intervention, claimed he had issues: First, whether the court erred in purchased the garage from one Wood, who refusing to instruct a judgment against the in turn had purchased it from Texas Motor- corporation; second, whether it erred in car & Supply Company, and that he had ac- instructing a verdict in favor of R. H. Welder quired from Wood an unpaid account for and J. J. Welder.

[1, 2] It is contended that the court erred in quashing the writ of sequestration. At the time the writ was issued the suit was one for damages, and not for possession of personal property. Such a suit will not support a writ of sequestration. R. S. arts. 7094-7095; Houston v. Booth, 107 S. W. 887. The affidavit for the writ stated that the suit was for the automobiles, but as article 7096 provides that no writ of sequestration shall issue unless a petition shall have been first filed, if the suit is in the district or county court, it appears that such petition must determine the nature of the suit, and not the affidavit for the writ. As the suit was not one for the possession of property at the time the writ was issued, there was no jurisdictional power to issue the writ, and a subsequent amendment of the petition cannot, aid the attachment proceedings. We conclude there was no error in quashing the sequestration proceedings.