Black v. Strength

• Decision Date: 13 December 1922
• Docket Number: (No. 3557.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 246 S.W. 79
• Parties: BLACK et al. v. STRENGTH, County Judge, et al.
• Court: Texas Supreme Court

246 S.W. 79

BLACK et al. v. STRENGTH, County Judge, et al.

(No. 3557.)^*

Supreme Court of Texas.

December 13, 1922.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by J. M. Black and others against W. H. Strength, County Judge, and others, for an injunction. A judgment granting the injunction was reversed by the Court of Civil Appeals (226 S. W. 758), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed, and that of the district court affirmed.

See, also, 241 S. W. 281.

Abney & Young and H. T. Lyttleton, all of Marshall, for plaintiffs in error.

J. H. T. Bibb, of Marshall, for defendants in error.

GREENWOOD, J.

On March 10, 1919, the commissioners' court of Harrison county entered an order for an election, to be held on April 19, 1919, to determine whether or not the bonds of the county should be issued for $1,450,000, bearing interest at the rate of 5 per cent. per annum, maturing not later than 40 years as might be fixed by the court, for the purpose of constructing and maintaining macadamized, graveled, or paved roads throughout the county.

Notice of the election was given by publication of a copy of the order in a newspaper for four weeks.

At a regular term of the commissioners' court, on April 14, 1919, the following order was adopted and entered on the minutes of the court, viz.:

"It is moved and carried that if the bond issue should carry that the Hynson Springs road be improved from Marshall to the intersection of the Longview and Jefferson road, and that the Longview and Jefferson road be improved from said point of intersection to the Gregg county line, and the Hallville and Harleton road be improved from Hallville to Harleton. It is also moved and carried that if the bond issue should carry that the road from Harleton to the county line by way of Smyrna be improved, and that the road from Harleton to the county line by way of Eagle creek be improved."

On April 19, 1919, the election resulted in 1,740 votes for the issuance of the bonds to 162 votes against their issuance. The result was declared and some of the bonds were issued and sold.

The commissioners' court, on December 8, 1919, made an order for certain road construction to take precedence over the improvement of the roads mentioned in the order of April 14, 1919, in pursuance of a plan which would probably exhaust the proceeds of the bond issue, leaving unimproved the roads mentioned in said order of April 14, 1919.

Plaintiffs in error, owning property subject to taxation in Harrison county and on the roads specified in the order of April 14, 1919, brought this suit to secure an injunction to compel the commissioners' court to improve said specified roads and to desist from expending on other highways the entire proceeds of the bonds. The trial in the court below resulted in a judgment granting the injunction. The honorable Court of Civil Appeals reversed this judgment and rendered judgment that plaintiffs in error take nothing by their suit. 226 S. W. 758. Two of the justices were of the opinion that the voters were entitled to act on the assumption that nothing not embodied in the order for the election nor in the notices thereof, though embraced in a duly recorded order of the commissioners' court, could be effective to control the particular roads to be constructed or improved, because the statutes contemplated that the purpose of the election be disclosed alone by the order for the election, and by the notices, and because any order attempting to bind the commissioners' court to exercise its discretion in a particular way was void as contrary to public policy. It is ably...