Garza v. City of Robstown , 1972 Tex. App. LEXIS 2558 ( 1972 )

OPINION

NYE, Chief Justice.

This is a suit by a taxpaying citizen of the city of Robstown complaining of the Mayor, the City Council and members of the Board of Trustees who operate the Robstown Utility System. The defendants filed their motion to dismiss the suit, contending that the suit was in the nature of an election contest and that the same issues had been determined in a separate suit that was finally determined on appeal. The trial court dismissed plaintiff’s suit for want of jurisdiction. Whereupon appellant appeals to this Court.

The appellant as plaintiff alleged that he is a resident taxpaying citizen of the City of Robstown. He complains of the same named defendants in a previous appeal. Garza v. Dare, 475 S.W.2d 340 (Tex.Civ. App. — Corpus Christi 1971, n. w. h.). He alleges that the utility system is controlled by a board that he refers to as the “Robs-town Utility System”. He alleges that on June 7, 1971, the City of Robstown held an election in which a majority of the persons voted for the issuance by the City of revenue bonds totalling $1,200,000.00 which authorized the City to impose upon the Robs-town Utility System and its revenues, a lien to secure the indebtedness that will be created by such bonds when they are issued. In paragraph 7 of his petition he states that the City of Robstown and its officials (the defendants herein) “unless restrained by this Court (the trial court) as hereafter requested, intends to issue, and will issue, the aforementioned revenue bonds authorized by said election. The issuance by said City of said bonds, or any of them, would be an illegal act outside the statutory authority of said City.” He contends that the power to call the election rests solely in the “Robstown Utility System board” and “. . . for that reason the said City lacked power to call said election and as a result said City lacks authority under the law to issue any of the aforementioned bonds . . . .” He further states that the plaintiff in his capacity as a “taxpaying citizen of Robstown”, seeks to restrain the officials of the City from doing an illegal and unauthorized act, i. e. the issuing of the bonds which were authorized by the election.

Appellant in his brief states that his basic contentions are outlined in the preceding paragraph 7 of his original petition. He insists that the only governmental agency with the power to call the bond election was the “utility board”; that the City in calling the election acted ultra vires and wholly without authorization of any law within this state; and that he as appellant and in his capacity as a citizen and taxpayer can show that he has a justiciable interest sufficient to authorize him to prosecute this suit and to stop the City from engaging in its illegal and unauthorized conduct. Citing Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916). This case concerns the question of whether the State Democratic Executive Committee may be restrained from placing a nominee that it has indorsed, on the ballot. It is not a case that challenges the validity of an election or the authority of a utility board to call an election. This authority is not in point.

It is clear to us that the appellant is attempting, by a collateral attack, to contest the election held by the City of Robs-town for the issuance of revenue bonds. Where one attacks the validity of an election as a subject matter of his law suit, such suit is denominated an election contest. Clary v. Hurst, 104 Tex. 423, 138 S.W. 566 (1911). This being the case, the results of an election that authorizes issuance of revenue bonds cannot be questioned or set aside, absent an election contest suit instituted for that purpose. Art. 9.03 Vernon’s Ann.Civ.St. of the Election Code requires that notice in writing of the intent to contest an election and notice in writing of the grounds that the contestant relies upon, must be given within thirty days after the return day of the election. This was our holding in Garza v. Dare, supra. The appellant admitted that he has not complied with these provisions of Art. 9.03. The district court was therefore correct in determining that it did not have jurisdiction to hear any fact issue concerning any irregularity of the subject election. See Garza v. Dare, and cases cited therein.

Statutes governing the election and issuance of municipal bonds are found in Title 22, Art. 701-842b, V.A.C.S. Art. 702 states that the “governing body” of the city or town shall order the election for the issuance of bonds. Art. 23, Sec. 9, V.A.C.S. defines governing body. It does not make reference to a board of trustees as satisfying the definition of a governing body.

The appellant refers us to Art. 1115, V.A.C.S. as the authority for a board of trustees to have the exclusive power to call the election. We fail to see any mandatory requirement in this Article as suggested by the appellant. The board of trustees is merely an agent of the governing body of the city, town or home rule city and it was never intended that such board be vested with the exclusive authority to call a bond election or to issue bonds resulting therefrom. See Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448 (Tex.Civ.App. — Corpus Christi 1968, n. r. e.); San Antonio Independent School District v. Water Works Board of Trustees, 120 S.W.2d 861 (Tex.Civ.App.— Beaumont 1938, err. ref’d).

We believe that Art. 1112 is most applicable. It states:

“No such light, water, sewer or natural gas systems, parks and/or swimming pools, shall ever be sold until such sale is authorized by a majority vote of the qualified voters of such city or town; nor shall same be encumbered for more than Ten Thousand Dollars ($10,000), except for purchase money, or for extensions to such systems, or to refund any existing indebtedness lawfully created, until authorized in like manner. Such vote in either case shall be ascertained at an election, which election shall be held and notice thereof given as is provided in the case of the issuance of municipal bonds by such cities and towns.”

The bond election was held under the authority of Art. 1111, V.A.C.S. and the succeeding sections. Particularly Art. 1112 above quoted. We find nothing from appellant’s allegations in this suit that would in any way affect the validity of this election.

The City of Robstown filed its motion to dismiss this appeal contending that this Court had already heard and entered a judgment in the prior case (Garza v. Dare, supra), disposing of all of the issues relative to a contest of the said bond election. Appellees argue that the filing of the present suit destroys the meaning and the effect of this Court’s prior judgment, in that the Attorney General will not now approve the revenue bonds of this type so long as their validity are under attack by the pending litigation. 40 Tex.Jur.2d § 572, p. 258; Sec. 3, Art. 1269j-5, V.A.C.S. Although appellant in the present pending appeal was plaintiff in the lower court, he was not one of the actual parties in the prior case, therefore the motion to dismiss the appeal is overruled. However, the attorney who represents the appellant and all of the defendants named in the prior case are all one and the same in this case. Even the present appellant was a witness in the prior case. If an actual interference with the enforcement of the judgment of the prior case of this Court is destroyed by the filing and prosecution of a second suit, it is the duty as well as the right of an appellate court to exercise its original jurisdiction and enforce its judgment. City of Dallas v. Dixon, 365 S.W.2d 919 (Tex.1963). The prosecution of the first and second suit attacks the integrity of the bond election and therefore affects the validity of the bonds and the right to expend their proceeds. We believe the second suit is an interference with our prior judgment.

It is true that we held in the first suit, that the summary judgment evidence conclusively established that the appellants did not bring their suit in the nature of a class action since they did not comply with the provisions of Rule 42, Texas Rules of Civil Procedure (Class Actions). However, the plaintiffs in both suits are all described as “Taxpayers of the City of Robstown”, and represent in effect a high-bred type of a class action. The purpose of which was and presently is to test the validity of the election and to hold up the approval of the revenue bonds by the Attorney General. The description of appellant here and the appellants in the prior suit convinces us that they are one and the same, and they in their capacity are attempting to reliti-gate the same issues as were foreclosed by our decision in Garza v. Dare. Appellant’s attorney has stipulated in the lower court and reaffirmed his agreement here in oral argument that if he is unsuccessful in this suit that neither he nor any of the persons represented by him would make any further attempt to bring subsequent suits to contest the bond election held on June 5, 1971.

We are therefore satisfied that an extraordinary writ will not be necessary for the enforcement of our prior judgment. See City of Dallas v. Dixon, supra.

The trial court was correct in dismissing appellant’s suit. Adamson v. Connally, 112 S.W.2d 287 (Tex.Civ.App. Eastland 1938). The judgment of the trial court is affirmed.