
    John P. Davis v. R. A. Burney.
    (Case No. 1436.)
    1. Taxation.— On April 1,1878, the commissioners’ court of Galveston county passed an order providing for the registration of all scrip issued prior to the 18th day of April, 1876; that the same, when registered, should bear eight per cent, interest from that date, and that such scrip should not be receivable for taxes. On the 1st day of February, 1880, an order was passed by the same court, levying, among other county taxes, one of three cents on the one hundred dollars’ valuation, for the payment of registered warrants. Held,
    
    (1) The order providing for the registration of county scrip, making the same bear interest from date of registration, and that it -should not be received in payment of county taxes, was not void.
    (2) The tax of three (3) cents on the one hundred dollars’ valuation, thus levied, was valid.
    Appeal from Galveston. Tried below before the Hon. Wm. H. Stewart.
    Suit brought by John P. Davis against B. A. Burney, in his official capacity as collector of taxes for Galveston county, to recover the sum of $601.94, claimed to be the amount of illegal county taxes paid to appellee by appellant under protest.
    On April 1, 1878, the commissioners’ court of Galveston county passed an order providing for the registration of all scrip issued prior to the 18th day of April, 1876; that the same, when registered, should bear legal interest (eight per cent.) from that date, and that such scrip should not be receivable for taxes.
    On the 14th day of February, 1880, that court passed an order levying county taxes, in separate items, in substance as follows:
    1st. Thirty cents on the one hundred dollars to pay interest, etc., on Gulf, Colorado & Santa Fe Bailway bonds.
    2d. Twenty-five cents on the one hundred dollars for general county purposes.
    3d. Ten cents on the one hundred dollars for the erection and completion of the public buildings, etc.
    4th. Two cents on the one hundred dollars to pay the interest, etc., of library bonds.
    5th. Three cents on the one hundred dollars for the payment of registered warrants.
    On the assessed value of appellant’s property these taxes in the aggregate amounted to $601.94. This amount was paid by appellant under protest, April 25, 1881. Appellant claimed that the order of the commissioners’ court allowing interest on registered scrip was ultra vires and void; and that this illegality affected the whole of the county taxes as levied.
    Appellee answered by general demurrer and general denial, and also by special answer, which need not be noticed.
    June 7, 1882, the cause was tried by the court without a jury, and judgment rendered for appellee. The errors assigned were:
    1st. The court erred in holding that the order allowing interest on scrip was valid. 2d. The court erred in holding the levy of county taxes legal. 4th. The court erred in rendering judgment for appellee. The other errors assigned were not urged in argument.
    
      
      Trezevant & Franklin, for appellant.
    I. It is not within the competency or power of commissioners’ courts • in this state to order that county warrants issued by such courts shall, upon their registration, bear interest from date of their registration until paid. 1 Daniel on Neg. Inst., sec. 432; Auditorial Board v. Arles, 15 Tex., 74; Alison v. County, 50 Pa. St., 351; Madison Co. v. Bartlett, 1 Scam. (Ill.), 67; Chicago v. The People, 56 Ill., 327; City of Pekin v. Reynolds, 31 Ill., 529; Johnson v. Stark Co., 24 Ill., 75; Whiting v. The State, 52 Miss., 732; State v. Trustees, 61 Mo., 155; 7 Harris, 200.
    II. The court erred in its second conclusion of law in holding that the levy complained of is a valid and legal levy of taxes. Where the purpose and object for which a county tax is levied by a commissioners’ court is legal in part and illegal in part, the tax, being an entirety, is illegally levied and is invalid. A tax of three cents per §100 was levied to pay registered warrants previously issued by the commissioners’ court of Galveston county, which warrants, by order of said court, bore interest from registration. This tax was applied to the payment of such warrants as registered. Cooley on Tax., 210, 296, 554; Dean v. Lufkin, 54 Tex., 265; Hilliard on Tax., 293, note a, 313, sec. 44; Freeland v. Hastings, 10 Allen, 570; Drew v. Davis, 10 Vt., 506; Stetson v. Kempton, 13 Mass., 271; Libby v. Burnham, 15 Mass., 144; Campbell v. The State, 41 Ill., 455; Johnson v. Colburn, 36 Vt., 693; Bruce v. Hodges, 14 Rich.. 256; Straus v. Pontiac, 40 Ill., 301.
   Watts, J. Com. App.

At the time the commissioners’ court passed the order providing for the registration of county scrip issued prior to April 18, 1876, the constitution provided that such scrip might be used in the payment of any taxes levied to meet such indebtedness. Sec. 6, art. X, Const, of 1876. And the statute also provided that all ad valorem county taxes might be paid in the jury and county scrip of the county. General Laws 1876, p. 246, sec. 6.

Heither the constitution nor statute compelled the payment of such taxes to be made in scrip. Primarily all indebtedness and burdens by way of taxation are payable in money. In the particulars mentioned, a privilege is conferred upon the citizen—he has the option either to pay in money or scrip. There is nothing in the nature of the case that would preclude the citizen from making a contract by which he would waive this privilege. That is to say, for a sufficient consideration he could enter into a binding contract to forego this, as he could any other personal benefit conferred by law. Public policy does not supervene and render such a contract ineffectual as to the citizen. The public are not affected by the fact that the citizen has bound himself to pay his pro rata of county taxation in money, rather than the scrip of the county.

It does not admit of doubt but that under the order of the commissioners’ court, the citizen could, by accepting the interest therein provided for, preclude himself from the right of paying his county taxes in the registered scrip, if upon its part the court had the power to make the contract; and that is the next and main question to be determined.

dSTo doctrine in respect to municipal corporations is more fully recognized, and oftener acted on, than that such corporations can only exercise such powers as are expressly given by legislative act or charter, and such implied powers as are necessary to carry into effect such as are expressly granted. Pye v. Peterson, 45 Tex., 312. See also Cooley on Const. Lim., p. 235, and numerous authorities cited in note 1.

By explicit legislative enactments, the power is conferred upon the commissioners’ court to audit and allow claims against the county, and to provide the means by way of taxation to pay the same. The power to issue scrip or warrants for allowed claims is also fully recognized by the legislature. The statute also expressly authorizes the clerks of the district and county court to issue jury scrip, which is a subsisting indebtedness of the county, and does not have to be audited by the commissioners’ court; and authority is also given to that court to provide for this class of, indebtedness by taxation. In short, full power is given to the court over these matters, qualified by constitutional and statutory limitations as to the amount or rate of taxation.

Prom the very nature of the case, the commissioners’ court must have considerable discretion in its management of county finance; as to when and how the county indebtedness is to be paid, and in providing the means for payment. In such matters it would be impracticable for the legislature to descend into the particulars, and undertake to confer express powers upon the court in the management of such a complicated matter in every minute detail. All that was intended by or could have been expected of the legislature in this regard, would be to confer upon the court such general powers by express legislation, as,.when supplemented by such as will benecessarily implied, will attain the purposes of county government, and secure its efficient and economical administration.

Applying these principles to the question under consideration, and it seems to us that the commissioners’ court had the implied power to contract for the postponement of this indebtedness, by agreeing to pay interest as a consideration for the delay. It will not be controverted that the waiving of this right to pay county tax with scrip was not a sufficient consideration to support the promise of the county to pay legal interest. Therefore the simple question, disrobed of all other difficulties, is as to th^ power of the court to make the contract. In the case of San Patricio County v. McClane, decided at the present term of the court, it was held that the commissioners’ court did have the power to issue county warrants that bore interest, where the parties had contracted for that kind of paper.

It should be borne in mind that the indebtedness thus sought to be postponed was legal and subsisting, and no question arises as to the power of the court in creating the same.

Interest, as defined by statute, is the compensation allowed by law or fixed by the parties to a contract for the use, forbearance or detention of money. As a matter of right, the party to whom scrip is issued is then entitled to the money. These warrants are drawn upon the county treasurer, upon the theory that there is money in hand to pay them when presented. The delay in their payment grows out of the necessities of the case, because there is no money in the treasury that can be used for that purpose, and it can only be obtained by the exercise of the taxing power, within the constitutional limitations and according to statutory provisions.

In all this one fact is prominent, and that is, the citizen to whom scrip is issued is delayed in getting the money that is then due him from the county; in other words, the county detains the money to Avhich the citizen is justly entitled. How, whether the warrant or the order allowing the claim is the evidence of the debt is immaterial, for such a transaction between individuals would entitle the creditor to legal interest on the principal debt. There is no express provision of • law that exempts county Avarrants or scrip' from the operations of the statute regulating interest. Public policy and usage, to prevent embarrassment in. county matters, and complication and confusion in its financial accounts, relieves the. ordinary county indebtedness, in the absence of a contract to the contrary, from the burdens of legal interest.

Ho sufficient reason is perceived for holding that the commis•sioners’ court did not have the posver to bind the county to pay interest as a consideration • for the postponement of their county urarrants.

We conclude that the order of the commissioners’ court of Galveston county, providing for the registration of scrip, and making the same bear legal interest from date of registration, and providing that it should not be received in payment of county tax, was not void; and that the ad valorem tax of three cents on the one hundred dollars’ worth of property, levied by order of the commissioners’ court to ¡iay this county indebtedness, was valid. And if it should be conceded that this conclusion is wrong, then from the manner in which the various items of county taxes were levied by the court, the tax complained of as illegal was susceptible of being readily distinguished from the legal tax, and therefore the appellant, in any event, could only recover the amount of the illegal tax paid by him to the appellee. Dean v. Lufkin, 54 Tex., 265; Cooley on Taxation, p. 277, note 2.

[Opinion approved January 21, 1883.]

We conclude, and so report, that the judgment ought to be affirmed

Affibmed.  