I find myself out of harmony with the decision of the majority, therefore will state the case as I believe the record justifies, and the reasons for my dissent:
W. W. Howard and wife, appellants, are seeking by mandamus to require the county judge and the county commissioners of Henderson county to authorize the issuance of county warrants in accordance with an order of the commissioners' court adopted September 25, 1934, allowing appellants $10 per month each as long as they live, in settlement of a claim against the county for $3,500.05, balance due for services rendered the county in keeping its poor farm, furnishing board, lodging, etc., and caring for the wards of the county. The order or judgment in question reads: "That W. W. Howard and wife be paid $10.00 per month each, in form of warrants drawn on General Fund, during the remainder of their lifetime, to reimburse them for service already rendered. In case of death of either the survivor shall continue to draw $10.00 per month." A joint warrant was issued appellants for two months under this order, but the personnel of the commissioners' court having changed, the order was rescinded, at all events, further payments were refused, resulting in the institution of this suit to set aside the order of rescission, and for a writ of mandamus compelling compliance with the original order. At the conclusion of the evidence, the court instructed a verdict for defendants, judgment following accordingly, from which this appeal was taken.
Appellants' contention is: That the order or judgment of the commissioners' court was entered in settlement of a claim for $3,500.05 against Henderson county, balance due Mr. Howard for services rendered in keeping the poor farm and in caring for the county wards, under contracts entered into in 1931 and 1933, respectively, the amount of the claim presented to the commissioners' court being the difference between the face value of the warrants issued and the amount of cash realized on sale thereof; in other words, the discount suffered, which, according to the contention of appellants, the county was contractually obligated to make good.
The contentions of appellees are: That the order of September 25, 1934, being void, it was the duty of the commissioners' court to rescind and disregard same, in that, it evidenced an attempt on the part of the commissioners' court to grant appellants pensions in violation of section 52, article 3 of our Constitution; or, that the order was void under section 53, article 3 of the Constitution, in that, the same was an attempt to grant extra compensation, *Page 484 after the services performed had been fully compensated according to the terms of existing contracts.
Under the authorities, I think the order in question had the effect of a final judgment, hence was not subject to collateral attack or to be revoked at a subsequent term, as was attempted (Edmonson v. Cumings, Tex. Civ. App. 203 S.W. 428; Ashburn Bros. v. Edwards County, Tex.Com.App., 58 S.W.2d 71), and could be vacated only in a direct proceedings brought in the district court for that purpose, as authorized by section 8, article 5 of the Constitution and article 1908, R.S.; however, this remedy was not pursued by appellees. See Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162; Oden v. Barbee, 103 Tex. 449,129 S.W. 602; Kirby v. Transcontinental Oil Co., Tex. Civ. App.33 S.W.2d 472.
The recital that the warrants were "to reimburse them for services already rendered," imports a consideration, and forbids the indulgence of a contradictory presumption, to the effect that the order was merely an attempt to pension appellants or confer upon them gratuities. Presumptions may be indulged to supply, but never to contradict, the recitals of a judgment. So, I think the question narrows to this: May an inquiry be now made (which in effect is a collateral attack upon the order of September 25, 1934) as to whether the reimbursement to appellants, mentioned in the order, "for service already rendered," was in fact extra compensation, over and above that to which they were entitled under the contracts, or, rather, should we not indulge the presumption that the action of the commissioners' court in the premises was legal and valid? In allowing the claim and directing its payment, the commissioners' court acted in a judicial capacity, and its order is entitled to the force and effect of a final judgment, which could have been reviewed and vacated only in the prescribed manner, that is, by direct action in the district court. Also see Coryell County v. Fegette, Tex. Civ. App. 68 S.W.2d 1066. Although the record is silent in regard to whether the reimbursement order was based upon a previously existing contract, nevertheless, as against a collateral attack, we think all presumptions should be indulged in favor of the validity of the action of the court. In Martin v. Robinson, 67 Tex. 368, 374, 3 S.W. 550, the Supreme Court used language in point, as follows (page 552): "When a court of record, having such jurisdiction, has assumed to exercise it in a given case, all presumptions are in favor of the validity of its proceedings; and if the record of such a court shows that the steps necessary to clothe it with power to act in the given case were taken, or if the record be silent upon this subject, then its judgment, order, or decree must be held conclusive in any other court of the same sovereignty when collaterally called in question. Burdett v. Sillsbee, 15 Tex. [604] 618; Alexander v. Maverick, 18 Tex. [179] 197 [67 Am.Dec. 693]; Withers v. Patterson, 27 Tex. [491] 492 [86 Am.Dec. 643]; Lawler v. White, 27 Tex. [250] 254; Murchison v. White, 54 Tex. 78; Guilford v. Love,49 Tex. 715 ."
However, if I am in error — that is to say, if the record is open to an inquiry as to whether or not the county was contractually obligated to make good whatever discount Mr. Howard suffered in procuring the cash on warrants issued to him — yet I think that, as the evidence in support of this contention was sufficient to raise the issue, the court erred in directing a verdict for defendants.
Obviously, this suit was not based upon the original contract alleged to have been made with the commissioners' court, but upon the adjustment made of the claim growing out of the original contract, the original being referred to simply as the basis justifying the commissioners' court in entering the order upon which the present suit was based. If the county entered into the arrangement to reimburse Howard for the loss sustained by having to discount the face of warrants issued to him, as contended, I think such an agreement clearly within the authority of the commissioners' court, under subdivision 11 of article 2351, R.S., authorizing the court to provide for the support of paupers etc.; and that the settlement, directing how payments should be made, as evidenced by the order of September 25, 1934, was authorized by subdivision 10 of article 2351, supra, granting commissoners' courts power to "Audit and settle all accounts against the county and direct their payment."
Unquestionably, the commissioners' court could have agreed to pay Howard in warrants at face value an amount per month sufficient to absorb the discount at the then prevailing rate, so as to yield $10 per month cash; this being true, why was the commissioners' court not authorized to accomplish substantially the same result by agreeing to pay $10 per month on a cash *Page 485 basis, necessarily comprehending that Howard would be reimbursed the discount he had to yield in order to obtain $10 per month cash. I also think the court was authorized to direct payment of the claim, either in a lump sum or in installments. On account of the condition of the county's fiscal affairs, it was doubtless deemed best to direct payments in installments during the number of years these old people would likely live, the payments each year being only about 7 per cent. of the amount of Howard's claim. These are matters peculiarly within the exclusive domain of the commissioners' court, into which trial and appellate courts cannot with propriety enter.
It is true that the contracts were not made with Mrs. Howard individually, but with Mr. Howard; and Mrs. Howard individually asserted no claim, but it seems that, in the adjustment, the amount allowed ($20 per month) was directed to be paid $10 to each Mr. and Mrs. Howard, evidently by agreement of the parties. This was an after consideration, purely a matter of agreement, and in no sense touched the legality or validity of the original arrangement. It being a community transaction that Mr. Howard had the legal right to control, if he saw fit to have one-half the amount paid to Mrs. Howard, no one else was affected or could complain.
It may be true, as stated in the majority opinion, that there was no contention or evidence that the commissioners' court contracted to pay Howard the amount of "discounts" eo nominee, on warrants, but looking to the substance of the matter, while "discounts" as such were not mentioned, the agreement entered into for the year 1933-34, as testified to by both Howard and his son (and not contradicted), was upon a cash basis, that is to say, on a basis of. $10 per month in cash, instead of $10 per month in scrip or warrants; this, it is perfectly evident, could not have been accomplished, and the contract in good faith performed, unless the county reimbursed Howard the amount he lost by having to discount the warrants.
Due to the failure of its depositary in March, 1931, the county lost money, its warrants depreciated in value, requiring heavy discounts in order to obtain cash. At the trial the county treasurer testified that the fiscal affairs of the county were in such condition that warrants issued would not likely be paid under four or five years. The merchant from whom Howard purchased groceries, and to whom he delivered the warrants for sale (proceeds to be credited on the grocery account), testified that the warrants could not be sold for more than from 50 to 60 per cent. of their face value.
While the testimony of Mr. Howard, in places, is somewhat confusing and apparently contradictory, yet it should be considered as a whole in order to arrive at its meaning. He testified that, in the fall of 1934, the commissioners' court was anxious for him to yield possession and move from the premises. He had several months yet to serve, and was unwilling to yield possession. This precipitated a controversy, and the presentation of his claim for discounts he had to yield, resulting in a final settlement, as evidenced by the order of the commissioners' court heretofore set out. He gave testimony which, standing alone, would bear the construction that the commissioners' court made the settlement in consideration of his moving off and yielding possession of the premises. But, even if that was the agreement, it was not without consideration, for certainly Howard did not have to yield possession, and the commissioners' court could not arbitrarily have moved him; hence an agreement to pay him a consideration for moving would have been perfectly legal. Evidently, Howard's yielding possession entered into the adjustment, but the matter of discount seems to have been the larger consideration. I do not think the question should have been determined from a mere fragment of the testimony, but that all testimony bearing upon the issue should have been considered. If this had been done and the issue submitted, I think the jury could reasonably have concluded from the evidence that, although the word "discount" was not mentioned when the contracts were let, yet, from the testimony of both Howard and his son, the conclusion could have been reached that the contract for 1933-1934 was let on a cash basis, as distinguished from warrants at face value, which impliedly contemplated, without mentioning the word "discount," that Howard would be reimbursed the amount necessary to yield $10 in cash.
A matter worthy of consideration is that, neither the county judge, nor any person connected with the commissioners' court at the time the contracts were let to Howard, testified in the case. If Howard's version of the arrangement was deemed incorrect by any member of the court, it seems that such member should have been called as a *Page 486 witness. So, in view of this status, I am of opinion that the trial court erred in assuming, as a matter of law (which necessarily must have been assumed in directing the verdict), that there was no evidence tending to show that the county contracted to pay Howard cash, as distinguished from script or warrants at face value.
For reasons stated, I think the order of September 25, 1934, is a final judgment and not subject to collateral attack; and not having been appealed from and vacated in a direct proceeding, should be enforced; therefore, am of opinion that appellants are entitled to the relief sought. But, if in this I am in error, and it should be held that it is permissible at this time to inquire whether there existed a contractual obligation on part of the county to make good the discounts Howard had to yield in order to obtain cash on the warrants issued to him, as the evidence raised the issue, I think the court committed reversible error in directing a verdict for defendants, hence that the judgment should be reversed and the cause remanded for further proceedings.