On Motion for Rehearing by Appellant.
Doubtless it will be found that the petition of relators contains a number of immaterial averments, but, in our opinion, these may be disregarded, in that' we find a substantial agreement between the pleadings and proof as to the substance of the cause of action alleged. Disregarding all immaterial and, redundant allegations, the gravamen or substance of relators’ complaint against the county auditor is, that the district attorney of Dallas county, as authorized by subdivision (g) of section 19 of article 3912e, Vernon’s Ann.Civ.St., being part of chapter 465, Acts Second Called Session of the 44th Legislature, engaged the services of John Parks 'to haul to the courthouse certain marble boards being operated in violation of law, to be used by the district attorney as evidence in aid of the proper administration of the duties of his office. In this manner the expense item involved was incurred, which, on written application by the district attorney, was duly allowed by the commissioners court of Dallas county, as provided in said act, thus becoming an adjudicated claim against the county. There being sufficient unexpended funds to pay tbe claim, it was presented to the auditor for countersigning, or for such approval for payment as under the circumstances he was required to give, but the auditor refused in any manner to approve same for payment; not because of the form in which it was presented, but because, in his opinion, the district attorney had exceeded his authority in incurring the indebtedness. After approval by the commissioners court, the claim became a final judgment ; in this status we think it became simply the ministerial duty of the auditor to approve same for payment. We do not think he was authorized to raise any question as to the regularity of the conduct of the district attorney after approval of the claim by the commissioners court. If, in taking possession of the tables, the district attorney acted in excess of legal authority and trespassed upon the rights of others, they alone could have objected. In prosecuting the duties of his office, the district attorney was authorized to procure, for use as evidence, the marble boards or gambling tables and, in our opinion, the auditor was not justified in placing himself in opposition to the approval of the claim, simply because he did not approve the method nursued by the district attorney. However,’we are not to be understood as, in any sense, implying that the county auditor was arbitrary or contumacious in his firm opposition to the approval of the claim. He exhibited independence both of thought and action, but, as we think, simply erred in judgment; and this, no doubt, was largely due to the fact that the statute under which the claim was incurred and the procedure regulating its approval for payment, set up a procedure that differed materially from the usual and ordinary method required for the presentation and approval of claims for payment.
The motion for rehearing is overruled.