Smith v. Reaves

The appellants appeal from a judgment refusing an application for an injunction to restrain the appellees, who are the county judge and members of the commissioners court, from issuing certain described bonds for the improvement of a public highway. The petition alleged, in substance, First, that the order authorizing the election was void for uncertainty because it authorized the holding of an election to determine whether or not bonds should be issued for the purpose of constructing, maintaining, and operating gravel roads, or in aid thereof; second, that the order of the court was void because it did not properly describe the territory, certain calls being omitted from the description; third, the order of the court authorized the issuance of $45,000 in bonds, which exceeded the constitutional limit for that territory; fourth, the order of the court specified that the bonds were to be issued for the purpose of constructing, maintaining, and operating gravel roads, or in aid thereof, while it was the intention of the court to use all the bonds for improving only one road.

At a preliminary hearing the district judge refused the injunction, upon the ground that the petition was upon, its face legally insufficient. It appears from the averments of the petition that at the time it was filed the bonds referred to were in the hands of the Attorney General for examination, as required by article 632 of the Revised Civil Statutes. Article 619 makes it the duty of the Attorney General to inquire into all the proceedings relating to the issue of such bonds for the purpose of ascertaining whether or not they have been issued in accordance with the existing law. The very questions raised by the appellants in their petition will be passed upon by him. Without his approval the bonds cannot be put on the market. Until he has acted otherwise we cannot assume that he will ignore any legal or constitutional defects that will invalidate the bonds. We therefore conclude that this suit is premature, and for that reason alone the court properly refused to grant the writ.

The judgment is affirmed.