Johnson v. Campbell

39 Tex. 83

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

These cases are submitted together and present one and the same question for decision.

The points made by the appellant are, first, that mandamus will not lie to compel him to pay money out of the county treasury; and second, that the act authorizing the Governor to appoint special policemen and provide for their payment is unconstitutional, because the object of the act is not embraced in its title, the tax is not equal and uniform throughout the State, and that under the provisions of the act a citizen of the State may be deprived of his property without due course of law.

And it is also argued that, conceding the constitutionality of the law, a demurrer to the return should not have been sustained, because the return alleges that the relator’s claims were obtained by fraud.

In support of the first objection the appellant refers to the Houston Tap and Brazoria Railway Company v. Randolph, 24 Texas, 317.

This case decides no more than was decided by this court in. the Great Northern R. R. Co. v. Kuechler. Where the act to be done is ministerial in its character, and the relator shows by his petition that he has a clear right to, and that it is plainly the duty of the officer proceeded against .to perform the act demanded, mandamus will lie to compel the performance of the act.

The duties of the county treasurer are ministerial ;• they are plain and specific. He has no judicial authority to determine the validity of a warrant or voucher presented for payment.

This authority is vested elsewhere.

We do not think he has any discretion to resist the payment of a voucher when it has been properly allowed by the county court and presented for payment, nor do we think in this case he has any authority to dispute the vouchers in question. The act of May 2, 1871, makes the adjudication of the Chief of Police on claims of this kind final.

The county treasurer has his remedy if a warrant is presented which he considers of doubtful legality, by referring the question, to the county court. (Art. 1101, Pas. Dig.)

This is in ordinary cases; but the law does not leave this class of claims, which have been passed upon by the Chief of Police, to be referred to the county court. We' do not see that the county treasurer has any discretion in this matter.

The record, however, shows that these claims were referred to the county court, and that court seems to have determined that it had no jurisdiction, and that the matter was regulated by the act of May 3, 1871. It may not be improper to remark here that the appellant, acting perhaps from abundant caution, had obtained the opinion of the Attorney-General, and was thereby advised to pay these claims.

We do not think that the constitutionality of this law can be tested in this proceeding (see League v. De Young et al., 2 Texas, 497); but waiving this point, we hold that the act in question, authorizing the Governor to appoint special policemen, and providing for their payment, approved July, 1870, is not subject to the objections urged against it, and the judgment of the District Court is therefore affirmed in each of the cases here submitted.

Affirmed.