Hovey v. Shepherd , 105 Tex. 237 ( 1912 )

This is an original proceeding in this court wherein Relators seek to have a writ of prohibition issued to respondent, James L. Shepherd, Judge of the 32nd Judicial District of Texas, commanding him to desist from further interference with or hindrance to the enforcement of a judgment of this court, entered on May 31st, 1911, in a cause then pending in this court, No. 2212, The Kansas City, Mexico Orient Railway Company of Texas v. City of Sweetwater, which by writ of error to the Court of Civil Appeals of the Second District had been removed into this court for revision. The said Railroad Company had been by a writ of injunction granted by respondent, Shepherd, forbidden to remove its offices, shops, etc., from Sweetwater to San Angelo. The injunction was made perpetual by the judgment of the District Court of Scurry County (the venue having been changed), which judgment was affirmed by the Court of Civil Appeals of the Second District. This court reversed the judgments of the District Court and the Court of Civil Appeals and rendered judgment that the City of Sweetwater take nothing and that the railroad company and the other plaintiffs in error go hence without day, etc. The motion for rehearing was filed in this court on the 15th day of June, 1911, and was overruled on the 25th day of that month.

On the 6th day of June, 1911, Interveners S.A. Cole, R.A. Ragland, J.H. Beall and Ellis Douthit, filed a petition in the District Court of Nolan County against the relators in this proceedings, praying for a writ of injunction forbidding them to remove the offices, etc., before described, from the City of Sweetwater, and on the same day the Honorable James L. Shepherd granted the writ without a hearing. Relators moved to dissolve the injunction, which motion the judge overruled, from which order relators appealed to the Honorable Court of Civil Appeals of the Second District, which court reversed the interlocutory judgment and dissolved the injunction. The case was remanded to the District Court of Nolan County. The plaintiffs in that suit (interveners) gave notice to relators to appear before the Honorable James L. Shepherd on the 18th day of April, 1912, to answer another application for a writ of injunction to the same purpose as that dissolved; whereupon the relators applied to this court for a writ of prohibition to prohibit and forbid the said James L. Shepherd, and the interveners herein, to hinder or prevent the railroad company or its officers to remove said shops, etc., as by the judgment of this court the railroad company was authorized to do.

The authority of this court to issue the writ is conferred by this provision in the 3rd section of Art. V of our State Constitution:

"The Supreme Court and the justices thereof shall have power to issue writs of habeas corpus as may be prescribed by law, and under such regulations as may be prescribed by law the said court and the justices thereof may issue the writs of mandamus, procedendo, certiorari, and such other writs as may be necessary to enforce itsjurisdiction."

It is unnecessary for us to look carefully for the need of such process in this case, for the action of the plaintiffs in the new suit in seeking an injunction against the enforcement of the judgment of this court while that case was yet under our control manifesting a disregard of and contempt for law, and the swift compliance of the judge in granting the injunction without a hearing, were sufficient to admonish this court that its authority must be exercised promptly and firmly to maintain the dignity of the State's Judiciary. The writ of prohibition is the only effective preventive remedy appropriate to the conditions which confront us, therefore, we have authority to use it to guard and enforce our jurisdiction.

This court will not issue the writ, notwithstanding the hasty and unlawful action of respondent, unless the facts and law establish beyond a reasonable doubt that interveners are barred of any right in the maintenance of the offices, etc., at Sweetwater by the judgment of this court. If they are concluded by that judgment, it will be sustained and enforced.

The interveners were not parties to the suit of the City of Sweetwater v. The Kansas City, Mexico Orient Railroad Company at the time the judgment of this court was entered, but they were citizens of that municipal corporation, and the important question in the case is reached by the announcement of the well settled proposition of law that, if the matter adjudicated affected the interest of the public as distinguished from the private interest of the citizens of the city, although not parties to the suit, all citizens are concluded thereby. Cannon v. Nelson, 83 Iowa 242; Clark v. Wolf, 29 Iowa 197; 2 Black on Judgments, sec. 584; McEntire v. Williams, 63 Kan. 275; Sampson v. Com'rs, etc., 115 Ill. App. 443.

To make a proper application of the rule of law to this case we must ascertain what issues were decided by the judgment of the Supreme Court and the issues presented by the interveners in their last petition.

The City of Sweetwater filed its third amended original petition in the first suit and for cause of action alleged, in substance, the organization by Irving Wheatcroft and others of the Colorado Valley Railway Company. That thereafter a mass meeting of the citizens of Sweetwater appointed a committee, who, acting for the city and its citizens, entered into a contract with Wheatcroft, who was duly authorized, by which it was agreed for a valuable consideration furnished by citizens of Sweetwater that the charter of said railroad company should be so changed that the road should be constructed to and through Sweetwater, and that its general offices, etc., should be established and maintained at Sweetwater, and the charter was so amended. The petition alleged in detail the acts of the citizens of said town in fulfillment of the said agreement. The acts done by the individuals are alleged to have been done for all of the citizens of the town of Sweetwater.

That petition alleges that the said railroad was put into the hands of a receiver and the property purchased by certain citizens of Sweetwater and reorganized as the Panhandle Gulf Railroad. The purpose was to carry out the contract with the town of Sweetwater and its citizens, and that thereafter the Kansas City, Mexico Orient Railroad Company, being the same in fact as the Colorado Valley — the name being changed — entered into a contract with certain citizens of Sweetwater, who represented the city and all of the citizens of Sweetwater, which was in effect the first contract made with Wheatcroft by which the said railroad company agreed to locate and maintain its general offices, machine shops, etc., at said town. With great particularity the petition alleges the facts which we need not specify, but the substance of the allegations is that the original contract made for all of the citizens of Sweetwater was preserved by being assumed by each succeeding organization of the railroad companies, and that each renewal of such contract was made for the benefit of the town and all of the citizens thereof. In the petition of the private citizens now pending the cause of action is shown to have originated with the contract made with Wheatcroft in 1897, who represented the Colorado Valley Railroad. It is alleged that a committee appointed by a mass meeting of the citizens of Sweetwater made the contract for constructing the road to and through Sweetwater, the terms of which we need not repeat, this being the same contract set up in the first suit. It is distinctly alleged that Wheatcroft contracted with the citizens of Sweetwater through their representatives, the interveners herein, and in the said petition there is not alleged any contract with interveners individually, nor is there alleged any fact showing any right in them except as citizens of the town. The Sweetwater suit was in the interest of the citizens of that corporation, which included the interveners who are plaintiffs in the suit wherein the issue of another writ of injunction is threatened and sought to be prevented. The suit by Sweetwater and the pending suit of interveners is each founded upon the same contracts made for the benefit of the citizens of that city and in each, the same breaches of contract by the railroad are alleged, claiming the same remedy under those contracts, that is, the maintenance of the offices, etc., at Sweetwater, which concerns the public interest. Indeed, there is no relief asked in either case that would not be of general and public interest. If Sweetwater had succeeded the interveners in common with all citizens would have gained what they seek now. If the interveners should succeed in this action, they and every citizen of Sweetwater would gain what was sought in the first action, the maintenance at Sweetwater of the general offices, round-house, etc., of the Kansas City, Mexico Orient Railroad Company. The issues in the two cases are identical, in fact all of the agreements and contracts alleged to have been made were so interdependent that when the agreement claimed to have been made with the city was consummated all others were merged in that and there was but that one upon which to rest the judgment sought in the former suit. If the interveners could litigate the issue, then, if defeated, any other citizen of the city could secure an injunction with as much justice and right as the injunction now threatened could be issued, and this might be followed up by each citizen, for interveners had no right superior to any other. Reducing the proposition to this absurdity demonstrates the utter want of any foundation for the suit by interveners or the action of respondent in heretofore granting a writ of injunction.

It is therefore ordered that the Clerk of this Court issue the writ of prohibition directed to James L. Shepherd, Judge of the 32nd Judicial District, and the Interveners, commanding them that they and each of them desist from further interference with or hindrance of the execution of the judgment of this court entered on the 21st day of May, 1911, in cause wherein The Kansas City, Mexico Orient Railroad Company was plaintiff and the City of Sweetwater was defendant.

It is ordered that relators recover all costs of the proceeding against the respondent and interveners.