57 S.W. 338
LILLARD 
v. 
FREESTONE COUNTY.
Court of Civil Appeals of Texas.
March 24, 1900.
        Appeal from Freestone county court; H. B. Davis, Judge.
        Action by L. D. Lillard against Freestone county for breach of contract. From a judgment in favor of 
defendant, plaintiff appeals. Affirmed.
        Anderson & Moses and Bell & Williford, for appellant. Boyd, Compton & Anderson, for appellee.
        BOOKHOUT, J.
        This suit was filed in the county court of Freestone county, Tex., on the 22d day of March, 1899, by 
L. D. Lillard against Freestone county, to recover judgment for the sum of $496.50, actual damages, for 
breach of contract. On October 19, 1897, appellant and appellee entered into the following contract: 
"October 19, 1897. It is ordered by the court that the contract for publishing the delinquent tax list as 
required by the Colquitt delinquent tax law, and as now prepared and in the hands of the tax collector, be, 
and the same is hereby, awarded to L. D. Lillard, upon the following terms: Said L. D. Lillard is to do said 
publishing at the legal rate of 25 cents per tract, and is to pay for the material and preparation of the copy 
from which said list is published, and is to have said publication complete in ample time for the county 
attorney to file suit thereon for the February term, district court; and the said L. D. Lillard is to look to the 
delinquent taxpayers for his costs, when paid. The county assumes no responsibility. And it is expressly 
agreed that the county shall not pay, nor be in any way responsible for, any costs or expense in any way 
connected with said publication. It is further required that said L. D. Lillard enter into bond in the sum of 
$500 for prompt and faithful performance of this contract; said bond to be
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approved by the county judge before this contract shall become valid and binding." Appellant alleged that 
he had the copy of the said delinquent tax list prepared, and it was duly certified to by the tax collector as 
being true and correct and complete, etc., and by the county clerk, as required by law, and said copy was 
examined and approved by the commissioners' court of said county, and ordered to be published in said 
Fairfield Recorder, etc. Said tax list or record was correctly published by appellant for three consecutive 
weeks, to wit, April 22, April 29, and May 5, 1898, in said paper. Afterwards it was discovered that the 
publication was illegal, because it did not show all the data required by law. Defendant county had said 
delinquent tax record republished by W. O. Peery, and paid for same. On February 4, 1899, appellant 
presented to the commissioners' court his account for said publication, and asked that it be allowed in the 
terms of his contract,—that is, that the county treasurer be instructed to pay appellant 25 cents per tract, 
as collected,—which said account was rejected by the court on February 21, 1899. All of which exhibits 
were a part of appellant's petition. Appellee answered by general and special exceptions, by general 
denial, and by cross bill alleging that said contract between appellant and appellee of date October 19, 
1897, was illegal and void, and asked that defendant county have judgment against said appellant to 
recover back $40 paid to appellant by appellee for other tax-list advertising theretofore made; also, that 
on August 15, 1898, appellant and one W. O. Peery, acting together, entered into a pretended contract 
with appellee to publish said delinquent tax record at 17 cents per tract, which publication was made, and 
paid for by appellee, appellant drawing the scrip therefor, $445.90; that said contract was illegal, because 
appellant was a member of the 24th legislature when said Colquitt law was passed, and of the 25th 
legislature when same was amended,— and asked for judgment against appellant for said $445.90, also. 
Appellant by supplemental petition excepted generally to appellee's cross action, and denied generally the 
allegations therein contained. The court sustained appellee's general exception, and special exceptions 2 
and 3 and appellant's general exception; and, both parties refusing to amend, the cause was dismissed, 
and both parties excepted and gave notice of appeal, and plaintiff perfected his appeal.
        It is not alleged that appellant ever executed a bond in the sum of $500, and that the same was 
approved by the county judge, conditioned for the prompt and faithful performance of the contract. The 
contract expressly provides that this shall be done before the contract shall become valid or binding. This 
seems to be made a condition precedent to the contract becoming valid and binding, and in failing to 
allege it the petition was subject to appellee's demurrer. The contract also expressly provides that said L. 
D. Lillard "is to look to the delinquent taxpayers for his costs, when paid. The county assumes no 
responsibility, and it is expressly agreed that the county shall not pay, nor be in any way responsible for, 
any cost or expense in any way connected with said publication." The effect of this provision is to relieve 
the county from any liability to plaintiff for the payment of the cost of said publication. But appellant 
contends that "some of the costs due to plaintiff under said contract have been paid to the county 
treasurer of said county, and that other costs will continue to be paid as said taxes are paid, until the 
most or greater part of same shall have been paid," which he claims he is prevented from collecting by 
defendant's wrongful act in refusing to allow his said account. These allegations are insufficient to charge 
defendant for money had and received by its county treasurer for the use and benefit of plaintiff. They do 
not allege the amount so received, or show that the amount is sufficient to confer jurisdiction upon the 
county court. Nor does it set forth any reason for his failure to give the amount.
        Again, appellant contends that "the court erred in sustaining defendant's second special demurrer to 
plaintiff's original petition and dismissing this cause, and in holding that plaintiff was disqualified by law 
from contracting with defendant county for advertising or publishing the delinquent tax record under the 
Colquitt law, passed by the 24th legislature, and amended by the 25th legislature, in both of which 
plaintiff represented Freestone county, because the contract between plaintiff and defendant, herein 
involved, was made in October, 1897, after the expiration of plaintiff's term of office as representative in 
the 24th legislature, and by the amendments in the 25th legislature said law as to the pay for publishing 
the said delinquent tax record was not materially changed and was not increased, and said pay was the 
same as it was originally made in said Colquitt law, and had been for years before; i. e. 25 cents per 
tract." The law known as the "Colquitt Law," relating to the collection of delinquent taxes, was passed by 
the 24th legislature and approved April 13, 1895. Laws 24th Leg. p. 50 et seq. Section 5 of said law 
provides for the publication of the delinquent tax list, and provides that the amount to be received by the 
publishers as compensation shall be the same as is provided by law for like services in other cases. This 
law was amended by the 25th legislature, and the entire law re-enacted, in which it was provided that the 
county shall not allow for said publication a greater amount than 25 cents for each tract of land so 
advertised. The appellant was a member of both the 24th and 25th legislatures. He
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was a member of the 25th legislature when the contract was entered into with Freestone county. By the 
terms of article 3, § 18, of the constitution of Texas, among other things, it is provided, "Nor shall any 
member of the legislature be interested, either directly or indirectly, in any contract with the state, or any 
county thereof, authorized by any law passed during the term for which he shall have been elected." The 
trial court sustained a demurrer to the petition challenging the validity of the contract made by appellant 
with Freestone county under the above clause of the constitution. Appellant insists that his term of office 
as a member of the 24th legislature had expired, and that the amendments to the law made by the 25th 
legislature did not materially change the pay for publishing the delinquent tax list, and hence the above 
provision of the constitution does not apply. We are not willing to admit the contention that, appellant's 
term of office having expired as a member of the 24th legislature, he thereby became authorized to 
contract with Freestone county, by virtue of a law passed by that legislature. We think it apparent that the 
intention of the above clause of the constitution was to absolutely prohibit any person from entering into a 
contract with the state or county authorized by a statute passed by a legislature of which such person was 
a member. Such being the case, the intention should be given effect. Cooley, Const. Law, p. 69; Story, 
Const. § 413; Rawle, Const. ch. 1, p. 31; Potter's Dwar. St. p. 659. We are of the opinion that the 
contract was prohibited by reason of the appellant having been a member of the 24th legislature. The law 
was amended and reenacted as a whole by the 25th legislature. The fees for publishing the delinquent tax 
list were changed. It may be the change was slight, but, whether a change was made at all in this respect, 
we think the entire law, having been re-enacted as a whole, was "passed," within the meaning of article 3, 
§ 18, of the constitution, and that under said section plaintiff could not make a valid contract with 
Freestone county, authorized by the provisions of said law. We conclude that the court did not err in 
sustaining the exceptions to the petition, and the judgment is affirmed.