Oden v. Barbee , 103 Tex. 449 ( 1910 )

This action was brought by J.A. Oden et al., alleged citizens of Bailey County, to enjoin an election for the organization of said county, which had been attached to Castro County for judicial purposes. It is alleged that on the 10th day of May, 1909, the Commissioners' Court of Castro County upon a petition signed by John Wilterding and others, asking for an election to organize Bailey County, ordered such election to take place on the 19th day of June, 1909, and for the election of a county site and all county officers. It was also alleged that of the signers to the petition for the election less than fifty were qualified voters of Bailey County and that the remaining signers were women and children and citizens of Kansas and Nebraska, whose names were given. As alleged, the purpose of C.A. Colden, Charles Johnson and others, who procured the order for the election, was to elect Hurley the county site of the county and thereby enhance the value of the lands in that vicinity. It was also alleged that the Commissioners' Court of Castro County adjourned their court before discovering the fraud, but after the adjournment of the court they became aware of it, and becoming apprized of it, on the 2d day of June, 1909, they called a special meeting and undertook to annul the order for the election rendered on May 10 theretofore. But it was also averred that notwithstanding the annulment of the order of May 10, 1909, the election of officers designated by such order was proceeding, and if not restrained an election would be held and establish the county of Bailey, which would result in burdensome taxation upon the petitioners.

The trial court upon exceptions to the petition and a motion to dissolve, dissolved the injunction insofar as it restrained the parties from holding the election for the organization of Bailey County, but continued in force said injunction insofar as it prohibited the Commissioners' Court and the county judge of Castro County from receiving the returns of said election and declaring the result, and issuing commissions to any officer found to be elected.

The relators appealed and the Court of Civil Appeals following the case of Hughes v. Dubbs, 84 Tex. 502, held that the restraining order was rightfully dissolved. It is to be noted that Hughes v. Dubbs arose under a state of facts which occurred before the adoption of the amendment to the Constitution, which was declared adopted September 22, 1891, and that the case was tried as shown by the transcript which we have before us on the 12th day of April, 1889. It is apparent therefore that the amendment of September 22, 1891, cut no figure in the case. In Ex parte Towles, 48 Tex. 413, Chief Justice Roberts says: "The Constitution gives the District Court no general supervising control, by writ or otherwise, over the proceedings of the Commissioners' Court, or any other such courts or inferior tribunals." This was the law at the time the Towles case was decided. But by an amendment to section 8 of article 5 of the Constitution, which was declared adopted September 22, 1891, the following was inserted in that section: "The District Court shall have appellate jurisdiction and general supervisory control over the county Commissioners' Court, with such exceptions and under such regulations as may be prescribed by law; and shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law." At the time this amendment was adopted there had been numerous decisions by the Supreme Court holding that a citizen of a county had no remedy by which he could resist the removal of a county site, and the District Court had recently held that the same rule applied to an election for the organization of a county, namely, that the question was a political and not a judicial one. It seems to us therefore that the main object in the amendment in question, first by answering the objection so often urged, that the District Court had no jurisdiction over the Commissioners' Court and then by broadly providing that the latter court shall have general original jurisdiction, for which a remedy is not provided by law, was to provide that the District Court should have jurisdiction of these cases. It occurs to us that it is an insufficient answer to a citizen and taxpayer of an unorganized county who alleges a fraudulent application to the Commissioners' Court of the present county, by the insertion in the petition of the names of women and children and persons not residents of the unorganized county, the granting of the petition, the attempted repeal of the order, and that notwithstanding such attempted repeal the persons designated to hold the election propose to hold it; and that the result will be to increase their taxes — to say that this is a political question and one that is not cognizable by the courts. What greater wrong can be perpetrated upon the inhabitants of an unorganized county than to organize it without their consent and thus to subject them to the expense of building courthouses and jails and other expenditures necessarily incident to a new organization?

This is not a question of the removal of a county seat, and it may be that if it were the judgment would be correct. But this is a case in which the people of Bailey County are about to be deprived of their election franchise and to be subjected to the burden of taxation against their will.

Accordingly we reverse the judgment of the trial court and of the Court of Civil Appeals and render judgment for the relators against the defendants in error.

Reversed and rendered.