Pecos & N. T. R. Co. v. Suitor (Tex.)....1034 People's Guaranty State Bank, Denison Bank & Trust Co. v. (Tex. Civ. App.)... 561 People's Guaranty State Bank, Dennison Bank & Trust Co. v. (Tex. Civ. App.).. 562 Peper v. Bell (Mo. App.). Roberson v. Terrell (Tex. Civ. App.). Rodriguez, Vaello v. (Tex. Civ. App.). Robbins, Cameron v. (Ark.) 173 813 713 96 27 920 206 924 5 668 .1082 206 Peper, Linstroth v. (Mo. App.). Perdue, Butler v. (Tex. Civ. App.). 431 .1119 Perle, Dempsey v. (Mo. App.)... 425 Peterson, Henson v. (Tex. Civ. App.). 126 Rosa v. State (Tex. Cr. App.). 1056 Phillips v. Murphy (Ky.). 250 Ross, Jones v. (Ark.). 198 Pickens v. State (Tex. Cr. App.) 755 Roth v. Loftin (Tex. Civ. App.). 89 Pierce v. Foreign Mission Board of Southern Baptist Convention (Tex. Civ. App.) Pierce v. Pierce (Tex. Civ. App.). Planters' Gin Co., Strange v. (Ark.).. Plapao Laboratories, Harmon Rudolph, Meador v. (Tex. Civ. App.). 520 140 Rugen v. Vaughan (Ark.). 205 144 188 Rural Special School Dist. No. 30 v. Pine Bluff (Ark.). 661 V. (Mo. Russell v. State (Tex. Cr. App.). .1049 App.) 701 .... Russell v. State (Tex. Cr. App.). .1051 Rutherford v. Deaver (Tex. Civ. App.). 31 859 499 App.) Ryan, Frank Hart Realty Co. v. (Mo. 412 Smith, Archenhold Co. v. (Tex. Civ.App.).. 808 33 943 State, Swim v. (Tex. Cr. App.). 761 ... 27 State v. Trotter (Tenn.).... 230 602 State, Venn v. (Tex. Cr. App.). .1060 599 State, Wallin v. (Ark.). 170 .1048 870 423 State, Washington v. (Tex. Cr. App.). .1043 .1065 750 657 State, Woodard v. (Tex. Cr. App.). 760 State, Young v. (Tex. Cr. App.). 505 Sorrels v. Marble (Ark.) 671 State, Young v. (Tex. Cr. App.). 754 South Covington & C. R. Co. v. Goldsmith State, Young v. (Tex. Cr. App.). .1063 (Ky.) 286 Southern Pac. Co. v. Stevenson (Tex. Civ. State Bank of Commerce v. Cox (Tex. Civ. 82 App.) 151 Southern Rice Growers' Ass'n, D. S. Cage & Co. v. (Tex.Civ.App.).. State ex rel. Abington v. Reynolds (Mo.) 334 78 (Mo.) 337 ... Southern Surety Co. v. Lucero (Tex. Civ. Southern Union Life Ins. Co., Mitchell v. State ex rel. Conway v. Nolte (Mo.). 862 (Tex. Civ. App.).. 586 Southwestern Gas & Electric Co. v. Raines State ex rel. Jones v. Howe Scale Co. of 359 Stanley, McCallister's Adm'r v. (Ky.).. State, Alexander v. (Tex. Cr. App.). .1047 237 (Ky.) 460 175 845 Stipetich v. Security Stove & Mfg. Co. (Mo. 964 5 188 752 Straus Cigar Co. v. Bon Marche (Tenn.) 219 759 Struwe, American Automobile Ins. Co. v. .1068 (Tex. Civ. App.)... 750 Suitor, Pecos & N. T. R. Co. v. (Tex.)....1034 762 Sullivan v. Hines (Mo. App.).. 534 .1048 406 Sunshine Oil Co., Hutchinson v. (Mo. App.) 951 366 Sweet Springs Milling Co. v. Gentry, Bu771 chanan & Co. (Ark.). 493 Swim v. State (Tex. Cr. App.) 380 761 765 Tackett v. Green (Ky.)... 468 864 Tankersley v. Norton (Ark.). 660 Tatum v. Fulton (Tex. Civ. App.) .1088 361 Taylor, Bodine v. (Ark.). 374 State, Garrett v. (Tex. Cr. App.). .1064 .1047 .1062 Taylor v. Georgia State Sav. Ass'n (Ark.) 180 821 494 Tennessee Supply Co. v. Bina Young & 506 Son (Tenn.). 225 .1058 .1054 Terminal R. Ass'n of St. Louis, Harris v. (Mo. App.).. 686 State, Hawkins v. (Tenn.). 397 Terrell, King v. (Tex. Civ. App.). 42 197 Texarkana & Ft. Smith R. Co., Brass V. .1052 (Tex. Com. App.). .1040 App.) 1048 Texas Electric R. Co. v. Price (Tex. Civ. 369 .1092 State, Johnson v. (Tex. Cr. App.).. 759 496 Texas Employers' Ins. Ass'n v. Downing (Tex. Civ. App.). 112 State, Jones v. (Tex. Cr. App.).. 759 Texas Life Ins. Co., Slaughter v. (Tex. Civ. .1109 764 State, Lee v., two cases (Tex. Cr. App.)..1070 Texas & N. O. R. Co. v. Houston Undertaking Co. (Tex. Civ. App.).. 84 233 State, Mercardo v. (Tex. Cr. App.) State, Pickens v. (Tex. Cr. App.). 491 Texas & P. R. Co. v. Shaw (Tex. Civ. 814 366 Thompson v. United Rys. Co. of St. Louis .1059 (Mo. App.) 343 .1070 Townley Mfg. Co., Smith v. (Mo.). 870 176 Traders' Nat. Bank v. Hermer (Mo. App.) 937 755 Travelers' Ins. Co., Gates v. (Mo. App.).. 927 499 Travelers' Ins. Co. of Hartford, Conn., v. .1044 Scott (Tex. Civ. App.). .1056 Trochta v. Missouri, K. & T. R. Co. of .1049 Texas (Tex. Com. App.).. .1038 .1051 Trotter, State v. (Tenn.). 230 53 THE SOUTHWESTERN REPORTER VOLUME 218 J. I. CASE THRESHING MACH. CO. v. CAMP COUNTY. (No. 2188.) (Court of Civil Appeals of Texas. Texarkana. Dec. 31, 1919. Rehearing Denied Feb. 12, 1920.) 1. COUNTIES 165-WARRANT A "DEBT" REQUIRING PROVISION FOR LEVYING AND COLLECTING OF TAX FOR PAYMENT THEREOF. A warrant drawn on the county treasurer in 1913 payable to the drawee in 1916, given for the purchase price of a traction engine, came within the definition of a debt under Const. art. 11, § 7, forbidding the incurring of debt unless provision is made at the time of executing the warrant for levying and collecting sufficient tax to pay the same. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Debt.] 2. COUNTIES 170(3) PETITION INSUFFICIENT TO SHOW PROVISION MADE FOR COLLECTING TAXES FOR DEBT SUED FOR. - Petition in an action on a warrant given in 1913, and payable in 1916, as consideration for a traction engine, held not to sufficiently aver that at the time of creating the debt provision had been made for levying and collecting a sufficient tax to pay the same, although it was alleged that there were sufficient funds accumulated to satisfy the warrant. 3. EVIDENCE 48-JUDICIALLY KNOWN THAT FUNDS RAISED FOR ROAD AND BRIDGE FUND MAY BE USED IN DEFRAYING CURRENT EXPENSES. The court knows judicially that funds raised from taxes for the road and bridge fund of the county may be used in defraying current expenses for improving and maintaining the public highways unless appropriate orders have been made setting apart all or a portion of it for some other purpose. debt being created or contemplated, it not being sufficient to provide for raising a fund which may or may not be used lawfully for its payment, a fund being necessary which cannot lawfully be diverted for any other purpose by a succeeding commissioners' court. 5. COUNTIES 165-PROVISION FOR PAYMENT OF DEBTS MUST BE MADE PRIOR TO OR AT TIME OF CREATION. Under Const. art. 11, § 7, providing that no debts shall ever be incurred by a county unless provision is made at the time of creating the same for levying and collecting a sufficient tax to pay it, it is not enough to provide funds for the payment of the debt after it has been created, as nothing the commissioners' court can do after creating the debt, without so providing, can validate it. "March 1st, 1916, Pay to the order of the J. I. Case Threshing Machine Company the sum of nine hundred dollars, with interest from this date at the rate of 6% per annum, out of the road and bridge fund of Camp county, Texas, being the amount allowed by the commissioners' court of said county at its August term, 1913, for one J. I. Case gas traction engine and two No. 1 Perfection road graders, this day purchased from the J. I. Case Threshing Machine Company. To make provision for the levy and collection of taxes prior to or at the time of creating a debt as provided by Const. art. 11, § 7, when this has not been done by law, requires some affirmative action on the part of the county au- "It is agreed and understood that the title thorities with special reference to the particular to the above-described property is to remain in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 218 S.W.-1 the said J. I. Case Co. until all installments on [ county's obligations herein sued upon, insame are paid. "Minute Book 5, page 252. "Witness our hands and the seal of this court in Pittsburg, Texas, this 13th day of August, 1913. [Signed] G. W. Keeling, County Judge, Camp Co., Texas. [Signed] Joe R. Hooton, County Clerk. [Seal.]" The second warrant is identical in terms, except that it is payable March 1, 1917. In its original petition the appellant alleged in the usual form the execution and delivery of these warrants to it for a valuable consideration received by the county, and by appropriate averments the liability of the county by reason thereof, the maturity of the warrants, and the failure and refusal of the county to pay them. A general demurrer was interposed by the appellee to the petition, and sustained by the court. Thereupon the appellant filed a trial amendment, in which it alleged that prior to the purchase by the defendant of the road machinery for which the warrants sued upon were given Camp county had, through its proper authorities, levied a tax for road and bridge purposes of 15 cents upon each $100 of taxable property within its limits, and thereafter, but before the purchase of said machinery and for the purpose of supplementing the road and bridge fund of the county, an additional tax of 15 cents on the $100 of taxable property was legally voted by the taxpayers of Camp county at an election held for the purpose, and that the county's proper authorities were thereby not only authorized, but required, to annually levy such additional special tax; that Camp county issued road warrants, being county obligations, to obtain funds for the building and improving the county roads to the amount of $26,000, and for the purpose of paying the interest thereon and to create a sinking fund the county's proper authorities levied, for the years 1913 to 1921, inclusive, the regular 15 cents upon the $100 of taxable property authorized under the general laws of Texas, and specially set aside such tax to pay its said road warrants, and by proper orders provided that such further sum as might be necessary to pay said warrants was specially set aside also out of the special additional tax voted by the taxpayers. It was averred that thereby sufficient funds were provided, as required by law, to pay the interest on all such warrants and also upon like warrants which might lawfully be issued, including those herein sued upon, and to create a sinking fund to pay the principal thereof at maturity; that, if the special tax authorized and required by the vote of the taxpayers as aforesaid was not actually levied by the county authorities, the levy thereof was merely a ministerial act to be performed by them; that in law a fund was thus legally created and provided sufficient for the payment of the terest and principal, in accordance with their terms and legal effect. It was further alleged that out of the moneys thus raised by the taxpaying voters of Camp county for the purposes aforesaid a fund was created and was on hand at the respective maturity dates of the warrants sued upon sufficient for their payment. It was also alleged that the warrants were presented and registered by the county treasurer, and at their maturity presented for payment, and payment refused by the treasurer by direction of the county judge and the commissioners' court of Camp county. A general demurrer in the form of a special exception was sustained to this trial amendment, and upon the refusal of the appellant to again amend the suit was dismissed. [1-5] The petition was attacked as defective because it failed to allege that the tax of 15 cents on the $100 valuation was for the payment of the interest or the principal of this specific debt. Section 7 of article 11 of the Constitution, among things, provides: "But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent. as a sinking fund.” While the warrants here involved were orders upon the treasurer to be paid out of a specific fund, the dates for their payment made them a charge upon the future revenues of the county. Hence they come within the definition of a debt which must be provided for as required by the Constitution. Rogers National Bank v. Marion County, 181 S. W. 884. The question then is: Does the petition allege a compliance with the constitutional requirements in making provision for levying and collecting the necessary taxes? When analyzed, the appellant's petition avers, in substance, the following facts: Camp county had a legal right to collect 15 cents on the $100 valuation of property under the general laws for building and improving its public roads. For the purpose of supplementing funds that might be raised from that source, the taxpayers, at an election held for that purpose, had authorized the levy and collection of an additional 15 cents on the $100 valuation of property. In order to obtain funds for building and improving its public roads, Camp county had issued road warrants to the amount of $26,000, and in |