Temple Lumber Co. v. Commissioners' Court of Sabine County , 1922 Tex. App. LEXIS 596 ( 1922 )

WALKER, J.

[1] In this case appellant, as plaintiff, filed suit in the district court of Sabine county against the commissioners’ court and other officers of that county, alleging, in substance, as follows:

(1) That on December 15, 1917, .the county as a whole voted road bonds in the sum of $600,000, and that the bonds so voted were issued and sold, and about $450,000 of such bonds “are now a valid, subsisting, and outstanding obligation against all the property in Sabine county, Tex., as is by law in such cases made and provided.”

(2)“That, disregarding and ignoring the fact that the credit of Sabine county, as a whole, had been loaned and taxes levied to discharge the interest on the bonds as mentioned in the preceding paragraph, and to provide a sinking fund to retire them at maturity, the defendant commissioners’ court, on petition of certain persons representing themselves as resident citizens of Sabine county, and as residing in certain territories described by metes and bounds, praying the said court to designate the territories described in the several petitions as road districts, and to order elections to determine whether or not bonds in said designated sums, bearing interest at the rate of 5½ per cent, per annum, and maturing at such times as might be fixed by the defendant commissioners’ court serially or otherwise, not to exceed 30 years from the date thereof, should be issued and taxes levied to discharge the interest on them and to provide a sinking fund for their retirement at maturity, for the purpose of constructing, maintaining and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof, granted the several petitions in all things as prayed for; that road districts were established by defendant commissioners’ court, and elections ordered, and the amount of bonds named in the several election orders and the dates of the petitions aforesaid were as follows:

March 12, 1921. Road District No. 2 60,000 00

March 19, 1921. Road District No. 3 100,000 00

March 28, 1921. Road District No. 4 140,000 00

March 28, 1921. Road District No. 5 75,000 00

April 1, 1921. Road District No. 6 45,000 00

May 8, 1921. Road District No. 7 15,000 00

April 11, 1921. Road District No. 8 2,000 00

April 29, 1921. Road District No. 9 20,000 00

May 6, 1921. Road District No. 11 60,000 00

May 7, 1921. Road District No. 12 60,000 00

Total $637,000 00

(3) “That elections have been held in all of said districts except Nos. 7, 9, 11, and 12, and that defendant commissioners’ court has declared the elections in road districts Nos. 1, 2, 3, 4, and 5, favorable to the issuance of bonds as set out above, and ordered that same be issued; that the result of the elections'in road districts Nos. 6 and 8 have not yet been declared, but plaintiff is informed and believes, and upon such information and belief alleges, that if said elections are favorable to the issuance of bonds as set out above that defendant commissioners’ court will so declare and order bonds issued accordingly; that all of said petitions and orders entered in pursuance thereto, and all notices and sheriff’s returns, are recorded in the minutes of defendant commissioners’ court, to which reference is here made for all purposes, and copies of all of said petitions, orders, etc., accompany this petition, except orders declaring the results of elections in road districts Nos. 4 and.5, for the inspection of the court, but are not attached hereto, nor made a part hereof.”

(4) “That plaintiff is the owner in fee simple of large tracts of land, and is the owner of the timber only on large tracts of land, situated in Sabine county, Tex., in said road districts, as well as a large amount of personal property situated in said county, and the defendant commissioners’ court, if not restrained, will issue and cause to be issued road bonds in all of said road districts wherein orders have already been entered by said commissioners’ court directing the issuance thereof, and will pass all necessary orders directing the issuance of bonds as prayed for in the .petitions in all of such road districts in which elections have already been held and the result thereof has been declared by the said defendant commissioners’ court by orders entered in the minutes of the commissioners’ court to be in favor of said road bond proposition submitted in each district respectively, and that the said commissioners’ court will continue to exercise its power under the law in such cases, and perform all acts necessary and conditions precedent to the issuance of said road bonds in all of said road districts, whereby said road bonds will apparently be authorized and fixed as a valid, subsisting, and outstanding obligation against the property of plaintiff and all others in said districts, and that defendant J. H. Travis, tax assessor of Sabine county, and N. W. Ener, tax collector, will assess and collect taxes on said property, whereby plaintiff will suffer irreparable injury, and that against such acts plaintiff has no adequate remedy at law.”

(6)That by the election held on December IS, 1917, “the taxes of Sabine county were thereby appropriated to the exclusive purpose of paying the interest on said road bond issue for the entire county, and for the creating a sinking fund to retire said bonds at maturity thereof, and that article 3, § 52, of the Constitution of Texas, and the laws in pursuance thereof, do not authorize the subdivision of a county into districts for the purpose of constructing, maintaining, and operating graveled or paved roads and turnpikes, or in aid . thereof, after the county has been lawfully designated as an entirety as a road district, and the bonds in pursuance of such designation are still outstanding and unpaid.”

(6) “That said acts and proposed acts of the defendant commissioners’ court are contrary to article 14, § 1, of the Constitution of the United States, in that they are confiscatory of plaintiff’s property and seek to take the same without due process of law.”

(7) “That said acts and proposed acts of defendant commissioners’ court are illegal and void, and a gross abuse of the discretion of defendant commissioners’ court, because the said road districts have been and are attempting to be established unreasonably, arbitrarily, and without due regard to the establishment of roads from county seat to county seat, as required by law, and without regard to the roads already laid out and established, and that no co-ordinated system of road building is provided for, and that the roads already built will be allowed to deteriorate, damage, and become utterly worthless, and because said road districts are being laid out in such a manner as to discriminate against plaintiff and favor others, and are not being laid out impartially and for the best interest of the taxpayers, and are being laid out so as to injure plaintiff herein.”

(8) “That said elections are illegal and void because it is not shown that publication of said election notices were made 4 successive weeks before said elections, as is required by article 029, Rev. Oiv. St. 1911.”

(9) “That said elections are illegal and void because the sheriff’s returns show that notices were posted 21 full days before said elections, and not for 3 successive weeks before the said election, as is required by article 629, Rev. Oiv. St. 1911.”

(10) “ * * * That, if said 'bonds ordered issued by defendant be permitted, the special road bond issue of Sabine county will be far in excess of the constitutional limitation of article 3, § 52; that, should the elections ordered held in districts Nos. 6, 7, 8, 9, 11, and 12 vote the issue petitioned for by said districts, and said amounts are ordered issued by the commissioners’ court, it would augment the excessive issue of special road bonds for Sabine county to an amount far in excess of the constitutional limitation of article 3, § 52, the total excess being $163,242.50.”

“Wherefore, premises considered, plaintiff prays your honor that your most gracious writ of injunction heretofore granted in this cause restraining and enjoining the said defendant commissioners’ court of Sabine county and W. O. Arnold, county judge, J. A. Ragan, commissioner precinct No. 1, Jerry Ball, commissioner precinct No. 2, S. H. Hall, commissioner precinct No. 3, and A. T. Mathews, commissioner precinct No. 4, as members of the commissioners’ court of Sabine county, Tex., and individually, from levying any tax to pay the interest and to create a sinking fund to retire said bonds and from issuing or causing to be issued, from selling or in any manner causing to be sold, the road bonds of said districts Nos. 1, 2, 3, 4, 5, 6, 7, 8, and from taking any further action whatever in the matter of the issuance of road bonds in any of said districts, and restraining and enjoining said defendant from creating and designating other portions of Sabine county into road districts for elections to be held for special road bond issues, and from levying and collecting any tax therefor for the retirement, or payment of any such bonds, and restraining and enjoining the defendants J. H. Travis, tax assessor of Sabine county, Tex., and N. W. Ener, tax collector of Sabine county, Tex., from assessing and collecting any taxes against any of said road bonds in any of said road districts be made perpetual, and that similar orders be entered as to road districts 9, 11, and 12, and for its costs of suit, and for such other and further relief, special and general, in law and in equity, that it may be justly entitled to.”

Appellee filed a general demurrer and oth-.«r pleas, not necessary to mention. A temporary writ of injunction was issued giving appellant all the relief prayed for. On a trial on the merits this injunction was dissolved, and appellant was denied relief in all the particulars prayed for in its petition.

Judgment was properly entered dissolving the temporary writ and denying a permanent injunction. This suit was prematurely brought. Conceding, as true, all the allegations in appellant’s petition, it did not state a cause of action.

League et al. v. Brazoria County Road Dist. No. 13 (Tex. Civ. App.) 187 S. W. 1012, in which writ of error was denied by the Supreme Court, is a case directly in point, it seems to us, and is an authority against appellant on all contentions made by it on the issues raised by its petition. Speaking for the Court of Civil Appeals for the First Supreme Judicial District, Mr. Justice Mc-Means said:

“August 19, 1915, plaintiffs, J. C. League and others, appellants here, brought this suit against the county judge and county commissioners of Brazoria county and the presiding judge and the judges of election appointed by the commissioners’ court, to enjoin and restrain the holding of an election by the qualified voters in road district No. 13 of Brazoria county to determine whether the bonds of said road district in the sum of $150,000 should be issued for the purpose of constructing, maintaining, and operating macadamized, graveled, or paved roads in said district, and whether a tax should be levied upon the property subject to taxation in said district, for the purpose of paying the interest on said bonds, and to provide a sinking fund for their redemption at maturity. * * *

“We think that the injunction was properly refused, for the reasons: First, that the holding of the election did not, of itself, create any liability upon the appellants, nor operate as an incumbrance or charge upon their property, or in any way interfere with their property rights, and therefore they could not have been harmed in the slightest by permitting the election to be held; second, that if-the law under which the election was sought to be'held is unconstitutional, as appellants contend, then it is void, and any proceedings had thereunder would be void, and could be successfully attacked by appellants at any' time (Parks v. West, 102 Tex. 11, 111 S. W. 726; Cohen v. Houston, 176 S. W. 814); and, third, that the election sought to be enjoined was a political proceeding, and not subject to judicial control (Robinson & Watson v. Wingate, 36 Tex. Civ. App. 65, 80 S. W. 1067; City of Dallas v. Consolidated St. Ry. Co., 105 Tex. 337, 148 S. W. 292). The reasons why an injunction does not lie to restrain the holding of an election, such as the kind under discussion, may be summed up in the conclusion that there is in the performance of these statutory duties no invasion, in a legal sense, of the property rights of the complainants, whether the election is open to attack in other ways or not. Robinson v. Wingate, 98 Tex. 268, 83 S. W. 182. The reasons are elaborated in the clear and able opinions referred to, and further discussion here would only involve the statement 0⅜ additional, or perhaps the same arguments in different form, tending to the same conclusion.”

All the matters complained of by appellant were political in their nature and beyond the control of the courts. When all the political steps have been complied with, then, if the bonds are void, they can, of course, be attacked at any time, or, if only voidable, appellant has a full and complete remedy under the statute.

The trial court filed conclusions of law and fact on tlie issues raised by appellant’s pleadings, finding against appellant on the issues of fact raised by it. In view of the disposition made by us of this appeal, these conclusions should not be sustained, as the facts pleaded do not raise any justiciable issue. We therefore affirm the judgment of the trial court, in so far as it denied the relief prayed for, but set aside, the trial court’s findings of fact and conclusions of law. As so reformed, the judgment appealed from is affirmed.

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