Ordinarily, I do not deem it advisable to write in a case in which I concur in the judgment recommended in the opinion of my associates. But the importance of the issues involved in this case, and the far-reaching consequences of the application of the reasons assigned by my associates for affirming this judgment, make it my duty, as I conceive it, to express briefly my views in regard to the grounds upon which the judgment of the trial court should be affirmed.
The opinion of the majority, as I understand it, rests upon the conclusion that, under the statutes, the commissioners' court has no authority, even with the consent of a city, to *Page 412 expend any money under any character of contract in the construction or maintenance of a street that forms a connecting line between two sections of a public road or highway.
My view of this question is this: Granting that the construction given the statutes by my associates is reasonable and logical, and even though it is the one which should have heretofore been adopted, we are not, I think, at liberty to adopt that construction at this time, for the reason that the question has been heretofore foreclosed. The opinion of the majority is admittedly in direct conflict with the opinion in the case of Smith v. Cathey (Tex.Civ.App.) 226 S.W. 158. It seems to be in conflict with Cannon v. Healy Construction Company (Tex.Civ.App.) 242 S.W. 526 (error refused), but expresses a doubt as to its conflict with that case. It is further in conflict with the language of the Supreme Court in the case of State v. Jones, 18 Tex. 874. It is also in conflict with the opinion of the Attorney General's department of this state. In an opinion dated February 2d 1915, rendered by the Attorney General's department (See Report and Opinions of Attorney General, 1914-1916, p. 728), the county attorney of Tarrant county was advised that, with the consent of city councils, commissioners' courts might construct or co-operate in constructing roads through incorporated towns or cities. Opinions by the Attorney General's department are always persuasive. Such opinions are highly persuasive when they pertain to the duties of state or county officers.
It is a matter of common knowledge that the practice of county commissioners has been to expend money in constructing highways through incorporated towns and cities in order to connect up the public roads and highways. The record before us in the instant case discloses that the streets which were improved by virtue of the contract involved in this case were originally constructed and paved through the city of Breckenridge by Stephens county, with state and federal aid, the city constructing all of the street in excess of a width of twenty feet. The Legislature, With knowledge of the construction of the general statutes with reference to powers of commissioners' courts, not only has failed to amend same, but has re-enacted them at each recurring revision. These considerations lead me to the conclusion that a different construction and interpretation should not now be placed thereon, particularly in view of the obvious consequences thereof.
It is my opinion that the judgment of the trial court should be upheld and affirmed upon the grounds set forth in appellee's counter propositions 1, 2, 3, 9, and 12, Some of the other counter propositions appear to have merit, but I have not carefully considered them.
For the reasons indicated, I concur in the judgment recommended in the opinion of the majority.