FOARD COUNTY v. SANDIFER, 151 S.W. 523

BROWN, C. J. This suit was instituted in the district court to recover of said county reasonable compensation for selling the school lands of said county under this contract: “This order entered into the 13th day of February, 1909, by and between the commissioners’ court in and for Foard county, Texas, parties of the first part, and C. P.

Sandifer, of Foard county, Texas, party of the second part, witnesseth: That the parties of the first part have this day listed for exclusive sale with the party of the second part for a term of six months from date herewith the following described property, to wit: 17,712 acres of land the same being Foard county school lying and being situated in Bailey county, Texas, at and for the sum of $4.00 per acre with five per cent, interest from date payable annually or semiannually, said price being net to the county of Foard, state of Texas, and payable twenty years from date of sale with option to the purchaser to pay any part or all the principal at or on any interest paying period after ten years from date of sale.

It is also understood and agreed that the sale of the above described land is to be made subject to a lease now on said land which expires on the 30th day of September, 1913. The party of the first part agrees to deed said land in subdivisions, provided the party of the second part thinks necessary to do so in disposing of the said land to the better advantage to the county.” The agreement was entered upon the minutes of the county court of said county, and signed by the county judge and commissioners and by Sandifer. There is no complaint as to the regularity of the making of the agreement.

Within a short time Sandifer sold the land to G. T. Oliver, 17,712 acres of free school land, for the sum of $119,556.00, with interest from April 14, 1909. The sale was duly consummated, and the land conveyed to Oliver. Sandifer claimed as his commission 5 per cent, on the amount the land sold for. The county resisted the recovery on two grounds, to wit: First. The contract created a debt upon the county and made no provision for its payment, which was in violation of

section 7 of

article 11 of the Constitution, which reads: “But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made at the time of creating the same, for levying and collecting a sufficient tax, to pay the interest thereon and provide at least two per cent, as a sinking fund; and the condemnation of the right of way for the erection of such works shall be fully provided for.” Second. That the contract provided for payment out of the proceeds of the school land, which was in violation of the law.

The district court gave judgment for the county, from which Sandifer appealed to the Court of Civil Appeals of the Second Supreme Judicial District, which reversed the judgment of the district court, and remanded the cause for another trial. The county applied for a writ of error to this court upon the ground that the decision of the Court of Civil Appeals practically settles the case, and the writ was granted upon that ground. Judge Ode Speer, who wrote the opinion, correctly announced the law, but overlooked the requirements of

article 1639, Revised Statutes 1911, and announced no conclusions of fact, which is very important to this court in reviewing the judgment. We will not send this case back, because the facts are practically undisputed. If they were not, it would be necessary to return the record for a compliance with the said article. We were inclined to hold that the terms of the order entered created a debt within the meaning of the

section of the Constitution above copied. But we find in the statement of facts this evidence, which is not contradicted: “In making our levies and assessments, we generally figure as 'to about what amount we think will be necessary to pay the expenses of the county, and we make the levy so as to meet the expenses as estimated by us. We have never made a levy at the highest limit which we are authorized to levy.

If we were to make the levy at the limit, that would place enough money in the general fund of the county to pay all the general running expenses of the county, and also pay the amount of commissions claimed by Mr. Sandifer in this suit.” The contract required the sale to be made in six months by July 13, 1909. It was consummated before that time. The claim could have been provided for during the current year by a levy of a tax for that purpose. The power of the county to levy taxes had not been exhausted.

It was necessary that the levy should have been made, and' the test is, Did the county have sufficient power to pay the claim? There is no denial of that fact, which was proved, as was shown, by the evidence of Burk, the county judge of Eoard county. In City of Corpus Christi v.

Woessner, 58 Tex. 467, Judge Stayton said: “We are of the opinion that the issuance of warrants on current expenses of a city, which do not exceed the current revenue derived from taxation, permitted by law to be levied to meet current expenses, and such other revenue as a city may have from other sources than taxation, cannot be said to be the creation of a debt prohibited by law unless a special tax be levied to meet the interest and create a sinking fund.

The evidence shows that the revenue of the city for the year 1879, if it had been applied to proper municipal purposes, would have been more than sufficient to meet the payment of the warrants sued upon, after paying all other current and proper expenses. And it further appears that in addition to the money raised by taxation, permitted by law to meet current expenses, the city has an income of $4,-000 per year for many years to come from her wharf interests, and that from, these two sources at the time of the trial of this cause there was a surplus in the treasury.” We cite Terrell v. Dessaint, 71 Tex. 770, 9 S.

W. 593; McNeal v. City of Waco, 89 Tex. 83, 33 S. W. 322; City of Cleburne v. Cleburne Water Co., 14 Tex. Civ. App. 229, 37 S. W. 655. In McNeal v. City of Waco, 89 Tex. 88, 33 S.

W. 324, by his irresistible logic, Judge Den-man reaches this conclusion: “We conclude that the word ‘debt,’ as used in the constitutional provisions above quoted, means any pecuniary obligation imposed by contract, except such as were at the date of the contract within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year or out of some fund then within the immediate control of the corporation.” The commissions in this case were by law made payable out of the county fund.

It became due in the current year, and there was ability in the county by taxation to raise the' fund for its payment. The claim did not constitute a debt within the meaning of the Constitution. Plaintiff in error also asserts that the contract between the county and Sandifer bound the county to pay to Sandifer all of the proceeds of the sale in excess of $4 per acre, which was forbidden by law; the county being required to pay the cost of sale.

The writer was inclined to that view of the contract, but upon further consideration of the facts and the able argument of counsel for defendant in error we conclude that the effect of the language, “at and for the sum of $4.00 per acre,” etc., is to set the minimum price for which sale might be made at $4 per acre, and does not mean that the school fund should receive no more than that amount per acre. The law forbids the county to pay the cost of selling out of the school fund either in land or the proceeds of it. We must presume that both parties knew the law and intended to obey it. Tomlinson v.

Hopkins County, 57 Tex. 575. It is a well-established rule of construction that language in a contract which is susceptible of two constructions, one of which would render the contract illegal, and the other would make it lawful, that contract which would conform the contract to the law must be adopted. Clark on Contracts, p. 593; Evans v. Pike, 118 U. S. 241, 6 Sup. Ct. 1090, 30 L. Ed. 234; Hobbs v. McLean, 117 U. S. 576, 6 Sup. Ct. 870, 29 L. Ed. 940.

The rule of construction is stated by Clark thus: “Where a particular word, or the contract as a whole, is susceptible of two meanings, one of which will render the contract valid, and the other of which will render, it invalid, the former will be adopted so as to uphold the contract.

Thus, where a document was expressed to be given ‘in eonswjeration of your being in advance’ to a person, and it was argued that this showed a past consideration which would not support the promise, the court held that the words ‘being in advance’ might mean a prospective advance, and be equivalent to ‘in consideration of your being in advance,’ or ‘on condition of your being in advance.’ So, also, where a contract is susceptible of two constructions, one of which will render it unlawful as being in violation of law or contrary to public policy, that construction which will render it lawful will be adopted.” The fact that the land was to be sold on credit for a time not less than ten years, and no provision made for any cash payment, excludes the construction that compensation was to be made from the proceeds of the sale.

See authorities last above cited. The construction which makes the contract legal is most consistent with the facts, and must be adopted. If the commissioners’ court had in plain words agreed to pay Sandifer a part of the proceeds of the sale of school land, that body would have violated the law. We must presume that a violation was not intended. The decisions of this court which were made before this contract was made are so plain that they could not have been misunderstood, if known to the parties, and the law conclusively presumes that they were known. Tomlinson v. Hopkins, supra.

We conclude that the contract between the parties limited the minimum price to $4 per acre, and that the compensation to be paid was not fixed by the terms of the written contract. The compensation for making the sale was fixed by law at a reasonable sum, considering all of' the facts. Quite a number of witnesses testified that 5 per cent, on the gross sale was a customary and reasonable consideration for services rendered by Sandifer to Foard county, and there does not appear to be a conflict on that issue.

Plaintiff in error has requested this court to take jurisdiction because the judgment of the Court of Civil Appeals practically settles the case, which calls upon this court to enter final judgment. It is therefore ordered that the judgment of the Court of Civil Appeals reversing the judgment of the district court is approved; and it is further ordered that the defendant, C. P. Sandifer, have and recover of and from Foard county the sum of $5,977.80, together with all costs of suit.