Boynton v. Brown

• Decision Date: 18 February 1914
• Citation: 164 S.W. 893
• Parties: BOYNTON v. BROWN et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

164 S.W. 893

BOYNTON v. BROWN et al.^†

Court of Civil Appeals of Texas. San Antonio.

February 18, 1914.

Rehearing Denied March 4, 1914.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Mandamus by Alexander Boynton against Clinton G. Brown, Mayor, and Jack W. Neal and others, Aldermen of the City of San Antonio, to compel them to order an election. Decree for defendants, and plaintiff appeals. Affirmed.

See also, 163 S. W. 599, 164 S. W. 897.

E. P. Lipscomb, of San Antonio, for appellant. Geo. R. Gillette and R. J. McMillan, both of San Antonio, for appellees.

FLY, C. J.

This is an application by appellant for a mandamus to compel Clinton G. Brown, mayor, and Jack W. Neal, George W. Saunders, F. A. Chapa, John W. Warren, U. H. Rische, Robert F. Uhr, W. L. Hoefgen, J. R. Baldwin, Albert Steves, Sr., J. R. Lambert, C. T. Fincham, and Leo M. J. Dielmann, aldermen of the city of San Antonio, to order an election submitting the question, "Shall a commission be chosen to frame a new charter," as required by an act of the Thirty-Third Legislature at its regular session in March, 1913. The petition copies the provision of the law of 1913 (Acts 33d Leg. c. 147), known as the "Enabling Act," which provides (section 2) that "the legislative or governing authority of any incorporated city, having more than 5,000 inhabitants, may by a two-thirds vote of its members, or upon petition of ten per cent. of the qualified voters of said city, shall provide by ordinance for the submission of the question, `Shall a commission be chosen to frame a new charter?'" And it was alleged that the city of San Antonio is incorporated and has more than 5,000 inhabitants and that there were 12,222 qualified voters in May, 1913, when the last regular city election was held in San Antonio; that in November, 1913, appellant with many others "aggregating more than 1,600 voters and more than ten (10) per cent. of the qualified voters of said city signed and caused to be filed with the said city, and its council, which, under the charter of said city, is made the legislative or governing authority of said city, a petition in conformity with and in compliance with all the provisions of said law, petitioning that said city council provide by ordinance for the submission of the question, `Shall a commission be chosen to frame a new charter?' which petition has been ignored and refused by said city council, and said city council has refused to provide by ordinance or otherwise for the submission of said question, and has refused to submit the same, or make any provision therefor, as required by law; that respondents, without any legal excuse, and without giving any reasons for their action, have refused and failed and continue to refuse and fail to submit said question, or to make any provision whatever therefor." It was also alleged: That the city council were "seeking to thwart said purpose and have constituted and appointed themselves a committee, to prepare certain amendments to the old charter of said city, the purport and character of said amendments being unknown to relator, and being kept a secret by defendants and no official publication thereof being made, all for the purpose of evading and making null the said law and violating the same in letter and spirit, and using the machinery of said city for their own selfish designs and political purposes; and, in pursuance thereof, have stated that they will call an election to be held on or about the 24th day of February, 1914, in the city of San Antonio, for the purpose of voting on said proposed amendments surreptitiously and illegally prepared by them. That if such amendments, so surreptitiously and illegally prepared, are submitted, the effect thereof will be to confuse and make uncertain the charter of said city and operations of the government thereof, to the great and irreparable damage and injury of relator and said taxpayers and qualified voters thereof. That he and they have no adequate remedy at law, and irreparable damage and injury will result to him and them, unless the respondents herein are at once ordered by writ of mandamus to comply with the requirements of said law, as aforesaid." A writ of mandamus was prayed for. Appellees answered by general and special exceptions and answered fully traversing the facts that were pleaded by appellant. It was alleged that the petition presented to the city council was not the petition of 10 per cent. of the qualified voters, that it contained the names of many parties who were not qualified voters of San Antonio, that it had names signed to it that were not signed by the parties named, that in at least 60 instances the same parties signed the petition many times, that in considering the petition the council had to determine many issues of fact as to residence of the signers and their qualification to vote, to determine the number of qualified voters in the said city at that time, and that in the exercise of their judgment and discretion they ascertained and determined the petition did not constitute one made by 10 per cent. of the qualified voters. It was further alleged that on January 15, 1914, an ordinance had been passed submitting amendments to the charter for the adoption or rejection of the people at an election to be held on February 24, 1914. A number of special exceptions to the answer were filed.

The exceptions filed by both parties were overruled, and the court, upon consideration of the petition and answer, "concluded that the questions of what number of qualified voters there were in the city of San Antonio on the date of the filing of the petition with the city council, * * * and also the question of whether or not the petition so presented to the city council was the petition of 10 per cent. of the qualified voters residing within the city limits of the city of San Antonio, were questions which were judicial in their nature and were not merely ministerial acts; and respondents' answer having disclosed that said petition had been considered and the facts inquired into, and that the city council had deemed the same insufficient and had refused to grant the prayer contained in said petition; and there being, in the opinion of the court, no allegation in relator's petition raising the issue that such action of the council was arbitrary or that their action was attended with any unfairness in the investigation of the facts, or that there was any abuse on their part in the exercise of the powers conferred upon them by law—the court was of opinion that it had no power to enter upon an original inquiry as to whether or not said petition did in fact contain 10 per cent. of the qualified voters within the city limits of the city of San Antonio at the time the same was filed with the city council and thereupon dismissed the petition for mandamus." A decree was accordingly so entered.

This cause was filed in this court on February 2, 1914, and on February 4th, appellant applied to this court for a temporary writ to restrain the city council from holding the election on February 24th, which was refused in a written opinion on the ground that this court did not have the jurisdiction to grant an injunction in this case. Afterwards, a temporary injunction was applied for to the district court and denied, and an appeal from the order taken to this court. The matter of injunction is so indissolubly connected with and dependent upon our decision in the mandamus case that both cases were submitted and will be considered together, as well as another application for injunction filed in this court to prevent the district court from taking any action in regard to the injunction which had been previously denied and had been appealed to this court.

The act...