In the majority opinion, this court determined that appellants' petition presents 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 apportioning the road and bridge fund equally among the four commissioners' precincts. To this finding and determination, I cannot agree.
The rule is well settled in this state that a petition for injunction must clearly and distinctly state the material and essential elements entitling the party to relief, and must negative every reasonable inference arising from the facts so stated that the party might not under other pertinent supposable facts be entitled to relief, and, to the same extent, in passing upon the sufficiency of a petition to set aside an order, or judgment based on the ground of abuse of discretion on the part of a court which is delegated by statute to exercise it, the petition should present the essential elements and negative the inferences.
Disregarding the general allegations in appellants' petition, it presents: (1) That more than one-third of the population of Van Zandt county reside in precinct No. 1; (2) that precinct No. 1 contains more square miles of territory than two of the other precincts, the Fourth precinct having more mileage than precinct No. 1; (3) that precinct No. 1 has as many creeks, rivers, and lowlands as the rest of the county combined; (4) that, by reason of the location of an oil field in precinct No. 1, the traffic over the roads in that precinct is, and has been for four years, heavier than the traffic over all the other roads of the other three precincts; (5) that the roads in precinct No. 1 need, and have needed, more money to maintain them than is required for the other roads in the other three precincts; (6) that precinct No. 1 has at least one hundred more miles of public roads than either of the other precincts; and (7) that, for the past four years, the roads in precinct No. 1 have been in much worse condition than the roads in the rest of the county. Predicated on these supposable facts, appellants' contention is that the commissioners' court abused its discretion in apportioning the road and bridge fund equally among the four precincts of the county.
The petition does not disclose a single road in precinct No. 1, or in Van Zandt county, in need of repairs, or the exercise thereover of more supervision, or the expenditure of more money than was apportioned by the commissioners' court and placed at the disposal of the four commissioners. So far as the petition discloses, we may reasonably assume that each commissioner of the county has at his disposal a sufficient amount of money to economically and advantageously expend for labor on the roads of his district, and as many convicts, or other labor furnished him by the commissioners' court for road improvement purposes.
Article 6739, R.S. 1925, provides that: "He (county commissioner) shall expend such money as may be placed in his hands by the commissioners court under its direction in *Page 281 the most economical and advantageous manner on the public roads, bridges and culverts of his district; and all his acts shall be subject to the control, supervision, orders and approval of the commissioners court. He shall work the convicts and such other labor as may be furnished him by the commissioners court. When he has funds in his hands to expend for labor on the roads, and when it shall be necessary for any overseer in his district to work more than five days during any one year upon the public roads, he may employ such overseer to continue his duties as such for such length of time as may be necessary, and pay him for such services not more than one dollar and fifty cents per day for the time actually employed after the five days; provided, that the hands shall not be required to work when there shall be on hand, after building and repairing bridges, a sufficient road fund to provide for the necessary work on the roads. Said road commissioner shall report to the commissioners court at each regular term under oath showing an itemized account of all money he has received to be expended on roads and bridges and what disposition he has made of the money, and showing the condition of all roads, bridges and culverts in his district, and such other facts as the court may desire information upon, and shall make such other reports and at such time as the court may desire."
If, under the provisions of the above-recited statute, the commissioner of precinct No. 1 and the other commissioners have sufficient amount of money to economically and advantageously expend, or have convicts, or other labor sufficient to provide for the necessary work on the roads, then certainly it could not be said that the commissioners' court was guilty of legal fraud, or of gross abuse of discretion in making the apportionment of the road and bridge fund of the county on the basis of an equal division. On the other hand, if the commissioner of precinct No. 1 and the other commissioners of the county do not have sufficient funds, convicts, and labor to provide for the necessary work on the roads, then it is incumbent on the petitioners to negative those pertinent facts to entitle them to the relief sought.
Aside from that, manifestly, from a reading of article 6740 of the Revised Statutes, the law contemplates, as is interpreted by the majority opinion, that the road and bridge fund of the county shall be expended by the commissioners' court over the county roads as a unit, and each commissioner shall expend only such portion thereof as may be placed in his hands by the court, subject to its control, supervision, orders, and approval. Then, if that be true, the petition should negative the inference that the apportionment made by the court was not done for the betterment of the county roads. The petition under consideration wholly fails to negative the reasonable inference arising out of the statute.
Under this provision, a portion of which is quoted in the majority opinion, the commissioners' court is vested with the authority to use the entire road and bridge fund of the county on "first or second-class roads, and on those which shall have the right of way furnished free of cost to make as straight a road as is practicable and having the greatest bonus offered by the citizens of money, labor or other property," and this without regard to precinct lines or other regulations. The commissioners' court, therefore, is thus authorized to expend any part of the road and bridge fund in one precinct, equally in all precincts, or all on one road, as in its judgment may determine. A careful consideration of the petition in this case fails to disclose any allegation to negative that statutory provision and without which it is insufficient to base a claim of fraudulent action, or abuse of discretion exercised by a constitutional court.
The commissioners' courts of our state are a part of our judicial system, and, when acting within the sphere of the powers and duties conferred upon them, the judgments of these courts are entitled to the same consideration as those of other constitutional courts. The revisionary power of the district courts over the judgments of the commissioners' court may be invoked only when it has acted beyond its jurisdiction, or in case of a clear abuse of the discretion conferred upon it. Schiller v. Duncan (Tex.Civ.App.) 21 S.W.2d 571; Doyle v. Slaughter (Tex.Civ.App.) 250 S.W. 1090; Gibson v. Davis (Tex.Civ.App.)236 S.W. 202; Polk v. Roebuck (Tex.Civ.App.) 184 S.W. 513.
Article 5, § 18, of our Constitution provides that the commissioners' court "* * * shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." From this, the commissioners' court of Van Zandt county was exercising a power conferred upon it by law when it apportioned the road and bridge fund and passed the orders in question, which are conclusive unless vitiated by fraud clearly pleaded, which is not revealed in this record. *Page 282
In the case of Davisson v. Eastland County (Tex.Civ.App.) 6 S.W.2d 782, 787, the court said: "While it is true that article 5, § 8, of our Constitution, gives the district court appellate jurisdiction over commissioners' courts, this suit is not in the nature of an appeal, and it seems there has been no legislation making provision for the exercise of such jurisdiction as to matters like as involved in this suit. The orders of the commissioners' court, unless the court is without jurisdiction of the subject-matter, are not subject to attack in the absence of fraud." Polk v. Roebuck, supra; Callaghan v. Salliway,5 Tex. Civ. App. 239, 23 S.W. 837; Jeff Davis County v. Davis (Tex.Civ.App.) 192 S.W. 291; Bradford v. Moseley (Tex.Com.App.) 223 S.W. 171; Cannon v. McComb (Tex.Civ.App.) 268 S.W. 999. So, as I view the record in the instant case, the petition under consideration shows no fraudulent action, nor abuse of discretion; therefore, the district court is not in a position to disturb the honest discretion so exercised by the commissioners' court, for to do so would be assuming to act as commissioners in lieu of the duly qualified and elected officers selected by the voters to represent them in that capacity. It is, therefore, necessary for one attacking the court's action to allege that discretion has been illegally or fraudulently exercised, and, in the absence of such allegation, the court's action should stand especially when attacked only by general allegations of fraud, lack of discretion, or that the judgment was arbitrarily entered.
If it is the duty of the commissioners' court first to consider the condition and needs of the roads without reference to precinct lines, then certainly, before the court's action may be reviewed by a district court, facts must be alleged showing that the apportionment of the funds calling for an equal division among the commissioners' precincts was not done in furtherance of the roads of the county. The mere allegations that the roads of one precinct exceed in mileage, that the traffic is greater, and that the roads are in worse condition than in the other precincts, are not, in my opinion, sufficient allegation for the district court to interfere with the discretionary action of the commissioners' court.
In the case of Austin v. Guaranty State Bank (Tex.Civ.App.) 300 S.W. 129, 135, the court said: "Discretion, as applied to public functionaries, means the power or right of acting officially, according to what appears just and proper under the circumstances. * * * Courts will not interfere with the exercise of such discretionary authority unless it has been abused." The Legislature has granted to the commissioners' courts large power and wide discretion in the expenditure of the road and bridge fund of the county, and, in the exercise of that discretion, they are delegated to act on what they determine to be reasonable and fair. No hearing is required, no evidence is necessary, and no fact need be judicially determined except that the fund be expended judicially and equitably. In 32 C. J. p. 242, an admirable rule is stated, that: "Courts will not hear proofs and attempt to determine whether the discretion is wisely exercised or not. Where the law casts both a right and a duty upon an officer which involves the exercise of discretion, the officer's conduct with respect to his duty or discretion is no more to be controlled by injunction than by mandamus. An injunction may be issued in case of a gross abuse of discretion, but to constitute an abuse of such discretion it must appear that it was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable."
It may well be asserted that this record demonstrates that the commissioners' court, in apportioning the road and bridge fund in the manner determined by them as being reasonable, having due regard for the judicial and equitable expenditure of the county funds on roads and in districts of the county where needed, cannot be invaded by a district court on a showing merely that the roads in one precinct are not as good as those of the other precincts in the absence of a showing that the members of the court were influenced by impure motives detrimental to the public interests. This being true, then, on hearing of the petition to set aside the discretionary order of the commissioners' court, what order should and could be made by the district court? Can it be said that a district court may substitute its judgment for that of a subordinate tribunal in the exercise of discretion in the absence of an allegation of fraudulent conduct? I think not.
In my opinion, the petition under consideration does not reveal in the commissioners' court's action, purposes and conduct abuse of discretion in the apportionment of the funds under their supervision and control. There is no allegations of bad faith, or perversity, or of moral delinquency. Thus, the court's order is not subject to review, or be set aside, which, if done on the showing made, would be tantamount to a direction of the district court to members of the *Page 283 commissioners' court to subvert their own discretion in the matter.
I dissent from the judgment of the majority of this court; the motion for rehearing should be sustained and the case be affirmed.