Pritchard & Abbott v. McKenna

CALVERT, Chief Justice,

(dissenting).

The net effect of my disagreement with the majority is probably more philosophical than real as it affects petitioners’ right of recovery, but it is more real than philosophical as it bears on the legal principles involved. I would hold the contract invalid because subparagraph 2 of paragraph I of the contract is ultra vires the powers of the commissioners court, but would permit recovery by petitioners of the reasonable value of services and materials furnished for which the commissioners court had power to contract.

One of the crucial issues in the case is whether the contract, or any part of it, is ultra vires the powers of the commissioners court. A proper resolution of that issue does not turn on whether the commissioners court by contracting for the services of petitioners has usurped the constitutional and statutory power and duties of the assessor and collector of taxes. The contract for services and materials may not at all usurp the powers and duties of the tax assessor but yet may be ultra vires.

There can be no question but that if any part of the contract is invalid the entire contract must fall. The contract provides for payment to petitioners of $86,500.00, in installments, for all services and materials furnished. The first installment of $26,500.00 has been paid. The contract is indivisible. There is no basis on which a certain portion of the consideration can be allocated to services and materials for which the commissioners court has power to contract and a certain portion to services and materials for which the court has no power to contract. That being true, if sub-paragraph 2 of paragraph I of the contract is ultra vires, the contract is invalid in its entirety. Sylvan Sanders Co. v. Scurry County, Tex. Civ. App., 77 S.W. 2d 709, 710 , writ refused; 13 Tex. Jur. 2d 428-431, Contracts, § 213; 12 Am. Jur. 739 -740, Contracts, § 221.

A commissioners court is not a court of general or unlimited jurisdiction/ By the provisions of Section 18 of Article V of the State Constitution its “powers and jurisdiction over all county business” is only such “as is conferred by this Constitution and the laws of the State.” Moreover, its powers when act *629 ing as a board of equalization are only those “The Legislature shall provide.” Section 18, Article VIII, Constitution of Texas. Thus the power of a commissioners court to enter into a particular contract must be expressly given by statute or it must be implied as reasonably necessary to a discharge of duties imposed on the court by law; otherwise, the contract is ultra vires. Clark v. Finley, 93 Tex. 171 , 54 S.W. 343, 346-347 ; Mills County v. Lampasas County, 90 Tex. 603 , 40 S.W. 403, 404 ; Childress County v. State, 127 Tex. 343 , 92 S.W. 2d 1011, 1016 ; Canales v. Laughlin, 147 Tex. 169 , 214 S.W. 2d 451, 453 ; 15 Tex. Jur. 2d 261, 317, Counties, §§ 35, 92.

The services which were to be performed by petitioners under sub-paragraph 2 were to

“Analyze and review the permanent record card system heretofore compiled by First Party, so as to bring appraisals thereon to current condition as of January 1, 1959, adding (due to the extraordinary growth of Galveston County during the period of operations of First Party therein) all new properties, necessitated by construction and changes in ownership as of January 1, 1959, thereby supplying to Second Party permanent record cards for each lot or tract of land, *

The cards were to contain certain descriptive information.

I can find no statute expressly authorizing a commissioners court to contract for the type of services provided for in sub-paragraph 2. I do not understand the majority to sustain the validity of that portion of the contract on the basis of express authority. The only questions which remain, therefore, are whether that portion of the contract is impliedly authorized and whether it was executed pursuant to the court’s implied power. I suggest that on the basis of a careful analysis of the record before us both questions should be answered in the negative.

I quite agree that there is no ambiguity in the provisions of sub-paragraph 2 relating to the type of services to be performed by petitioners. On the other hand, there is much ambiguity in the other matters to which the sub-paragraph refers. What was the “permanent record card system” therefore compiled by First Party? For whom and for what purpose was it compiled? When were the cards to be completed and delivered? These questions *630 must be answered before we can say that the further services relating to the card system were reasonably necessary to a discharge by the commissioners court of its duties as a board of equalization and that the court, therefore, had implied power to contract for such services.

The testimony in the record discloses that the Commissioners Court of Galveston County entered into a contract with petitioners about 1955 to prepare a permanent record card system containing substantially the same information provided for in sub-paragraph 2. The 1955 contract was not introduced in evidence, but the testimony of the Tax Assessor and Collector of Galveston County and his chief deputy, and of Truett Pritchard and one of petitioners’ employees leaves the following matters uncontroverted: A separate card was to be prepared for each lot, tract or parcel of land listed on the assessor’s rolls; no card was to be prepared for any lot or tract not appearing on the rolls; there would be a total of approximately 100,000 cards; Pritchard and Abbott were to provide 48 steel cabinets for the tax assessor’s office, capable of containing 120,000 cards, in which the cards were to be filed; the cabinets were delivered to the tax assessor’s office in 1959; when the cards were completed they were to be delivered to the tax assessor for filing in the steel cabinets; when so delivered and filed they were to become a permanent record in the assessor’s office; they were to be used by the tax assessor in appraising property as a basis for figuring assessed valuations to be presented to future boards of equalization; the cards had not been completed when the contract of 1959 was executed; the parties to the 1959 contract did not contemplate that the cards would be completed or available until after the board of equalization had concluded its work for the year of 1959; the cards had not been completed when this suit was filed in October, 1959, and had not been delivered when this case was tried. A sample card is in the record.

From the undisputed testimony here summarized it is quite clear that the “permanent record card system” referred to in subparagraph 2 was a new type of permanent property record to be constructed for the office of the tax assessor, primarily for his use in the discharge of his statutory duties. That the system may have been of some incidental value to the board of equalization in reviewing assessments made by the assessor does not alter that fact. All permanent records in the assessor’s office are of some value to the board of equalization. While the validity of the 1955 contract is not directly in issue here, its validity *631 must be determined, incidentally, in deciding whether the commissioners court was authorized to contract for further services in reviewing and revising the work product of that contract.

The statutes expressly provide the types of permanent records which must, and may, be provided for a tax assessor to aid him in discharging his official duties. The commissioners court must furnish the assessor with books in which he must keep a record of all surveys of land in the county and in which he must show by whom the land is rendered and the value thereof. Arts. 7195 and 7196, V.A.T.S. The court must also furnish the assessor with books in which he is required to make and keep a record of all blocks and subdivisions of cities, towns and villages, showing the owners and values thereof. Art. 7197, V.A.T.S. The statutes referred to are mandatory in prescribing the exact form of these records^ In addition, a commissioners court may contract, with joinder of the State Comptroller, for preparation of “a tax or plat system.” Art. 7264a, V.A.T.S. No other types of property records or system are authorized by law. Petitioners insist, and the majority have held, that the “permanent record card system” which they were to construct and deliver to the Tax Assessor and Collector of Galveston County is not the type of “tax or plat system” authorized by Art. 7264a. They must so contend, for otherwise their contract would be void since approval by the State Comptroller is not even suggested. For purposes of this dissent I shall assume the majority are correct in sustaining that contention. The net result is that the Commissioners Court of Galveston County contracted with petitioners in 1955 for services in the construction of an extensive type of permanent property record for the tax assessor’s office which is unauthorized by law, either expressly or impliedly. That the type of record to be prepared might be far better, and far more useful, than any authorized by law, does not make the contract legal. The power to determine what types of permanent property records shall be furnished to and kept by tax assessors is conferred by the Constitution on the Legislature and not on commissioners courts or on this court. If the contract of 1955 is not the type of contract contemplated by Art. 7264a, it is clearly ultra vires the powers of the commissioners court, and subparagraph 2 of paragraph I providing for further services in the completion of the 1955 contract, unapproved by the State Comptroller, is likewise ultra vires. The rights of the parties under the 1955 contract are not in issue here and need not and cannot be decided.

*632 The foregoing conclusion does not mean that petitioners should be denied a recovery for their services for which the commissioners court had power to contract. The trial court refused to admit evidence of the reasonable value of those services, and that court and the Court of Civil Appeals held, as a matter of law, that petitioners cannot recover on quantum meruit on their cross-action for any of the services and materials furnished. In my opinion this holding is erroneous.

The parties agree that there can be no recovery on quantum meruit for services or materials furnished a municipal corporation under a contract which the corporation has no power to make. See Nunn-Warren Pub. Co. v. Hutchinson County, Tex. Civ. App., 45 S.W. 2d 651 , writ refused; Aldrich v. Dallas County, Tex. Civ. App., 167 S.W. 2d 560 , writ dismissed; Noel v. City of San Antonio, Tex. Civ. App., 33 S.W. 263 , writ refused; Baldwin v. Travis County, Tex. Civ. App., 88 S.W. 480 , writ refused. They also agree that a recovery may be had on quantum meruit for services or materials furnished a municipal corporation under a contract which the corporation has power to make but which is invalid for other reasons. See City of Houston v. Finn, 139 Tex. 111 , 161 S.W. 2d 776 , West Audit Co. v. Yoakum County, Tex. Com. App., 35 S.W. 2d 404 ; Sluder v. City of San Antonio, Tex. Com. App., 2 S.W. 2d 841 ; City of San Antonio v. French, 80 Tex. 575 , 16 S.W. 440 . No cases have been cited by the parties, and I have found none, dealing directly with the right to recover on quantum meruit for services and materials furnished for which a municipal corporation has power to contract when the contract therefor also requires the furnishing of services and materials for which the corporation has no power to contract.

Petitioners do cite Galveston County v. Ducie, 91 Tex. 665 , 45 S.W. 798 , as authority. That case involved the right of a physician to recover damages for breach by Galveston County of a two-year contract to render medical aid to prisoners and paupers and attend inquests for an agreed compensation of $80.00 per month. In answer to a certified question we held that the county had the power to make the contract for services to prisoners and paupers but had no power to contract for the physician’s attendance at inquests; and we further answered and held that the physician could recover damages for breach of the contract less what his services would be reasonably worth for attending inquests.

*633 Whatever may otherwise be said from an analysis of Galveston County v. Ducie, it must be admitted that a just result was reached. All of the cases hereinbefore cited for the proposition that one may recover for services or materials furnished to a municipal corporation under an invalid contract which it has power to make, rest their holding in equity and justice. By way of example, this court said in City of Houston v. Finn, 161 S.W. 2d 776 , 777: “In the instances under discussion the illegal agreement is not enforced as a contract. To the contrary, the illegal agreement as such is not enforced at all. The contract that is enforced is one that the law implies, because justice demands that a municipality shall not be permitted to receive and retain the benefits of an agreement without paying the reasonable value of such benefits.”

In the instant case Galveston County had the power to contract for all of the services and materials to be furnished save those required by sub-paragraph 2. But for the inclusion of that subparagraph the contract would not be void. All of the services and materials required under all other parts of the contract have been furnished and Galveston County has had the benefit of them. Justice requires that the county should pay for them. Petitioners should be permitted to recover the reasonable value of all services rendered and materials furnished under all of the provisions of the contract, not to exceed the contract consideration of $86,500.00, less the reasonable value of services to be performed under sub-paragraph 2 and less the sum of $26,500.00 heretofore paid.

The judgments of the trial court and the Court of Civil Appeals should be reversed and the cause should be remanded to the trial court for further proceedings consistent with this opinion.

Associate Justices Smith and Norvell join in this dissent.