Strength v. Black , 226 S.W. 758 ( 1920 )

The appellants insist that the appellees were not entitled to the injunction granted in this case, because the order of the commissioners' court of April 14, 1919: (1) Was not a part of the order for the election to determine whether or not the bonds should be issued; (2) was only a conditional order before the bonds were voted and issued, and was not an authorized exercise of the power of the commissioners' court; and (3) the discretionary power conferred upon the commissioners' court to determine the roads to be improved with the proceeds of bonds cannot be interfered with by injunction.

The order of April 14, 1919, on which this suit rests, was made by the commissioners five days before the day of election on April 19, 1919. The order, it appears, "was never published as a part of the election notice or election proceedings." The election as originally entered and officially published stated the purpose of the election to be:

"To determine whether or not the bonds of said county shall be issued in the amount of one million, seven hundred and fifty thousand dollars for the purpose of purchasing or taking over the improved roads already constructed in said road districts, and of further constructing, maintaining and operating macadamized, graveled or paved roads and turnpikes throughout said county."

The statute requires that the proposition to be submitted for the issuance of the bonds shall distinctly specify the purpose for which the bonds are to be issued, and that notice of such election shall be given. Articles 606 and 629, Rev.Civ.Stat. And it has been held that the purposes of the election should appear in the official election notices. Grayson County v. Harrell, 202 S.W. 160. In this view it cannot, under the facts, be held that the order of April 14, 1919, legally constituted a part of the purposes of the election voted on by the county. The appellees, though, assert that they and others were induced to vote for the bond issue on the faith of the order of April 14, and that the same should be held to be a part of the purpose of the election. We think it has been contrarily held, in virtue of the statutes, in this state, in Grayson v. Harrell, supra. In that case it is said:

"The voters can have no official notice or knowledge of the proposition submitted to them, except as contained in these proceedings, which are the means designated by law of declaring and making known to the voters the proposition on which they are voting. It would be dangerous to hold that the commissioners' court could recite in its order for the election one purpose or proposition, and by some other action or order, not made a part thereof, and not referred to in the official notice of election, inject into the proposition limitations or conditions so that the actual result of the election would be to carry a different proposition from that actually voted on according to the official record and notices of the proposition submitted."

Consequently, as the order of April 14 was not legally a part of the order and notice of the election, the right of appellees to the relief granted must depend upon the validity of that order in other respects. The order stated that "if the bond issue should carry," then the particular roads named should be improved. The language would indicate that the order was intended only as a provisional and conditional one. And it was made and entered before the bonds were authorized to be issued by a vote of the county. The statute provides that the bonds can issue only after the election authorizing them. Articles 605, 619, Rev.Civ.Stat. The commissioners' court can amend, alter, or repeal the order, even if valid; and, having this power, the courts cannot enjoin their discretion or judgment. The law constitutes the commissioners' court as a board to designate the particular roads of a locality to be improved, and they have the power to change a previous order at any subsequent time, if fairly done, and no previous contract would prevent. Grayson County v. Harrell, supra; Tyree v. Road District,199 S.W. 648. It is therefore concluded that the judgment of the trial court was erroneous, and should be reversed and here rendered in favor of the defendants, with all costs of suit.

The writer, though, does not agree that the order of April 14, 1919, may not in this case be held to be a part of the election proceedings, and not a subject-matter of injunction. The order of the court and the published notices of it designated the purpose of the proposed bond issue of constructing and maintaining macadamized or graveled roads "throughout said county." "Throughout said county" is a general term, and means in every part of said county. And it became the duty of the commissioners' court, which they could not depart from to expend the proceeds of the bonds "throughout the county." Moore v. Coffman. 200 S.W. 374. The northwestern commissioners' precinct, here involved, as well as all the other precincts, was entitled to some of the proceeds, equitably distributed, for road improvement. Article 6949, R.S. The order of April 14 merely named and designated certain particular roads to be improved, which, as shown in point of fact, were located in the northwestern commissioners' precinct of the county. And neither does the order of April 14 operate in point of fact or in words to exclude other roads of the several precincts of the county from receiving the proper proportion of the bond issue for road improvement. It is clearly within the general power of the commissioners' court to select the particular roads to be improved in each part of the county. Therefore this order of April 14 was not in point of fact or in words contrary to or contradictory of the former order of the court, but legally within its terms. The trial court found that this order in controversy "is unrepealed, and has not in any official manner been modified or altered by the commissioners' court." And as the order was put of record, as required by article 2276, R.S., and intended to be a supplementary part of the election, and being consistent with the order of the election and the notice of it, the trial court, I think, correctly held the order valid. Scott v. Forrest, 192 S.W. 691. I think the judgment should be affirmed.

In accordance with the opinion of the majority of the court, the judgment is reversed, and here rendered in favor of the appellants, with all costs of court.