Gordon v. Commissioners' Court of Jefferson County ( 1958 )

¡On Rehearing.

Although we may not have made our own views on the subject entirely clear in the original opinion, there was and is no evidence to show that the county proposes, or has proposed, to undertake purchasing the right of way without the consent of Beaumont’s City Council. There is, therefore, no sound basis for appellants’ contention — made in their motion for rehearing — that, there being no evidence to show that the City Council has consented for the county to purchase the right of way, affirmance of the trial court’s judgment is inconsistent with our conclusion that the Council’s consent to the purchase is a prerequisite to the county’s right to make it. The contention, in final analysis, is but a contention that appellants should have been or should now be, granted an injunction just because there was and is no evidence to show consent by the City Council to the purchase. Quite obviously, therefore, it fails to take into account the fact that it is not the mere absence of a right to act, but one’s proposal to act in spite of such lack of right, that affords grounds for an injunction. The burden of proving the im-pendency of an unauthorized act by the county rested on appellants, and it was not discharged. Not only is there no evidence to show that the county proposes to undertake purchase of the right of way without the City Council’s consent, but the evidence affirmatively establishes that the county officials entertain no such intention.

The remaining points in appellants’ motion for rehearing are believed to have been sufficiently dealt with in the original opinion. We adhere to the views therein expressed, and the motion for rehearing is overruled.