JONES, Chief Justice.
This suit was instituted by appellants, E. M. Shivers and W. L. Garland, against ap-pellees, the commissioners’ court of Van Zandt county, the county judge, the county treasurer, and the county auditor, to review an order of said1 court, distributing the road and bridge fund of said county, and to enjoin appellees from carrying out such order. A general demurrer was sustained to appellants’ petition, and the suit was dismissed when appellants declined to amend. The appeal is duly perfected to this court.
When a general demurrer is sustained to a petition, the facts alleged become the admitted facts in the case, and must 'be so treated 'on an appeal from such order. The allegations in the petition disclose that in April, 1931, the commissioners’ court of Van Zandt county passed an order dividing the road and1 bridge fund for the county equally among the four commissioner precincts, and the fair intendment of the allegations in the petition is that this order was made without examination into, or consideration of, the needs of the roads in respect to repair, in each of the four - precincts, and without regard to the mileage of roads in each precinct, the amount of traffic over the roads of such, precincts, or the amount of taxes collected in
each precinct for road and bridge purposes. This action, in distributing such fund, was taken oyer the protest of the commissioner of precinct No. 1, who insisted that said fund should be distributed in each precinct in proportion to the amount of taxes collected in such precinct, and offered a resolution so apportioning said fund. Eor the years 1&32, 1933, and 1934, the commissioners’ court, without any other formal resolution, acted under the 1931 order, in distributing the road and bridge fund of the county, in the same manner as in 1931.
In 1931, precinct No. 1 paid 73 per cent, of the taxes collected for road and bridge purposes, precinct No. 2, 5 per cent, precinct No. 3, 16 per cent., and precinct No. 4, 6 per cent., and the same is true as to the amount of taxes paid by each precinct for the years 1932 and 1933. Por the year 1934, it appears that precinct No. 1 paid 72 ½ per cent, of such taxes, precinct No. 3, 16½ per cent., and Nos. 2 and 4, the same percentage theretofore paid. In March, 1934, the commissioner of precinct No. 1 offered a resolution, to the effect that the road and bridge fund should be distributed in proportion to the taxes paid by each precinct. This resolution was not passed and the commissioners’ court adhered to the distribution of said fund as made by thq resolution of 1931.
There are 831 square miles of territory in Van Zandt county, 221 in precinct No. 1, 170 in precinct No. 2, 250 in precinct No. 3, and 190 in precinct No. 4. - Precinct No. 1 is traversed by as many creeks, rivers, and lowlands as are the other three precincts combined. The county roads in precinct No. 1 have as much traffic as all of the other county roads in the county, there being located within said precinct a large oil field, which has been operated for the past four years. The needs of tire 'oil field, in the way of machinery, requires the u‘se of a great many trucks on such roads, and' has required such use for the past four years, and the county roads in precinct No. 1, by reason of the oil field, have had for the past four years more heavy traffic than all of the rest of the county roads in said county, and the county roads in said precinct are in a worse condition than such roads in any other precinct. Precinct No. 1 has 500 miles of county roads and no other precinct has more than 400 miles of county roads. While precinct No. 3'contains more territory than precinct N'o. 1, said, precinct is not traversed' by creeks, rivers, and lowlands, but is almost entirely prairie country, and the roads in such precinct need very little repair and maintenance. There are 65 miles of paved state and national highways through the county, hut by reason of the location of these highways they accommodate less of the travel in precinct No. 1 than they d’o any, other commissioner precinct.
Appellants are resident taxpayers in commissioner precinct No. 1. The road and 'bridge fund to be expended in tbe entire-county amounts to approximately $90,000, of which approximately $50,000 is derived from the county taxes, collected for that purpose, and approximately $40,000 is derived from the automobile registration taxes.
The above allegations of fact form the basis of the conclusion, alleged by appellants-in their petition, that the action of the commissioners’ court, in making each year an equal distribution among the commissioner precincts of the road and bridge fund, is arbitrary and without the exercise of discretion on the part of the commissioners’ court.
It appears from the allegations in tne petition that, since the order of the Commissioners’ court, made in April, 1931, apportioning the road and bridge fund- equally among the four commissioner precincts, it nab become the settled policy of the commissioners’ court to make such apportionment without inquiry as to the needs of the roads in each precinct. It is true that the commissioners’ court, composed of public officials, charged with the duty to apportion this fund to the roads of the county, must he allowed a broad discretion in the performance of this official duty. It is likewise true that the discretion herein allowed by law must' not-be abused to the wrongful injury of any commissioner precinct. The discretion allowed a commissioners’ court, in respect to the apportionment of the road and bridge fund, is .subject to review by a court of competent jurisdiction, just as the exercise of the power of discretion lodged in any public official may be reviewed by a court of competent jurisdiction in a proper suit filed for such purpose.
Section 8 of article 5 of our state Constitution gives the district court jurisdiction of this character of suit. The applicable portion of said section reads: “The District Court shall have appellate jurisdiction and general supervisory control over the County .Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.” Article 1908 of the Revised Statutes, the enabling act, gives the district court such power in the identical language -of the constitutional provision. Our courts have repeatedly held that a direct suit, either in
law or in equity, whose purpose and effect is to review or set aside an order of a commissioners’ court, comes within the power granted by the constitutional and statutory provisions above referred to. Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162; Oden et al. v. Barbee et al., 103 Tex. 449, 129 S. W. 602; Kirby v. Transcontinental Oil Oo. (Tex. Civ. App.) 33 S. W. (2d) 472; Bird et al. v. Alexander et al. (Tex. Civ. App.) 288 S. W. 606.
Article 6740, R. S., prescribes that; “The commissioners court shall see that the road and bridge fund of their county is judiciously and equitably expended on the roads and bridges of their county, and, as nearly as the condition and necessity of the roads will permit, it shall be expended in each county commissioners precinct in proportion to the amount collected in such precinct. * *
*
” This article defines the duties of the commissioners’ court in reference to the expenditure of the road and bridge fund and, in effect, forbids any arbitrary apportionment of such fund among the commissioner precincts.
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JONES, Chief Justice.
This suit was instituted by appellants, E. M. Shivers and W. L. Garland, against ap-pellees, the commissioners’ court of Van Zandt county, the county judge, the county treasurer, and the county auditor, to review an order of said1 court, distributing the road and bridge fund of said county, and to enjoin appellees from carrying out such order. A general demurrer was sustained to appellants’ petition, and the suit was dismissed when appellants declined to amend. The appeal is duly perfected to this court.
When a general demurrer is sustained to a petition, the facts alleged become the admitted facts in the case, and must 'be so treated 'on an appeal from such order. The allegations in the petition disclose that in April, 1931, the commissioners’ court of Van Zandt county passed an order dividing the road and1 bridge fund for the county equally among the four commissioner precincts, and the fair intendment of the allegations in the petition is that this order was made without examination into, or consideration of, the needs of the roads in respect to repair, in each of the four - precincts, and without regard to the mileage of roads in each precinct, the amount of traffic over the roads of such, precincts, or the amount of taxes collected in
each precinct for road and bridge purposes. This action, in distributing such fund, was taken oyer the protest of the commissioner of precinct No. 1, who insisted that said fund should be distributed in each precinct in proportion to the amount of taxes collected in such precinct, and offered a resolution so apportioning said fund. Eor the years 1&32, 1933, and 1934, the commissioners’ court, without any other formal resolution, acted under the 1931 order, in distributing the road and bridge fund of the county, in the same manner as in 1931.
In 1931, precinct No. 1 paid 73 per cent, of the taxes collected for road and bridge purposes, precinct No. 2, 5 per cent, precinct No. 3, 16 per cent., and precinct No. 4, 6 per cent., and the same is true as to the amount of taxes paid by each precinct for the years 1932 and 1933. Por the year 1934, it appears that precinct No. 1 paid 72 ½ per cent, of such taxes, precinct No. 3, 16½ per cent., and Nos. 2 and 4, the same percentage theretofore paid. In March, 1934, the commissioner of precinct No. 1 offered a resolution, to the effect that the road and bridge fund should be distributed in proportion to the taxes paid by each precinct. This resolution was not passed and the commissioners’ court adhered to the distribution of said fund as made by thq resolution of 1931.
There are 831 square miles of territory in Van Zandt county, 221 in precinct No. 1, 170 in precinct No. 2, 250 in precinct No. 3, and 190 in precinct No. 4. - Precinct No. 1 is traversed by as many creeks, rivers, and lowlands as are the other three precincts combined. The county roads in precinct No. 1 have as much traffic as all of the other county roads in the county, there being located within said precinct a large oil field, which has been operated for the past four years. The needs of tire 'oil field, in the way of machinery, requires the u‘se of a great many trucks on such roads, and' has required such use for the past four years, and the county roads in precinct No. 1, by reason of the oil field, have had for the past four years more heavy traffic than all of the rest of the county roads in said county, and the county roads in said precinct are in a worse condition than such roads in any other precinct. Precinct No. 1 has 500 miles of county roads and no other precinct has more than 400 miles of county roads. While precinct No. 3'contains more territory than precinct N'o. 1, said, precinct is not traversed' by creeks, rivers, and lowlands, but is almost entirely prairie country, and the roads in such precinct need very little repair and maintenance. There are 65 miles of paved state and national highways through the county, hut by reason of the location of these highways they accommodate less of the travel in precinct No. 1 than they d’o any, other commissioner precinct.
Appellants are resident taxpayers in commissioner precinct No. 1. The road and 'bridge fund to be expended in tbe entire-county amounts to approximately $90,000, of which approximately $50,000 is derived from the county taxes, collected for that purpose, and approximately $40,000 is derived from the automobile registration taxes.
The above allegations of fact form the basis of the conclusion, alleged by appellants-in their petition, that the action of the commissioners’ court, in making each year an equal distribution among the commissioner precincts of the road and bridge fund, is arbitrary and without the exercise of discretion on the part of the commissioners’ court.
It appears from the allegations in tne petition that, since the order of the Commissioners’ court, made in April, 1931, apportioning the road and bridge fund- equally among the four commissioner precincts, it nab become the settled policy of the commissioners’ court to make such apportionment without inquiry as to the needs of the roads in each precinct. It is true that the commissioners’ court, composed of public officials, charged with the duty to apportion this fund to the roads of the county, must he allowed a broad discretion in the performance of this official duty. It is likewise true that the discretion herein allowed by law must' not-be abused to the wrongful injury of any commissioner precinct. The discretion allowed a commissioners’ court, in respect to the apportionment of the road and bridge fund, is .subject to review by a court of competent jurisdiction, just as the exercise of the power of discretion lodged in any public official may be reviewed by a court of competent jurisdiction in a proper suit filed for such purpose.
Section 8 of article 5 of our state Constitution gives the district court jurisdiction of this character of suit. The applicable portion of said section reads: “The District Court shall have appellate jurisdiction and general supervisory control over the County .Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.” Article 1908 of the Revised Statutes, the enabling act, gives the district court such power in the identical language -of the constitutional provision. Our courts have repeatedly held that a direct suit, either in
law or in equity, whose purpose and effect is to review or set aside an order of a commissioners’ court, comes within the power granted by the constitutional and statutory provisions above referred to. Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162; Oden et al. v. Barbee et al., 103 Tex. 449, 129 S. W. 602; Kirby v. Transcontinental Oil Oo. (Tex. Civ. App.) 33 S. W. (2d) 472; Bird et al. v. Alexander et al. (Tex. Civ. App.) 288 S. W. 606.
Article 6740, R. S., prescribes that; “The commissioners court shall see that the road and bridge fund of their county is judiciously and equitably expended on the roads and bridges of their county, and, as nearly as the condition and necessity of the roads will permit, it shall be expended in each county commissioners precinct in proportion to the amount collected in such precinct. * *
*
” This article defines the duties of the commissioners’ court in reference to the expenditure of the road and bridge fund and, in effect, forbids any arbitrary apportionment of such fund among the commissioner precincts. There is placed upon the commissioners’ court the duty of judiciously and equitably expending the county road and bridge fund on the roads and bridges of their county. The term “judiciously,” as therein used, means that the commissioners’ court, in expending such fund, shall be directed or governed by sound judgment. Webster’s New Intern. Diet. The term “equitably,” as therein used, means that the fund shall be expended on the roads in the county fairly and impartially. Webster’s New Intern. Diet.
A statutory duty, therefore, rests upon the commissioners’ court of a county, to exercise sound judgment, based upon a fair and impartial consideration of the needs of the various roads of the county, in the expenditure of the road and bridge fund. If such judgment so exercised will allow such fund to :be expended in each precinct in proportion to the taxes for road and bridge purposes, collected in such precincts,' then the •duty rests upon the commissioners’ court to so apportion t!he fund.
We therefore hold that it is the duty of the commissioners’ court, first, to consider the condition and needs of the roads, without reference to precinct lines, and if it then appears that the condition of the various roads is such that a judicious and equitable expenditure of the money can be made by allowing to each precinct a share of the road and bridge fund, in proportion to the amount of taxes collected in said precinct, then such fund should be so apportioned among the precincts. ’ . .
It may be also said that, if a fair and impartial judgment of the commissioners’ court, based on the condition and needs of the roads of the county, call for an equal division of the road and bridge fund among the commissioner precincts, then such an apportionment would be a judicious and equitable expenditure of such fund.
Appellants’ petition does not present a case that a district court would be authorized to hold that there was an abuse of discretion by the commissioners’ court of Van Zandt county, in not mailing the apportionment of the road and bridge fund in the precincts in proportion to the taxes collected.
We are, however, of the opinion that the allegations in the petition do make a case showing an abuse of discretion on the part of the commissioners’ court, in apportioning the road and bridge fund equally among the four commissioner precincts. Such allegations clearly show that the needs of precinct No. 1, in respect to its roads, is far greater than the needs of the roads in any other precinct, and that the apportionment made by the commissioners’ court, under the .allegations of the petition, is in violation of the statute, commanding such court to make the expenditure of the road and bridge fund judiciously and equitably, and constitutes an abuse of official discretion.
In respect to the sum of $40,000 derived from the registration of automobiles, article 6675a — 10, Vernon’s Ann. Civ. St., provides, in effect, that all of the money derived from such source shall be used for the construction and maintenance of lateral roads in the county, under the supervision of the county engineer, or of a division engineer of the State Highway Commission, if there be no county engineer. This fund was included in the apportionment of equal amounts to the four commissioner precincts.
We are of the opinion that the commissioners’ court is charged with the duty of expending the fund, so derived, judiciously and equitably on the lateral roads of the county. Of course, that portion of article 6740 in respect to the road and bridge fund being apportioned in proportion to the amount of taxes collected in each precinct has no application to this fund, and is no restriction on the commissioners’ court in the expenditure of this fund. The allegations in appellants’ petition are not sufficient to call for a review of the 1931 order of the commissioners’ court, if the
expenditure of this fund was alone involved. The commissioners’ court, however, treated the road and bridge fund of $50,000 derived from the taxes, and $40,000 derived from automobile registrations, as one fund in making the equal distribution of the entire fund among the commissioner precincts, and the allegations of the petition refer to this entire fund, for which reason we think the order of 1931, disposing of the entire fund, is subject to review in respect to the entire fund.
Appellees treated this suit as merely an injunction suit and briefed it from the standpoint that the allegations are not sufficient for relief under a purely injunction suit. Clearly, the main purpose of the petition is first to secure relief by a review of the 1931 order of the commissioners’ court, under which said court was acting, and the injunction feature of it is an incidental matter, affecting only the relief sought after said order is reviewed and set aside. We do not think the petition alleges grounds for a temporary restraining order. The courts should be, and are, very slow to restrain public officials in the discharge of a public duty, until such officials are accorded a full hearing, and if this were the only question involved, we would be inclined to affirm the case.
It necessarily follows that, in our opinion, this case must be reversed and remanded for a hearing upon the merits, in respect to the allegations charging abuse of the discretion lodged in the commissioners’ court, in the manner in which, under their settled policy, they have apportioned their road and bridge fund, and the case is accordingly reversed and remanded.
Reversed and remanded.
BOND, J., dissents from the conclusion in the opinion that the petition was sufficient to show an abuse of discretion on the part of the commissioners’ court.