The CITY OF BRYAN, Petitioner, v. C. B. MOEHLMAN et ux., Respondents, 282 S.W.2d 687

CULVER, Justice. The City of Bryan instituted in the County Court of Brazos County proceedings to condemn a strip fifty feet wide out of land belonging to respondents, Moehlman and wife, for street purposes under the right of eminent domain. The parties failing to agree, the County Judge on August 17, 1954, appointed, under the provisions of

Article 3264, V.A.C.S., three special commissioners to assess the . damages. The commissioners after a hearing made an award of $200. The amount of this award was paid into the registry of the court. The City promptly entered into .possession and began to clear and grade the strip.

Thereafter on September 2nd respondent filed suit in the District Court of Brazos County seeking an injunction and damages against the City alleging that the county court proceedings were null and void on two grounds: (1) that two of the commissioners appointed, Williamson and Halsell, were not “disinterested freeholders” as a matter of law for the reason that they were 'duly appointed, qualified and acting members of the Board of Equalization for the 'City of Bryan for the year 1954; (2) that the City of Bryan had not páid into the registry of the court the court costs which had been awarded against it as provided by subd. 1, Art. 3268.

Upon a hearing the District Court dissolved the temporary restraining order granted' and dismissed the cause. ' On appeal the Court of Civil Appeals reversed, 276 S.W.2d 414, holding the condemnation proceeding, to be void for the reasons asserted by' the respondents. We-■think the trial court’s dismissal was correct, and the judgment of the Court of Civil Appeals is therefore reversed. At the outset the respondents relied: strongly on Lone Star Gas Co. v.

City of Fort Worth, 128 Tex. 392, 98 S.W.2d 799, 109 A.L.R. 374, and say that they “have predicated their entire action in the district court and their conduct in this entire matter on the statements made and the authorities cited by Judge German” in that case. The holding by Judge German was to the effect that if the condemnation proceeding is void the district court may properly issue the injunction. In that case no question was raised as to strict compliance'with prescribed condemnation procedure. There was just no procedure provided by law to condemn and appropriate the property of the Lone Star Gas Company.

The court held that until such procedure was established by law, the city could not condemn. Petitioner City asserts that the Court of Civil Appeals erred in three respects: (1) in failing to hold that the respondents had an adequate remedy at law by appeal to the county court and thence to the Court of Civil Appeals; (2) in holding th.at the commissioners were as a matter of law not “disinterested freeholders”; (3) in holding that the failure of the City to pay the costs prior to entering upon and taking possession of the premises rendered the proceeding void.

The question of the asserted disqualification of the commissioners appointed to value land in condemnation proceedings has been the subject of appeal in several cases. McInnis v. Brown County Water Improvement Dist., Tex.Civ.App., 41 S.W.2d 741; Cox v. Brown County Water Improvement District, Tex.Civ.App., 45 S.W.2d 1118; Schooler v. State, Tex.Civ. App., 175 S.W.2d 664, er. ref., w. o. m. W.e have been cited to no authority holding that the disqualification of such a special commissioner would render the proceeding void or subject to collateral attack. Very much in point is the case of Gulf, C. & S. F. Ry.

Co. v. Ft. Worth & R. G. Ry. Co., 86 Tex. 537, 26 S.W. 54. In that case under somewhat similar facts an application in the district court for injunctibn was denied. The Court of-Civil Appeals held [26.S.W. 57]: “ ‘ * * * If the commissioners were disqualified, or there was any other irregularity in the proceedings, appellant’s remedy was adequate and ample by. the proper proceedings in the county court to contest the award of the commissioners, and by appeal, if necessary. * * *»»

In affirming that decision Justice Brown wrote [26 S.W. 60]: “ * * * It is alleged that plaintiff did not’know of the disqualification of the commissioners at-the time of the trial. But we find in the petition for injunction, filed on the 7th day of August, four days after the award was filed, substantially the same allegation as a ground for holding the award void.

Under the law, the award could not be made the judgment of the court until after the, expiration of 10 days from the time it was returned into court, and, during that time, plaintiff, by filing objections to it, would have been entitled to a trial de novo before a jury, by which objections it would have set aside the award, and thus have secured ample protection before the county court, with the right of appeal to the court of appeals if its rights were not fully protected by the judgment of the coünty court.

Having failed to avail itself'of so simple and effective a remedy, we: see no reason why the rules" of law by which such proceedingfe are held’ to be binding upon parties to them, when duly notified, should be departed from; and a collateral attack allowed to-be made upon the proceedings of a court of competent jurisdiction. * * *» - ' We therefore hold that the respondents had an adequate remedy at law in the county' court and by appeal therefrom.

It developed in the hearing before the district court that the petition for injunction had-been;filed two days after the date of the award and as soon as attorney, for respondents learned of the fact that two of the commissioners were members of the City Board of Equalization for 1954. The record shows that the Board of Equalization had reviewed all of the values individually and collectively and had adjourned on June 24, 1954, and there has been no meeting of the Board since that time. The members of the Board by authority of the City Commission were paid in full for their services on June 23, 1954.

The Tax Assessor and Collector of the city had prepared the assessment rolls on the basis of the findings of the Board of Equalization and the tax levy had been apportioned by the city commissioners for the current year on July 9, 1954. Two members of the Board of Equalization who had served in preceding years testified that the same procedure was followed in 1954 as in the preceding years and the Board was not called upon to perform any duties after the preparation of their report and final adjournment.

Respondents introduced in evidence certain provisions of the city charter pointing out some more or less formal duties that had not been performed by members of the Board of Equalization. The principal omission seems to be that the tax rolls, after completion by the Tax Assessor and Collector, were not thereafter presented to the Board of Equalization for its approval and certification. It does appear, however, that all of the duties that the Board performed for the City of Bryan during the year 1954 had been completed on June 24th. Moreover a board of equalization is a quasi judicial body. Victory v.

State, 138 Tex. 285, 158 S.W.2d 760. The members of the board, although appointed, must act independently in the performance of their duties and are not subject to control or supervision by the city authorities. We believe, therefore, that they are not disqualified as a matter of law. We are equally convinced that the failure on the part of the City to deposit the amount of costs at the time it paid the award is not such an irregularity or noncompliance with the statute that would render void the entire proceedings. In Susholtz v.

City of Houston, Tex.Com.App., 37 S.W.2d 728, it was held that the payment of costs is for the benefit of the officers of the court and not for the benefit of the property owners and that the entry of the City of Houston on the land was not unlawful even though the city did not file a cost bond. While the court was there construing a provision of the city charter, the principle involved is the same as here. The Susholtz decision was followed by the Court of Civil Appeals in Sherrill v. Brazos River Transmission Electric Cooperative, Inc., 263 S.W.2d 669, error ref., n. r. e.

We recognize the rule expressed in Wilbarger County v. Hall, Tex.Com.App., 55 S.W.2d 797 and other cases cited by respondents that in condemnation proceedings the requirements of the statutes are to be strictly followed. This rule is for the benefit of the landowner. Here the statute was strictly complied with in all respects in so far as the protection of the landowner was concerned. Finally, respondents raise the question of the jurisdiction of the county court of Brazos County to try condemnation proceedings under the right of eminent domain.

This jurisdictional question is somewhat confused but from a review of the legislative enactments we believe the county court does have jurisdiction of condemnation proceedings and not the district court. Session Laws, 1917, 35th Leg., Ch. 96 established the 85th Judicial District composed of Brazos and Robertson Counties.

Section 11 of that

chapter sets out the jurisdiction of the county court of Brazos County as covering probate matters, administration of estates, appointment of guardians, issuing of necessary writs and punishment for contempt and concluded “and the said county court of Brazos County shall have no other jurisdiction civil or criminal.”

Section 12 provides that “the District Court of Brazos County * * * shall have and exercise jurisdiction in all civil and criminal matters and causes over which by the laws of this State the county clerk (sic) of said county would have jurisdiction, * * except as provided in this Act, and the same are hereby transferred to the District Court of said Brazos County * * The 1925 revision changed the act to read as follows, Art. 199, subd. 85: “The District Court of said Eighty-fifth Judicial District shall have all the powers and jurisdiction as district courts by and under the Constitution and laws of this State, and in addition thereto shall have and exercise jurisdiction in all civil and criminal matters and causes over which by the laws of this State the respective county courts of Robertson and Brazos Counties shall have jurisdiction, original or appellate, except as provided by law, and the same are hereby transferred to the District Court of said counties.” [Acts, 1917, p. 256.] The 48th Legislature amended subdivision 85 of Art. 199 so as to change the time and terms of holding the 85th District Court in Robertson and Brazos Counties and omitted any reference to the jurisdiction of that court or of the county court of Brazos County, Art. 199, subd. 85, V.A.C.S.

Art. 1960, V.A.C.S., provides: “Where the jurisdiction of a county court has been taken away, altered or changed by existing laws, the same shall remain as established, until otherwise provided by law. Jurisdiction shall obtain in all matters of eminent domain over which the county courts have jurisdiction by the general laws of this State. Acts 1885, p. 77; G.L. vol. 9, p. 697.” We hold that this statute controls and that jurisdiction lies in the county court of Brazos County in matters of condemnation under the right of eminent domain. Missouri-Kansas-Texas R. Co. of Texas v.

Jones, Tex.Com.App., 24 S.W.2d 366; Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 14 S.W.2d 266, 17 S.W.2d 774; Southern Kansas R. Co. of Texas v. Vance, 104 Tex. 90, 133 S.W. 1043. The judgment of the trial court in dismissing this cause is affirmed and the judgment of the Court of Civil Appeals is reversed. . Gen. & Spec.Laws, Reg.Sess., 48th Leg., (1943), Ch. 36, p. 39.